Munoz v. Citimortgage, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

SHEILA R. MUNOZ, and

RAYMOND MUNOZ,

Plaintiffs,

v. Case No. 8:20-cv-2311-VMC-AEP

CITIMORTGAGE, INC.,

Defendant.

____________________________/

ORDER

This matter comes before the Court upon consideration of

Defendant CitiMortgage, Inc.’s Motion for Summary Judgment

(Doc. # 54), filed on June 30, 2021, and Plaintiffs Sheila

and Raymond Munozes’ Motion for Partial Summary Judgment,

filed on July 1, 2021 (Doc. # 57). Both Motions have been

fully briefed. (Doc. ## 60, 62, 63, 65). For the reasons set

forth below, CitiMortgage’s Motion is granted and the

Munozes’ Motion is denied.

I. Background

In April 2006, the Munozes executed a promissory note

and mortgage on their property. (Doc. # 45-1 at 2).

CitiMortgage serviced the Munozes’ mortgage from July 2008

through April 2019. (Doc. # 56-1 at 14). In April 2019, Cenlar

began servicing the Munozes’ mortgage. (Doc. # 56 at 3).

In July 2010, the Munozes modified the terms of their

loan under the federal government’s Home Affordable

Modification Program. (Doc. # 45-1 at 28—33).

The Munozes argue that beginning in 2017, CitiMortgage

misapplied payments, failed to apply payments to principal or

escrow, and charged improper fees. (Doc. # 45-1 at 39—41).

However, the Munozes admitted that they began making partial

payments in June 2018. (Doc. # 45 at 5). The terms of the

CitiMortgage loan agreement stipulated that any payments

received from a borrower were first applied to interest, then

to principal, then to escrow. (Doc. # 45-1 at 14).

Because of perceived errors in CitiMortgage’s servicing

of the Munozes’ mortgage, the Munozes sent CitiMortgage a

letter on May 6, 2019. (Id. at 37—42). CitiMortgage received

this letter on May 7, 2019. (Doc. # 56-1 at 13). The Munozes

made thirteen requests for information and alleged five

notices of error in the letter. (Doc. # 45-1 at 37—42).

CitiMortgage acknowledged receipt of the Munozes’ letter

on May 15, 2019. (Doc. # 56-1 at 9). CitiMortgage replied to

the letter on June 12, 2019. (Id. at 13). In its reply,

CitiMortgage provided the Munozes with information in

response to the requests for information and a written reply

in response to each notice of error. (Id. at 14). CitiMortgage

also sent the Munozes documentation, including payment and

transaction histories. (Doc. # 45 at 6). With regard to

notices of error three through five, CitiMortgage asked the

Munozes to provide more information to help it identify the

alleged error. (Doc. # 56-1 at 14). CitiMortgage’s response

contained contact information, including a telephone number,

for a point of contact going forward. (Id.).

The Munozes allege that their letter was a Qualified

Written Request (“QWR”) under Section 2605(e) of the Real

Estate Settlement Procedures Act (“RESPA.”). (Doc. # 57 at 1—

2). They allege that CitiMortgage provided an untimely and

inadequate response to their QWR, which caused them actual

and statutory damages. (Doc. # 60 at 15). In their second

amended complaint, the Munozes claimed that CitiMortgage’s

responses to paragraphs 2, 5, 12, and 13 of the Munozes’ May

6 letter were inadequate, as well as CitiMortgage’s responses

to the second through fifth notices of error. (Doc. # 45 at

7—8, 9, 11, 13, 15). The Munozes continue to dispute

CitiMortgage’s responses to those requests for information

and notices of error at summary judgment. (Doc. # 60 at 8—

10).

After filing two complaints that this Court dismissed,

the Munozes filed a second amended complaint on March 10,

2021. (Doc. # 45). On June 30, 2021, CitiMortgage moved for

summary judgment. (Doc. # 54). The Munozes’ moved for partial

summary judgment on July 1, 2021. (Doc. # 57). Both parties

responded. (Doc. ## 60; 62). Both parties replied. (Doc. ##

63; 65). The motions are now ripe for review.

II. Legal Standard

Summary judgment is appropriate “if the movant shows

that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). A factual dispute alone is not enough to

defeat a properly pled motion for summary judgment; only the

existence of a genuine issue of material fact will preclude

a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247—48 (1986).

An issue is genuine if the evidence is such that a

reasonable jury could return a verdict for the non-moving

party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742

(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g

Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if

it may affect the outcome of the suit under the governing

law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.

1997). The moving party bears the initial burden of showing

the Court, by reference to materials on file, that there are

no genuine issues of material fact that should be decided at

trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260

(11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986)). “When a moving party has discharged its

burden, the non-moving party must then ‘go beyond the

pleadings,’ and by its own affidavits, or by ‘depositions,

answers to interrogatories, and admissions on file,’

designate specific facts showing that there is a genuine issue

for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,

593-94 (11th Cir. 1995) (quoting Celotex, 477 U.S. at 324).

