Searle v. RBS Citizens Bank N.A.

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

ROBERT J. SEARLE and *

SUSAN SEARLE, *

*

Plaintiffs, *

*

v. *

Civil ActionNo. 17-cv-10427-ADB

*

RBS CITIZENS, N.A., DITECH *

GREENTREE FINANCIAL, andHARMON *

LAW OFFICES, P.C., *

*

Defendants. *

MEMORANDUM AND ORDER ON

MOTION FOR PRELIMINARY INJUNCTION AND MOTION TO DISMISS

BURROUGHS, D.J.

Plaintiffs Robert and Susan Searlebring this action against RBS Citizens, N.A.

(“Citizens”) and Ditech Financial LLC, formerly known as Green Tree Servicing LLC

(“Ditech/Green Tree”) (collectively “Defendants”),in an attempt to avert the foreclosureof their

home located at 9 Prospect St., Merrimac, Massachusetts.Plaintiffs claim that Defendants failed

to respond totheir requests to produce certain documents related to the mortgage, and thus

violated(1) the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. §2605(e)(1)(A)

and (B),andRegulation X at 24 C.F.R. §3500; (2) the Fair Debt Collection Practices Act

(“FDCPA”),15 U.S.C. §1692(a); and (3) the Truth in Lending Act (“TILA”),15 U.S.C.

§1640(a)(1) and (2).[ECF No. 19]. Currently pending are Plaintiffs’ motionfor leave to file a

Second Amended Complaint and motionfor a preliminary injunction to prevent the foreclosure

of the property, and Defendants’ motion to dismiss. [ECF Nos. 21,22,26].

For the reasons stated herein, themotion for leave to file a Second Amended Complaint

andmotion to dismiss [ECF Nos. 21, 22] areGRANTEDand themotion for apreliminary

injunction[ECF No. 26]is DENIED.

I. FACTUAL AND PROCEDURAL BACKGROUND1

On June 10, 2005, Plaintiffs took out a $50,000home equity line of credit2 from First

Horizon Home Loan Corporation. [ECF Nos. 26at 1, 26-1at 23].3 Theline of credit servedas a

second lien behind their original mortgage.[ECF No. 26-1at 2].Theagreement that governed

the line of credit stipulated that the initial interest rate would be 6.5%, with a five-year draw

period. After the end of the draw period,the loan would go into afifteen year repayment period

with a fixed interest rate, during which time the Plaintiffs were to make a monthly payment of

principal plus interest. [ECF No.26at 1].

Plaintiffs allege that as the end of the draw period approached,they realized that their

newpayment was not going to be affordable. [ECF No. 26at 1].By then, Plaintiffs had both lost

their jobs and were struggling financially due to theirreduction in income. Id. Because of this,

for the first ten months after the loanconverted to afixed rate loan, they continued to make

“interest only” payments, even though the agreement required them to payinterest plus principal.

Id. Along with each “interest only” payment made over the ten-month period, Plaintiffs sent

1 The following facts are set forth in the Amended Complaint and Second Amended Complaint.

In considering the merits of a motion to dismiss, the Court must accept all factual allegations in

the complaint as true and drawall reasonable inferences in the plaintiff’s favor.Speleos v. BAC

Home Loans Servicing, L.P., 824 F. Supp. 2d 226, 230 (D. Mass. 2011).

2 The line of credit agreement and mortgage may be considered at the motion to dismiss stage

because they are publiclyrecorded, central to Plaintiffs’ claims, and referenced in the complaint.

SeeMiss. Pub. Emps.Ret. Sys. v. BostonScientific Corp., 523 F.3d 75, 86 (1st Cir. 2008)

(citing Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993)).

