# Munoz v. Citimortgage, Inc.

> District Court, M.D. Florida · September 10, 2021

URL: https://www.frixlaw.com/law-library/cases/10108370

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** September 10, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

34

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10108370. Public record. Not legal advice.