If there is a conflict between the parties’ allegations

or evidence, the non-moving party’s evidence is presumed to

be true and all reasonable inferences must be drawn in the

non-moving party’s favor. Shotz v. City of Plantation, 344

F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder

evaluating the evidence could draw more than one inference

from the facts, and if that inference introduces a genuine

issue of material fact, the Court should not grant summary

judgment. Samples ex rel. Samples v. City of Atlanta, 846

F.2d 1328, 1330 (11th Cir. 1988). But, if the non-movant’s

response consists of nothing “more than a repetition of his

[conclusory] allegations,” summary judgment is not only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034

(11th Cir. 1981).

Finally, the filing of cross-motions for summary

judgment does not give rise to any presumption that no genuine

issues of material fact exist. Rather, “[c]ross-motions must

be considered separately, as each movant bears the burden of

establishing that no genuine issue of material fact exists

and that it is entitled to judgment as a matter of law.” Shaw

Constructors v. ICF Kaiser Eng’rs, Inc., 395 F.3d 533, 538—

39 (5th Cir. 2004); see also United States v. Oakley, 744

F.2d 1553, 1555 (11th Cir. 1984) (“Cross-motions for summary

judgment will not, in themselves, warrant the court in

granting summary judgment unless one of the parties is

entitled to judgment as a matter of law on facts that are not

genuinely disputed[.]” (citation omitted)).

III. Analysis

The Court will begin by addressing CitiMortgage’s

Motion, followed by the Munozes’ Motion.

A. CitiMortgage’s Motion for Summary Judgment

The Munozes broadly attempt to recover from CitiMortgage

“for failure to adequately respond to the[] Qualified Written

Request (“QWR”) under Section 2605(e) of the Real Estate

Settlement Procedures Act (“RESPA.”).” (Doc. # 60 at 3). In

their second amended complaint, the Munozes claimed that

CitiMortgage violated Section 2605(e)(2)(C) “by failing to

provide [them] with the information and documents requested,

or an explanation why the information sought was unavailable,

no later than 30 days after receipt of the Plaintiff’s

qualified written request.” (Doc. # 45 at 8). The Munozes

specified that CitiMortgage’s response to paragraphs 2, 5,

12, and 13 of the Munozes’ May 6 letter was inadequate. (Id.

at 7—8). The Munozes additionally argued that CitiMortgage

failed to “adequately and reasonably” investigate four of the

five notices of error the Munozes included in their letter.

(Id. at 9, 11, 13, 15). The Munozes maintain these arguments

at summary judgment. (Doc. # 60 at 7—11).

In its Motion for Summary Judgment, CitiMortgage argues

that the Munozes’ RESPA claims fail because its response to

the Munozes’ “vague and inchoate” inquiries and notices of

error was adequate. (Doc. # 54 at 23—24). CitiMortgage also

argues that the Munozes’ damages claims are unsupported. (Id.

at 24).

“To succeed on a claim under § 2605(e), Plaintiffs must

show: (1) that Defendants are servicers; (2) that Defendants

received a qualified written request (“QWR”) from the

borrower; (3) that the QWR related to the servicing of the

loan; (4) that Defendants failed to respond adequately; and

(5) that Plaintiffs are entitled to actual or statutory

damages.” Echeverria v. BAC Home Loans Servicing, LP, 900 F.

Supp. 2d 1299, 1305—06 (M.D. Fla. 2012), aff'd, 523 F. App'x

675 (11th Cir. 2013).

CitiMortgage admits that it serviced the Munozes’ loan.

(Doc. # 54 at 2). However, the parties dispute all other

elements. (Id. at 4—23).

1. CitiMortgage Received a QWR from the Munozes

CitiMortgage argues that the Munozes’ May 6, 2019 letter

was a generic request for information, and not a QWR. (Id. at

4—8).

A QWR “shall be a written correspondence, other than

notice on a payment coupon or other payment medium supplied

by the servicer, that--(i) includes, or otherwise enables the

servicer to identify, the name and account of the borrower;

and (ii) includes a statement of the reasons for the belief

of the borrower, to the extent applicable, that the account

is in error or provides sufficient detail to the servicer

regarding other information sought by the borrower.” 12

U.S.C. § 2605(e)(1)(B). “Section 2605(e)(1)(B)(ii) is written

in the disjunctive . . . a communication can satisfy RESPA by

‘includ[ing] a statement of the reasons . . . that the account

is in error,’ or by ‘provid[ing] sufficient detail to the

servicer regarding other information sought by the

borrower.’” Gnipp v. Bank of Am. N.A., 2:15-cv-99-JES-CM,

2016 WL 4810541, at *5 (M.D. Fla. Sept. 14, 2016) (citations

omitted) (emphasis added). “A qualified written request (or

QWR) may come in the form of a Notice of Error or a Request

for Information.” E.g. St. Claire v. Ditech Fin., LLC, 1:17-

CV-3370-AT-JFK, 2018 WL 4850127, at *3 (N.D. Ga. Sept. 21,

2018).

Drawing all reasonable inferences in the Munozes’ favor,

their May 6 letter was a QWR. The letter identified the

Munozes as the borrowers and disclosed their account number.

(Doc. # 45-1 at 37). Each of the five notices of error

included in the letter stated a reason, albeit a general and

unsupported reason, that the Munozes believed their account

was in error. (Id. at 39—41). Under the terms of Section

2605(e)(1)(B), the Munozes’ letter was therefore a QWR.