3 The Court grants the motion to file a second amended complaint, which the Court has

reviewed. See Fed R. Civ. P. 15(a)(2) (“The court should freely give leave when justice so

requires.”). Allowing the motion has no impact on the outcome of this motion to dismiss,

because the proposed Second Amended Complaint does not raise any new claims, but merely

provides greater detail and clarification.

letters to the lender, Citizens,4 and the servicerat that time,Green Tree,5requesting a loan

modification. [ECF Nos.26-1 at 1–4,26-2 at 25].After ten months, theservicersent aletter to

Plaintiffs statingthat it “would no longer accept [the] ‘interest only’ payments and would

foreclose on [Plaintiffs’ property] if [they] did not pay the monthly [p]rincipal and [i]nterest

payment they had requested.” [ECF No. 26-1at 2].Plaintiffs were persistent in their efforts to

research and request a loan modification, including making daily inquiries over a period of

several months. Id.at 2–3.Plaintiffs assert that eventually,the serviceradvised them that it does

not make loan modifications. [ECF Nos. 26 at 2, 26-2 at 17, 29].

In early 2012, Plaintiffs sought the help of the Massachusetts Attorney General’s Office,

and over the next year, that office assisted Plaintiffs in their efforts to obtain a modification by

coordinating communication with Green Tree. [ECFNos. 26 at 2,26-1 at 20–22, 26-2 at 11–13,

16]. After some back and forth, Plaintiffs were able to obtain a modification. [ECF No. 26-1at

3]. In early April 2012, Green Tree sent Plaintiffs documents to modifythe interest rate and

extend the maturity date of the loan by eighteen months (“the Modification Agreement”). [ECF

No.26 at 3,26-2 at 2–9]. Plaintiffs claim that, when they reviewed the documents, they realized

that the interest rate would actually go up, it was not clear what the monthly payment would be,

and the documents were otherwise “shoddy” and “inconsistent.” [ECF No. 26-1 at 2–5]. Despite

these concerns,however, Plaintiffs signed the Modification Agreement on April 19, 2012.[ECF

No. 21-5 at 3].

4 On December 27, 2010, the home equity line of credit agreement was assigned from First

Horizon to Citizens. [ECF No. 26-2 at 41].A copy of the assignment was attached to the

complaint. SeeTrans-Spec Truck Serv., Inc. v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir. 2008)

(“Exhibits attached to the complaint are properly considered part of the pleading ‘for all

purposes,’ includingRule 12(b)(6)” (quoting Fed. R. Civ. P. 10(c))).

5 On August 25,2010,the servicing of the home equity line of credit agreement was transferred

from First Tennessee Bank National Association to Green Tree. [ECF No. 26-2 at 49].

Thereafter, Plaintiffs wrote four letters, which they believed to be “Qualified Written

Requests” under RESPA, from November 9, 2014 to November 4, 2016. [ECF Nos. 26 at 4, 26-2

at 2-9]. Plaintiffs sent copies of each letter to the lender, Citizens, and to the servicer. Id.

Plaintiffs believed that Citizens and Ditech/Green Tree did not have the legal right to collect

payments. In a letter to Green Tree, dated March 28, 2015, Plaintiffs requested, among other

items:

e “copies of ALL documents since consummation of the loan to further insure a Validation

of Debt with also a Request for Accounting;”

e “an itemized accounting of the “Corporate Advances’ that have been accumulating on

each monthly statement and where they derive;”

e “any and all reference to ‘insurance’ and costs associated with insurance and/or taxes;”

and

e “validation of who owns the note and. ..a copy of same along with copy of the

assignments from the original note holder to the current note holder.”

[ECF No. 26-2 at 5]. On that same date, Plaintiffs requested similar documents from Citizens.°

Id. at 3-4. Plaintiffs allege that Defendant “failed to comply on all requests,” though they also

acknowledge that they received replies that contained monthly statements and a “spreadsheet

accounting.” [ECF No. 26 at 4].

The complaint states that Ditech became the servicer of the loan in late 2015. Id. at 8.

The complaint does not describe the relationship between Green Tree and Ditech, or assert that

6 Tn addition to what they requested in their letter to Green Tree, Plaintiffs also requested that

Citizens provide documentation validating its authority to collect or service the loan, loan

accounting records, and documentation identifying all other parties’ involvement and interest in

the loan. [ECF No. 26-2 at 3-4].

servicing rights were transferred from Green Tree to Ditech. Defendants clarify that Ditech

previously did business under the name “Green Tree Servicing”[ECF No. 21 at 1–2],which

Plaintiffs do not dispute.