2. The QWR Related to Servicing of a Mortgage Loan

Furthermore, the Munozes letter related to the servicing

of their mortgage loan.

Pursuant to Regulation X, which amended RESPA’s mortgage

servicing rules, inquiries or notices of error related to

servicing loans include “a borrower’s request to correct

errors relating to allocation of payments, final balances for

purposes of paying off the loan, or avoiding foreclosure, or

other standard servicer’s duties.” Mortgage Servicing Rules

Under the Real Estate Settlement Procedures Act (Regulation

X), 78 FR 10696-01 (2013). “These standard servicer duties .

. . include, for example, duties to comply with investor

agreements and servicing program guides, to advance payments

to investors, to process and pursue mortgage insurance

claims, to monitor coverage for insurance (e.g., hazard

insurance), to monitor tax delinquencies, to respond to

borrowers regarding mortgage loan problems, to report data on

loan performance to investors and guarantors, and to work

with investors and borrowers on options to mitigate losses

for defaulted mortgage loans.” Id.

In the Munozes’ letter, they asked for information about

their mortgage, and they notified CitiMortgage of several

alleged errors related to their mortgage. (Doc. # 45-1 at 37—

42). The Munozes asked for information about their payments

to CitiMortgage, the allocation of their payments, and fees

posted to their account. (Id. at 37—38). All of this related

to the servicing of their loan. Furthermore, the Munozes’

notified CitiMortgage of CitiMortgage’s alleged

misapplication of monthly payments, missing payments, and

erroneous fees. (Id. at 39—41). Once again, these notices of

error related to the Munozes’ loan with CitiMortgage.

Therefore, the QWR related to the servicing of a mortgage

loan.

3. CitiMortgage Provided an Adequate Response

The Munozes base their claim on the purported inadequacy

of CitiMortgage’s response to their QWR. (Doc. # 45).

CitiMortgage argues that it responded adequately to each of

the Munozes’ requests for information and notices of error,

and that the Munozes’ allegations are entirely unsupported by

the record. (Doc. # 54 at 1).

“Once a servicer receives a borrower’s QWR, it must

‘provide a written response acknowledging receipt of the

correspondence within 5 [business] days.’ Then, within 30

business days, the servicer must (1) correct the asserted

error; (2) explain why it believes the account isn’t in error;

(3) provide the requested information; or (4) explain why the

requested information is unavailable.” Ranger v. Wells Fargo

Bank N.A., 757 F. App’x 896 (11th Cir. 2018) (citing §§

2605(e)(1)—(e)(2)).

First, it is undisputed that CitiMortgage acknowledged

receipt of the Munozes’ QWR after five business days had

passed. (Doc. # 54 at 3 n.2). The Munozes sent the QWR on May

6, 2019. (Doc. # 45-1 at 37). CitiMortgage received it on May

7. (Doc. # 56-1 at 13). Five business days after May 7 was

May 14. Yet CitiMortgage did not respond to the Munozes until

May 15. (Id. at 9). Although CitiMortgage acknowledged

receipt of the QWR one day late, this alone does not establish

an inadequate response.

In order for a delay in acknowledging receipt of a QWR

to form the basis of a viable claim, the delay must have

caused a concrete injury to the claimant. Maldonado v. Ocwen

Loan Servicing, LLC, No. 18-62037-CIV, 2018 WL 6427682, at *7

(S.D. Fla. Dec. 7, 2018) (citing Chadee v. Ocwen Loan

Servicing, LLC, 243 F. Supp. 3d 1283, 1289—90 (M.D. Fla. 2017.

The plaintiff must have suffered compensable damages from the

loan servicer’s delay. Chadee, 243 F. Supp. 3d at 1289—90.

Additionally, the Court can conclude that a Defendant

has not violated RESPA, even with a delay in acknowledgement

of a QWR. Whittaker v. Wells Fargo Bank, N.A., No. 6:12-cv-

98-JA-GJK, 2014 WL 5426497, at *6 (M.D. Fla. Oct. 23, 2014).

In a case out of the Middle District of Florida, the mortgage

servicer sent a response to a QWR one day after the RESPA

deadline. Id. The Court acknowledged that “the first written

response” by the mortgage servicer “was one business day too

late” and the mortgage servicer “did not acknowledge receipt

of the [] QWR within the time period set forth in RESPA.” Id.

However, the Court “conclude[d]” that the mortgage servicer’s

acknowledgement, although one day late, was “a sufficient

acknowledgement of Plaintiff’s QWR.” Id.

Here, the Munozes do not claim to have suffered any

injury from CitiMortgage’s one-day delay in their second

amended complaint or response to CitiMortgage’s Motion for

Summary Judgment. In the second amended complaint, the

Munozes simply asserted that “CitiMortgage’s untimely and

inadequate response violated RESPA, 12 U.S.C. § 2605(e)(1)(A)

and 12 C.F.R §§ 1024.36(c) and 1024.35(d), by failing to

provide a written response acknowledging receipt of the

Plaintiff’s qualified written request no later than 5 days

after receipt of the request.” (Doc. # 45 at 16). The Munozes

have offered no evidence subsequently showing an impact from

a one-day delay. The one-day delay is insufficient to

establish a RESPA violation.