Plaintiffs contend that they have suffered financially and have been kept in “foreclosure

status”for thepast seven years. [ECF No. 26 at 9]. They claim that “[c]ontinuing to avoid

compliance with this request for pertinent documents has damaged [them] and continues to keep

them from moving forward in obtaining financing elsewhere due to the ‘Foreclosure Status’ they

are forced to remain in.” Id. at 5. Additionally, Plaintiffs allege that Defendants have

“threaten[ed] to foreclose on the property, and provide[d] foreclosure auction dates that

encourage the public to visit their home to take pictures.” [ECF No. 26-1at 3].Furthermore,

Plaintiffs assert that many individuals have approached the house, knocked on the door, and

asked if they can buy the house, which Plaintiffs claim is a violation oftheir right to quiet

enjoyment. Id.

On March 6, 2017, Plaintiffs filed theirinitial complaint andmotion for preliminary

injunctionin Essex Superior Court,which requestedthat the court enjoinDefendants from

conducting a foreclosure sale of the property.[ECF No. 28at 2–3].OnMarch 15, 2017,

Defendants removed the case to this Court [ECF No. 1],andon April 5, 2017, they filed a

motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim [ECF No. 9].

OnJune 23, 2017, with leave of the court, Plaintiffs filed an amended complaint and

motion for preliminary injunction.[ECF No.19]. On July 1, 2017, Defendants filed a motion to

dismiss the amended complaint. [ECF No. 21].On August 2, 2017, Plaintiffs movedfor leave to

file a second amended complaint. [ECF No. 22]. On August 30, 2017, Plaintiffs filed their

proposedsecond amended complaint and another motion for apreliminary injunction. [ECF No.

26]. On September 11, 2017,Defendants filed a supplemental opposition to Plaintiffs’ motion for

leave to file a second amended complaint.[ECF No. 28]. Plaintiffs opposedDefendants’motion

to dismiss the amended complaint. [ECF No. 29].

II. MOTION TO DISMISS

A. Standard of Review

On a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil

Procedure 12(b)(6), the Court accepts as true all well-pleaded facts in the complaint and analyzes

those facts “in the light most hospitable to the plaintiff’s theory, and draw[s] all reasonable

inferences for the plaintiff.” United States ex rel. Hutcheson v. Blackstone Med., Inc., 647 F.3d

377, 383 (1st Cir. 2011). Although detailed factual allegationsare not required, the complaint

must set forth“more than labels and conclusions” to survive a motion to dismiss. Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 555 (2007). Furthermore, courts are not bound to accept as true legal

conclusions couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The

facts alleged, when taken together, must therefore be sufficient to “state a claim to relief that is

plausible on its face,” A.G.ex rel. Maddox v. Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013)

(quoting Twombly, 550 U.S. at 570), andmust “raise a right to relief above the speculative

level,”Twombly,550 U.S. at 555. A“formulaic recitation of the elements of a cause of action”

is not enough. Id.Dismissal for failure to state a claim is thus appropriate “[i]f the complaint

does not set forth ‘factual allegations, either direct or inferential, respecting each material

element necessary to sustain recovery under some actionable legal theory.’” Lemelson v. U.S.

Bank Nat’l Ass’n, 721 F.3d 18, 21 (1st Cir. 2013) (quotingHutcheson, 647 F.3d at 384) (further

internal quotations omitted).

When evaluating the sufficiency of a complaint, the Court first “must separate the

complaint’s factual allegations (which must be accepted as true) from its conclusory legal

allegations (which need not be credited).”A.G. ex rel. Maddox, 732 F.3d at 80 (quoting

Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012)).Second, the Court must

determine whether the remaining factual content allows a “reasonable inference that the

defendant is liable for the misconduct alleged.” Id. “Although evaluating the plausibility of a

legal claim requires the reviewing court to draw on its judicial experience and common sense,

the court may not disregard properly pled factual allegations, even if it strikes a savvy judge that

actual proof of those facts is improbable.” Ocasio-Hernandez v. Fortuño-Burset, 640 F.3d 1, 12

(1st Cir. 2011) (internal quotations and citation omitted).