Next, CitiMortgage complied with the thirty-day deadline

to respond substantively to the issues raised in the QWR.

CitiMortgage received the Munozes’ QWR on May 7, 2019. (Doc.

# 56-1 at 13). Thirty business days after May 7, excluding

Memorial Day, was June 19. CitiMortgage responded to the

Munozes’ QWR on June 12, 2019. (Id. at 12).

Because CitiMortgage complied with the thirty-day

response deadline, the issue becomes whether CitiMortgage’s

response was adequate under the statute. Regarding requests

for information, mortgage servicers must “provide the

borrower with a written explanation or clarification that

includes--(i) information requested by the borrower or an

explanation of why the information requested is unavailable

or cannot be obtained by the servicer; and (ii) the name and

telephone number of an individual employed by, or the office

or department of, the servicer who can provide assistance to

the borrower.” 12 U.S.C. § 2605(e)(2)(C).

Regarding notices of error, “a servicer must respond by

fixing the error, crediting the borrower’s account, and

notifying the borrower; or by concluding that there is no

error based on an investigation and then explaining that

conclusion in writing to the borrower.” Renfroe v. Nationstar

Mortg., LLC, 822 F.3d 1241, 1244 (11th Cir. 2016).

The servicer may also ask for more information if the

QWR fails to sufficiently identify the error. RESPA, as

amended by Regulation X, allows servicers to request

information from borrowers “in connection with the

investigation of an asserted error.” 12 C.F.R. §

1024.35(e)(2). The servicer may not “[r]equire a borrower to

provide such information as a condition of investigating an

asserted error” or “[d]etermine that no error occurred

because the borrower failed to provide any requested

information without conducting a reasonable investigation.”

Id. “A servicer’s obligation is to ‘fairly meet the substance

of the QWR without being compelled to guess what the

[borrowers] believed were the errors in the account or to

dream-up and refute hypothetical reasons for the [borrowers’]

vague discontent.’” Russell v. Nationstar Mortg., LLC, No.

1461977CIVBLOOMVALLE, 2015 WL 5819663, at *7 (S.D. Fla. Oct.

6, 2015) (citations omitted).

Importantly, RESPA “does not require the servicer to

provide the resolution or explanation desired by the

borrower; it requires the servicer to provide a statement of

its reasons.” Whittaker, 2014 WL 5426497, at *8. The mortgage

servicer’s response need not answer whether the servicer’s

actions “were the appropriate actions under the terms of the

mortgage.” Id. Instead, it only matters whether the letter

from the mortgage servicer “complied with RESPA.” Id.

Here, the Munozes argue that CitiMortgage’s responses to

four requests for information and four notices of error were

inadequate. (Doc. ## 45 at 7—9, 11, 13, 15; 60 at 8—10). The

Munozes took issue with CitiMortgage’s responses to the

requests for information numbered 2, 5, 12, and 13 in their

May 6 letter. (Id.). They contested CitiMortgage’s responses

to the second through fifth notices of error. (Id.).

CitiMortgage responded to all requests for information and

notices of error in one letter, and included the name,

address, and telephone number of a contact person in that

letter. (Doc. # 56-1 at 14—15).

In the first disputed request for information, the

Munozes asked for “[t]he total amount, separately listed and

identified, for any unpaid principal, interest, escrow

charges, and other charges due and owing as of the present

date.” (Doc. # 45-1 at 37). CitiMortgage replied: “Servicing

of this account transferred to CENLAR servicing on April 1,

2019. CENLAR servicing has the current amounts due.” (Doc. #

56-1 at 13). In their second amended complaint, the Munozes

argued that this response was inadequate “because it is

required by RESPA to provide the requested information from

its loan file instead of passing the buck to Cenlar and

because Cenlar claimed it did not receive all of this

information.” (Doc. # 45 at 7). The Munozes continue to

dispute the adequacy of this answer at summary judgment. (Doc.

# 60 at 8). However, the Munozes provided no hint as to which

section of RESPA this response violated. Furthermore, the

request for information, sent May 6, 2019, related to

amounts “due and owing as of the present date.” (Doc. # 45-1

at 37). As of April 1, 2019, CitiMortgage no longer serviced

the Munozes’ loan. (Doc. # 56 at 5). Cenlar did. (Id.).

Therefore, although the Munozes might not have liked the

answer they received, it was appropriate under the

circumstances, taking all evidence in the Munozes’ favor and

making all reasonable inferences in their favor.

The second disputed request for information asked for:

“The amount, payment date, purpose, and recipient of all

foreclosure expenses, late charges, NSF check charges,

appraisal fees, property inspection/preservation fees, force

placed insurance charges, legal fees, bankruptcy/proof of

claim fees, recoverable corporate advances, and other

expenses or costs that have been charged and/or assessed to

Sheila and Raymond Munoz’s mortgage account from the

beginning of the loan to the present date.” (Doc. # 45-1 at

38). CitiMortgage responded by sending the Munozes a copy of

their payment history. (Doc. # 56-1 at 13). In the second

amended complaint, the Munozes took issue with this because

“the loan payment history only provides vague and cryptic

descriptions of the items that are unascertainable to Munozes

and RESPA requires CitiMortgage to provide the detailed

information requested.” (Doc. # 45 at 7). At summary judgment,

the Munozes merely argue that the Munozes sent CitiMortgage

a valid request for information, and CitiMortgage owed the

Munozes a sufficient response. (Doc. # 60 at 10). The Munozes

thusly did not dispute that CitiMortgage turned over the

requested information, they just contended that the

information was “vague and cryptic.” But RESPA does not

penalize the mortgage servicer for providing information that

a borrower has difficulty understanding, as long as the

servicer provided the information requested by the borrower.

12 U.S.C. § 2605(e)(2)(C).

In the last two disputed requests for information, the

Munozes asked for any notes created by CitiMortgage

reflecting communication with the Munozes, and any

information contained in the servicing file for the Munozes.

(Doc. # 45-1 at 39). CitiMortgage responded by saying that

“[t]he information requested is confidential, proprietary, or

privileged.” (Doc. # 56-1 at 13). The Munozes, in their second

amended complaint, argued that these responses were

inadequate “because it is required by RESPA and Regulation X

to provide the requested information from its loan file.”

(Doc. # 45 at 8). CitiMortgage responded that “[t]hese two

requests clearly exceed, by any measure, the scope of a valid

request for information under 12 C.F.R. § 1024.36.” (Doc. #

54 at 7). At summary judgment, the Munozes argue that

CitiMortgage’s response is “without merit.” (Doc. # 60 at

10).

RESPA requires servicers to provide the requested

information or “an explanation of why the information

requested is unavailable or cannot be obtained by the

servicer.” 12 U.S.C. § 2605(e)(2)(C). CitiMortgage provided

an explanation as to why it would not turn over the requested

information when it explained that the information was

“confidential, proprietary, or privileged.” (Doc. # 56-1 at

13). Furthermore, the Munozes have offered no evidence

countering CitiMortgage’s argument that these requests for

information exceeded the scope of 12 C.F.R. § 1024.36. (Doc.

# 60 at 10).

Moving onto the contested notices of error, the Munozes

objected to CitiMortgage’s response to the Munozes’ second

notice of error. (Doc. ## 45 at 8; 60 at 10—11). In the second

notice of error, the Munozes wrote that: “beginning June 2017,

CitiMortgage began misapplying the monthly payments made by

Sheila and Raymond Munoz by not crediting the payments to

principal, interest or escrow. It appears CitiMortgage might

have instead placed the funds into a suspense account.” (Doc.

# 45-1 at 39—40). CitiMortgage replied that it had

“researched” the payment history and had found “no [e]rrors

in the application of the stated payments.” (Doc. # 56-1 at

14).

Because CitiMortgage concluded that there was no error,

a RESPA violation did not occur if it based its conclusion

upon an investigation and then explained that conclusion in

writing. Renfroe, 822 F.3d at 1244. CitiMortgage met that

burden by explaining that it had researched the Munozes’

payment history in its letter to the Munozes.

Furthermore, the Munozes did not dispute that

CitiMortgage researched the error and explained its findings

in writing. Instead, the Munozes argued that because

CitiMortgage did not fix the “clear” error, the investigation

must have been inadequate and unreasonable. (Doc. ## 45 at 9;

57 at 19). This argument necessarily fails. In a similar RESPA

case, the court granted summary judgment for the mortgage

servicer when “[plaintiff’s] contention that [the servicer]

failed to conduct a reasonable investigation is premised

entirely on her disagreement with [the servicer’s]

determination that no error occurred.” Finster v. U.S. Bank

Nat’l Ass’n, 245 F. Supp. 3d 1304, 1316 (M.D. Fla. 2017),

aff’d, 723 F. App’x 877 (11th Cir. 2018). Such is the case

here.

In the Munozes’ third, fourth, and fifth notices of

error, the Munozes contended that CitiMortgage misapplied the

Munozes’ loan payments, which resulted in an “erroneous”

escrow account balance, and that CitiMortgage charged a fee

without any explanation. (Doc. # 45-1 at 40—41). With each

notice of error, CitiMortgage asked the Munozes to provide

more information. (Doc. # 56-1 at 14).

Regarding these notices of error, the Munozes generally

contend at summary judgment that “CitiMortgage interjects

into its arguments numerous assertions that are more

unsupported assertions of CitiMortgage’s attitude of disdain

for its borrowers, Munozes, than statements of fact.” (Doc.

# 60 at 10). In their second amended complaint, however, the

Munozes objected to two specific aspects of CitiMortgage’s

responses. (Doc. # 45 at 11—15). First, they argued that if

CitiMortgage had conducted an adequate and reasonable

investigation, it would have recognized and corrected the

errors. (Id.). Second, the Munozes contended that they should

not have to investigate themselves. (Id.). The Munozes’ first

argument fails for the same reason their argument regarding

the second notice of error failed. A plaintiff’s contention

that a servicer failed to conduct a reasonable investigation

that is premised solely on his disagreement with the outcome

of the investigation is meritless. Finster, 245 F. Supp. 3d

at 1316.