B. Claims Alleged

Plaintiffs allege that Defendants committed violations of TILA, 15U.S.C.§1640(a)(1)

and (2); RESPA,12U.S.C.§2605(e)(1)(A) and (B); and the FDCPA,15 U.S.C.§1692(a),

through their responses, or lack thereof, to Plaintiffs’requests for aloan modification and

document production.

1. TILA Violations

Plaintiffs allege that Defendants violated TILA by failing to provide certain loan

disclosures. TILA’s purpose is to “assure a meaningful disclosure of all credit terms so the

consumer will be able to compare. . . the various credit terms available to him [or her] . . . to

avoid an uninformed use of credit, and to protect the consumer against inaccurate [and/or] unfair

credit billing practices.” 15 U.S.C.§ 1601(a).For a home equity line of credit, the creditor must

discloseinformation including the interest rate, fees, minimum periodic payments, and

repayment options.See15 U.S.C.§ 1637a.TILA imposes liability on creditors who fail to make

the required disclosures, and in limited circumstances,assignees of creditors can also be held

liable.15U.S.C.§§1640(a), 1641(e); Faiella v. Green Tree Servicing LLC, No. 16-cv-088-JD,

2017 WL 589096, at *3(D.N.H. Feb. 14, 2017)(assigneeliableifviolation is apparent on face

of disclosure statement), appeal docketed, No, 18-1063(1st Cir. Jan. 24, 2018).The statute “uses

the term ‘the disclosure statement’ to refer to [the disclosure] documents provided beforethe

extension of credit.” Id.(emphasis added) (citing Evanto v. Fed. Nat. Mortg. Ass’n, 814 F.3d

1295, 1298 (11th Cir. 2016)); see alsoSignori v. Fed. Nat. Mortg. Ass’n, 934 F. Supp. 2d 1364,

1368 (S.D. Fla. 2013) (“[T]he TILA provisions are clear that the disclosure documents referred

to in Section. . .1641(e)(1) are documents generated in connection with the origination of the

loan.”).

Plaintiffs assert that,during the modification process, the servicer failed to satisfy its

disclosure obligations under TILAbecause it did not include the “mandatory disclosures” with

the terms of the modification, and did not clarifyamounts, costs, or monthly payments due. [ECF

No. 26 at 2–3].Plaintiffs also complain that the Modification Agreement incorrectly stated that

the interest rate would be lowered, when in fact, it was raised from 3.25% to 4%.[ECF No. 26 at

3].Defendants argue that TILA did not require them to provide additional disclosure statements

years after the 2005home equity line of credit was taken out. While this may be a valid

argument, it appears to miss the point. The Court interprets the TILA allegations in the complaint

to relate to the 2012 modification, not the original 2005 line of credit. Specifically, Plaintiffs

claim that TILA required Defendants todisclose the monthly amount that would be due under

the2012Modification Agreement, and alsoother “amounts” and “costs,”before the parties

entered into the Modification Agreement, which Defendants did not do.

TILA does not necessarily treat a modification as a new transaction that triggers renewed

disclosure requirements. While the statutedoes not specifically address whether the modification

of a home equity line of credit triggers additional disclosure requirements, it does allowa

creditor to modify a term of a home equity line of credit if the “consumer specifically agrees to it

in writing at that time,”12 C.F.R. § 226.5b(f)(3)(iii); this provision makes no mention of any

additional disclosure requirements.TILA alsospecifically addresses mortgage modifications in a

separate provision, but even if that provisionwere applicablehere, the result would be the same.

Courts have interpreted TILA not to impose new disclosure requirements for mortgage

modifications as long as the modification supplements or modifies the terms of the original loan,

as opposed tobeinga complete refinancing with all new terms. SeeDrake v. Ocwen Fin. Corp.,

No. 09-C-6114, 2010 WL 1910337, at *7–9(N.D. Ill. May 6, 2010)(where modification

agreement does not completely replace prior mortgage, consumer is not entitled to new TILA

disclosures for that transaction); In re Sheppard, 299 B.R. 753, 761–64(Bankr. E.D. Pa. 2003)

(same, citing cases); In re Hart, 246 B.R. 709, 738 (Bankr. D. Mass. 2000) (mortgage

modification was not a refinancing and thus did not trigger renewed TILA disclosure

obligations).Here, the Modification Agreement clearly supplements the terms of the existing

home equity line of credit, rather than replacing the original agreement. [ECF No. 21-5 at 2] (“all

other terms and conditions of the original Note . . . shall remain in full force and effect”). Thus,

because TILA allows the modification of the terms of a home equity line of credit without

mandating additional disclosures, and because a creditor is not required to make additional

disclosures where a mortgage is modified, Defendants were not obligated to make additional

disclosures at the time that the home equity line of credit was modified.Accordingly, Plaintiffs

have failed to state a claim for a violation of TILA.7

7 A separate provision of TILA requires a creditor to correct billing errors, and sets forth a

procedure for the obligor to notify the creditor of such errors. 15 U.S.C. § 1666. Plaintiffs do not

In addition, Ditech/Green Tree cannot be held liable for any disclosure violations under

TILA, because TILA imposes disclosure requirements only on the creditor, not the servicer. 15

U.S.C.§ 1641; see also Iroanyah v. Bank of Am., 753 F.3d 686, 688, n.2 (7th Cir. 2014)

(explainingthat servicer of loan“cannot be liable for damages under TILA”).

2. RESPA Violations

RESPA requires loan servicers to respond toa “Qualified Written Request”(“QWR”).12

U.S.C.§ 2605(e)(1)(A). AQWR is a written request that identifies the name and the account of

theborrower and describes the “reasons for the belief” that “the account is in error” or “provides

sufficient detail tothe servicer regarding other information sought by the borrower.”12U.S.C.§

2605(e)(1)(B). Theinformation sought through a QWR must relate to the servicingof a loan. 12

U.S.C.§ 2605(e)(1)(A). “Servicing” of a loan includes “receiving any scheduled periodic

payments from a borrower” or “the making of . . . payments of principal and interest and such

other payments with respect to the amounts received from the borrower. . . .”12 U.S.C. §

2605(i)(3).The definition of “‘[s]ervicing’ . . . does not include the transactions and

circumstances surrounding a loan’s origination—facts that would be relevant to a challenge to

the validity of an underlying debt or the terms of a loan agreement.”Medrano v. Flagstar Bank,

FSB, 704 F.3d 661, 666–67 (9th Cir. 2012).The requirement that the QWR “must request

information relating to servicing . . . ensures that the statutory duty to respond does not arise with

respect to all inquiries or complaints from borrowers to servicers.” Id. at 666.

invoke this provision, nor do they allege that they followed the required procedure for notifying

the creditor of errors. Another section of TILA requires a creditor, assignee, or servicer to send

the obligor a statement each billing cycle. 15 U.S.C. § 1638(f). Plaintiffs donot seem to claim

that they did not receive statements; at one point, they state that they were “consistently”

provided information about balances due.Rather, Plaintiffs’ allegation appears to be that the

information contained in the statements was incorrect.

Here,Plaintiffs allege that they sent QWRs to both the servicer, Ditech/Green Tree,and

the assigned lender, Citizens. [ECF Nos. 26 at 4, 26-2 at 3–5, 7–9].Since Citizens was not the

servicer, it hadno duty to respond. See,e.g.,McAndrew v. Deutsche Bank Nat’l Trust Co., 977

F.Supp. 2d 440, 445–46(M.D. Pa. 2013)(dismissing RESPA claim against owner of loan for

failure to respond to QWR because it was not the servicer); Ford v. Saxon Mortg. Servs., Inc.,

No. CV-10-RRA-989-M, 2012 WL 2862035 (N.D. Ala. June 14, 2012)(dismissing RESPA

claim against non-servicerdefendants,including owner of loan); Beacham v. Bank of Am., N.A.,

No. 3:12-CV-0801-G (BF), 2012 WL236219, at *2(N.D. Ala. May 25, 2012) (dismissing

RESPA claim against owner of loan), report and recommendation adopted, 2012 WL 2862036

(N.D. Ala. July 9, 2012).8

Plaintiffs filed a copyof aQWR that they sent to Green Tree and a QWR they sent to