The second argument fails because servicers may request

clarifying information when QWRs fail to sufficiently

identify the alleged error. 12 C.F.R. § 1024.35(e)(2);

Russell, 2015 WL 5819663, at *7. Here, the third, fourth, and

fifth notices of error identified payment misapplication,

incorrect balances, and improper fees. (Doc. # 45-1 at 39—

41). But the QWR contained insufficient detail as to which

payments had been misapplied and fees charged to allow

CitiMortgage to identify and investigate the errors. Drawing

all reasonable inferences in favor of the Munozes,

CitiMortgage did not act improperly by asking the Munozes for

more information because a servicer does not need to “guess

what the [borrowers] believed were the errors in the account

or to dream-up and refute hypothetical reasons for the

[borrowers’] vague discontent.’” Russell, 2015 WL 5819663, at

*7.

Summary judgment is granted in favor of CitiMortgage.

4. The Munozes Failed to Establish Damages

There is no genuine issue of material fact as to whether

CitiMortgage adequately responded to the Munozes’ QWR. But

even if there were, summary judgment would still be

appropriate because there is no genuine issue of material

fact as to damages.

“[D]amages are an essential element in pleading a RESPA

claim.” Renfroe, 822 F.3d AT 1246. “If a servicer fails to

comply with RESPA, then the borrower may recover ‘any actual

damages to the borrower as a result of the failure,’ as well

as statutory damages ‘in the case of a pattern of

noncompliance.’” Hernandez v. J.P. Morgan Chase Bank, No. 14-

24254-CIV-GOODMAN, 2016 WL 2889037, at *6 (S.D. Fla. May 16,

2016) (quoting 12 U.S.C. § 2605(f)(1)). Actual damages

include pecuniary damages, such as “out-of-pocket expenses

incurred dealing with [a] RESPA violation,” “late fees,” and

“denial of credit or denial [of] access to . . . [a] credit

line.” Mintu v. Nationstar Mortg. LLC, No. 1:14-CV-3471-ODE-

JCF, 2015 WL 11622469, at *4 (N.D. Ga. Apr. 13, 2015)

(citation omitted), report and recommendation adopted, No.

1:14-CV-3471-0DE-JCF, 2015 WL 11622473 (N.D. Ga. May 6,

2015). Plaintiffs may also recover non-pecuniary damages,

including for emotional distress. Ranger, 757 F. App’x at

902. A plaintiff’s testimony can support emotional distress

damages, but “the testimony must establish that the plaintiff

suffered demonstrable emotional distress, which must be

sufficiently articulated; neither conclusory statements that

the plaintiff suffered emotional distress nor the mere fact

that a . . . violation occurred supports an award for

compensatory damages.” McLean v. GMAC Mortg. Corp., 398 F.

App'x 467, 471 (11th Cir. 2010) (quoting Akouri v. Fla.

Dep't of Transp., 408 F.3d 1338, 1345 (11th Cir.2005)). “Where

a plaintiff comes forth with only blanket statements and a

list of symptoms, courts in the Middle District of Florida

have declined to award actual damages for emotional

distress.” Lane v. Accredited Collection Agency Inc., No.

6:13-cv-GKS-GJK, 2014 WL 1685677, at *8 (M.D. Fla. Apr. 28,

2014).

Importantly, to obtain actual damages, plaintiffs must

“establish a causal link between” the alleged RESPA violation

and their damages. Renfroe, 822 F.3d at 1246. Failure to

adequately investigate a notice of error in a QWR, resulting

in a failure to refund a borrower’s account, can provide such

a causal link. Id. at 1246—47. However, for a causal link to

exist between an inadequate investigation into a QWR and

actual damages, the borrower must have specifically asked the

servicer in the QWR to fix what he later claims as actual

damages. See Caldwell v. Nationstar Mortg., LLC, No. 20-

12984, 2021 WL 1229754, at *2—3 (11th Cir. Mar. 31, 2021)

(“Nationstar’s failure to do what Caldwell did ask it to do

— provide information about the mortgage — did not cause his

damages.”). Additionally, borrowers cannot cause their own

actual damages by “fail[ing] to make payments that they knew

they owed.” Russell v. Nationstar Mortg., LLC, No. 14-61977-

CIV, 2015 WL 5029346, at *7 (S.D. Fla. Aug. 26, 2015).

Finally, borrowers must “meaningfully participate” in the

resolution process to claim damages. Russell, 2015 WL

5819663, at *7—8 (holding for Defendant servicer because

Plaintiff borrower “fail[ed] to meaningfully participate in

this resolution process alongside Defendant” by not

responding to Defendant’s request for more detail).

As to statutory damages, Plaintiffs may be entitled to

“recover . . . up to $2,000 per violation if they can show

the violation was part of a ‘pattern or practice of

noncompliance’ with RESPA’s requirements.” Ranger, 757 F.

App’x at 901 n.2 (quoting 12 U.S.C. § 2605(f)(1)(B))).

“[C]ourts have interpreted the term ‘pattern or practice’ in

accordance with the usual meaning of the words.” McLean, 595

F. Supp. 2d at 1365. “‘Pattern or practice’ is not defined by

a specific number of offenses; rather, the term suggests a

standard or routine way of operating.” Miranda v. Ocwen Loan

Servicing, LLC, 148 F. Supp. 3d 1349, 1355 (S.D. Fla. 2015).

“[T]he Eleventh Circuit [has] held that statutory damages may

be sufficiently ple[d] where, in addition to the alleged RESPA

violation against a plaintiff, the complaint alleges

unrelated RESPA violations.” Mejia v. Ocwen Loan Servicing,

LLC, 703 F. App’x 860, 865 (11th Cir. 2017) (citing Renfroe,

822 F.3d at 1247). Finally, the Eleventh Circuit observed in

dicta that “a plaintiff cannot recover pattern-or-practice

damages in the absence of actual damages.” Renfroe, 822 F.3d

at 1247 n.4. District courts have subsequently held that

actual damages are required for statutory damages to be

recoverable. See, e.g., Berene v. Nationstar Mortg. LLC, No.

14-61153-CIV, 2018 WL 7137836, at *9 (S.D. Fla. Feb. 5, 2018),

aff’d, 800 F. App’x 756 (11th Cir. 2020).

Here, the Munozes alleged actual damages stemming from

CitiMortgage’s purported failure to conduct an adequate and

reasonable investigation into the QWR. (Doc. # 57 at 3). In

their second and third notices of error, the Munozes argued

that CitiMortgage misapplied payments totaling $6,049.01.

(Doc. # 45-1 at 39—40). According to the Munozes, an injury

of $6,049.01 resulted from CitiMortgage “failing to conduct

an adequate and reasonable investigation” into the second and

third notices of error. (Doc. # 45 at 9—10). The Munozes

maintained this claim for damages in their response to

CitiMortgage’s Motion for Summary Judgment. (Doc. # 60 at

12).

There are two primary issues with these damages. First,

the Munozes did not provide CitiMortgage with enough

information to identify the alleged misapplication of

payments in their QWR. (Doc. 45-1 at 39—40). In CitiMortgage’s

response to the QWR, it asked the Munozes to provide

information to help identify which payments they thought had

been misapplied. (Doc. # 56-1 at 14). However, the Munozes

never responded to CitiMortgage’s inquiry. (Doc. # 54 at 10;

Doc. # 45 at 11). CitiMortgage thusly gave the Munozes an

opportunity to help identify and fix their purported injury,

and the Munozes failed to participate. When a servicer asks

for additional information in good faith and the borrower

fails to respond, there is no RESPA violation. Russell, 2015

WL 5819663, at *7—8. Instead of meaningfully participating in

the resolution process, the Munozes vaguely alleged payment

misapplication and then sued CitiMortgage for not fixing the

misapplied payments when CitiMortgage had insufficient

information to know which payments the Munozes disputed.

Second, the Munozes did not submit evidence showing payment

misapplication amounting to $6,049.01. In their answers to

CitiMortgage’s interrogatories, the Munozes argued that

CitiMortgage did not credit fourteen payments, totaling

$6,049.01, to their account. (Doc. # 55 at 53). However, the

Munozes’ payment history does not show that CitiMortgage

misapplied the disputed payments. (Doc. # 56-1 at 52—53).

The Munozes’ second category of actual damages is

$972.05 based on two payments that CitiMortgage “failed to

credit” to the Munozes’ loan. (Doc. # 55-1 at 55). This claim

of actual damages fails due to lack of causation. In their

second amended complaint, the Munozes argued that “[t]he

payment history CitiMortgage provided in response to the QWR”

alerted the Munozes to “two other payments that Munozes sent

to CitiMortgage that were confirmed debited from their

checking account by CitiMortgage were not credited to their

loan.” (Doc. # 45 at 11—12). The issue here is that the

Munozes’ alleged RESPA violation is “failure to adequately

respond to the[] Qualified Written Request (“QWR”) under

Section 2605(e) of the Real Estate Settlement Procedures Act

(“RESPA.”).” (Doc. # 60 at 3). But the Munozes only discovered

this alleged injury because of CitiMortgage’s response to the

QWR. CitiMortgage’s response to the QWR may have alerted the

Munozes to the existence of these damages, but it did not

cause the damages. The Munozes did not ask CitiMortgage to

remedy this issue in the QWR, so there is not a causal

connection between it and the alleged inadequate response to

the QWR. See Caldwell, 2021 WL 1229754, at *2—3 (finding

Defendant not liable for not doing what Plaintiff had not

asked it to do in the QWR). Furthermore, the Munozes’ payment

history shows that CitiMortgage credited these two disputed

payments to the Munozes’ account. (Doc. # 56-1 at 55).

The Munozes’ third type of actual damages, discussed in

their fourth notice of error, stems from CitiMortgage’s

failure to properly credit escrow payments to the Munozes’

account. This claim for damages also fails because of a lack

of causation. The Munozes stopped making principal and

interest payments in June 2018, instead only making payments

that they wanted to go toward escrow. (Doc. # 45 at 5).

However, under the terms of the mortgage, any payments

received from a borrower were first applied to interest, then

to principal, then to escrow. (Doc. # 45-1 at 14). The

borrower could not choose to stop paying principal and

interest, and dedicate all payments to escrow. (Id.). The

Munozes thusly “failed to make payments that they knew they

owed.” Russell, 2015 WL 5029346, at *7. In such situations,

there is no causal link between the alleged RESPA violation

and actual damages. Id. And, once more, CitiMortgage asked

the Munozes for help identifying the misapplied payments,

since the QWR provided little detail as to which payments had

been misapplied. (Doc. # 56-1 at 14). The Munozes never

responded to CitiMortgage’s inquiry. (Doc. # 45 at 13). When

borrowers fail to meaningfully participate in a QWR

resolution process, there is no RESPA violation. Russell,

2015 WL 5819663, at *7—8.

The Munozes’ fourth type of damages is $368 charged by

CitiMortgage for fees. (Doc. ## 45 at 15; 57 at 7). The

Munozes argued that these damages arose “[a]s a result of

CitiMortgage’s breach of RESPA by failing to conduct an

adequate and reasonable investigation of Munozes’ fifth

notice of error.” (Doc. # 45 at 15). Multiple causation issues

preclude this type of damages. First, in the QWR, the Munozes

only alleged that CitiMortgage had inappropriately charged

one inspection fee. (Doc. # 45-1 at 41). Each inspection fee

charged by CitiMortgage ranged from $10-$84. (Doc. # 56-1 at

51—55). When CitiMortgage responded to the Munozes’ fifth

notice of error, it sent a transaction history that showed

many inspection fees. (Id.). The Munozes used this

transaction history to claim additional damages, based on the

new fees they discovered, in their second amended complaint.

(Doc. # 45 at 14—15). However, for a causal link to exist

between an inadequate investigation into a QWR and actual

damages, the borrower must have asked in the QWR that the

servicer fix what he later claims as actual damages. Caldwell,

2021 WL 1229754, at *2—3. Second, CitiMortgage explained in

its response to the fifth notice of error that it charged the

inspection fee because “[m]ortgage properties are routinely

inspected during periods of default and bankruptcy.” (Doc. #

56-1 at 14). The Munozes’ contention that CitiMortgage failed

to conduct a reasonable investigation is thusly premised on

their disagreement with the outcome of the investigation.

Such disagreement does not establish that an inadequate

investigation occurred, which is the basis of the Munozes’

claim for damages here. Finster, 245 F. Supp. 3d at 1316.

The Munozes argued in their second amended complaint

that CitiMortgage violated RESPA by providing credit

information to consumer reporting agencies, which caused the

Munozes’ credit score to decrease. (Doc. # 45 at 16).

CitiMortgage submitted a credit report for the Munozes that

showed no open mortgages. (Doc. # 55-1 at 45). In their

response to CitiMortgage’s Motion for Summary Judgment, the

Munozes did not offer any evidence supporting damages

suffered due to a decreased credit score. The Munozes have

failed to show that they have incurred any damages in the

form of a decreased credit score.

Finally, the Munozes alleged actual damages of “time and

money spent in [a separate] lawsuit against Cenlar[,]

including the costs and legal fees in the lawsuit,” and

emotional distress in their second amended complaint. (Doc.

# 45 at 18). But once again, they failed to offer evidence in

their response to CitiMortgage’s Motion for Summary Judgment

supporting such damages. Sheila Munoz stated that

CitiMortgage’s refusal to “explain and correct” their account

errors caused the Munozes to file a separate lawsuit against

Cenlar. (Doc. # 61 at 9). She also said that CitiMortgage’s

“failure to adequately respond to [the Munozes’] QWR” caused

emotional distress, including emotional and psychological

trauma and embarrassment. (Id. at 10). Even assuming

CitiMortgage violated RESPA, the Munozes did not explain how

CitiMortgage’s purportedly inadequate investigation into the

QWR caused them to file suit against Cenlar. Furthermore,

although plaintiffs may testify in support of emotional

distress damages, the testimony cannot merely consist of

conclusory statements and a list of symptoms. McLean, 398 F.

App’x at 471; Lane, 2014 WL 1685677, at *8. Here, each of

Sheila Munoz’s statements is conclusory, without evidence or

support. Second, the Munozes have not explained how there is

a causal link between a RESPA violation and the emotional

distress suffered. The Munozes have failed to show that they

incurred any damages in the form of emotional distress or a

subsequent lawsuit.

In addition to actual damages, the Munozes alleged

statutory damages based on CitiMortgage’s “pattern or

practice of non-compliance with the requirements of the

mortgage service provisions of RESPA.” (Doc. # 45 at 19).

However, there can be no statutory damages in the absence of

actual damages. Renfroe, 822 F.3d at 1247 n.4; Berene, 2018

WL 7137836 at *9. Because there is no genuine issue of

material fact as to actual damages, there can be no statutory

damages.

B. Plaintiffs’ Motion

As the Court has already determined that summary

judgment in favor of CitiMortgage on all counts is

appropriate, the Court denies Plaintiffs’ Partial Motion for

Summary Judgment. (Doc. # 57).

Accordingly, it is

ORDERED, ADJUDGED, and DECREED:

(1) Defendant CitiMortgage’s Motion for Summary Judgment

(Doc. # 54) is GRANTED on all counts.

(2) Plaintiffs Sheila and Raymond Munozes’ Motion for

Partial Summary Judgment (Doc. # 57) is DENIED on all

counts.

(3) The Clerk shall enter judgment accordingly and CLOSE

this case.

DONE and ORDERED in Chambers in Tampa, Florida, this

10th day of September, 2021.

hin Gp . een □□

VIR IA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

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