Citizens, bothdated March 28, 2015. [ECF No. 26-2at 3–5, 9].9 Although Plaintiffs allege in

their complaint that they sent QWRs “on more than four occasions over a four year period”[ECF

No. 26 at 4],the dates theotherQWRs were sent arenot specified, nor have copies ofthe other

letters been provided to the Court. In the QWRs that Plaintiffs did provide, theyprimarily

requested documentation regarding the ownership of the note and any assignments that had been

made, as well as demanding that the lender and servicer prove that they had legal authority to

collect payments. [ECF No. 26-2at 3–5, 9]. Plaintiffs also requested “copies of ALL documents

related to the loan from the time of its creation, through to the present day,” includingthe

8 Plaintiffs have not alleged that Citizens is vicariously liable for any RESPA violation

committed by Ditech/Green Tree.The First Circuit has not addressed the issue of vicarious

liability under RESPA, andother courts aresplit. Bowen v. Ditech Fin. LLC, No. 2:16-CV-

00195-JAW, 2017 WL 4158601, at *15(D. Me. Sept. 19, 2017). ANew Hampshirecourt has

determinedthat vicarious liability does not exist underRESPA. Id. (citingRouleau v. U.S. Bank

N.A., No. 14-cv-568-JL, 2015 WL 1757104 (D.N.H. Apr. 17, 2015)).

9 Plaintiffs provided two copies of the letter addressed to Green Tree; these appear to be

duplicate copies of the same letter. [ECF No. 26-2 at 5, 9].

original note and“the accounting records of the loan in its entirety,” and asked for specific

information about what Plaintiffs refer to as “Corporate Advances” and “all references to

‘insurance’ and costs associated with insurance and/or taxes.” Id.The complaint alleges that

Defendants “failed to comply on all requests” made in the QWRs, but in the next sentence,

Plaintiffs state that “[s]ome replies provided copies of monthly statements, some provided a

spreadsheet accounting with amounts that made no sense and made no provisions for the

assessed debited amounts.” [ECF No. 26 at 4]. The Court interprets these statements tomean that

Defendants did respond to the QWRs, but that Plaintiffs considered the responses to be

insufficient.Plaintiffs have not stated when they received the responses, nor have they provided

sufficient detail as to the content of the responses or why they were lacking.

First, because the complaint is unclear as to whether Defendants responded to all or only

some of Plaintiffs’letters and does not adequately explain how any responses were deficient

under RESPA, Plaintiffs have not stated a claim for a RESPA violation. SeeGutierrez v. PNC

Mortgage, No.10-cv-01770,2012 WL 1033063, at *8 (S.D. Cal. Mar.26, 2012) (“Without

alleging more, thesimple assertion that Defendants failed to comply with the statute is not

enough.”); Mantz v. Wells Fargo Bank,N.A., No. 09-12010-JTL, 2011 WL 196915, at *4(D.

Mass. Jan. 19, 2011) (to state claim under RESPA, plaintiff must explain,inter alia,“how the

defendant failed torespond to the request”); Delino v. Platinum Cmty. Bank, 628 F.Supp.2d

1226, 1232 (S.D.Cal. 2009) (mere allegation that defendants “fail[ed] to respond to Plaintiff’s

QWR” insufficient to state a claim under RESPA).

Next, most of the information sought by Plaintiffs through their purported QWRs is not

documentation covered by the statute.10 The information sought through a QWR must relate to

10 The Court notes that Plaintiffs’ letters contained a broad request for “all” loan documentation,

including “the accounting records of the loan in its entirety,” which ostensibly included

the servicing of a loan. 12 U.S.C. § 2605(e)(1)(A). Information concerning the ownership of the

loan,the original promissory note, orany assignments of the mortgage does not relate tothe

servicing of the loan. See e.g.,Poindexter v. Mercedes-Benz Credit Corp., 792 F.3d 406, 413

(4th Cir. 2015)(explaining that statutory definition of “servicing” “does not include the

transactions and circumstances surrounding a loan’s origination” (quotingMedrano, 704 F.3d at

666–67); Helman v. Udren LawOffices, P.C., 85 F. Supp. 3d 1319, 1331 (S.D. Fla. 2014)

(letters that requested copies ofdocuments and proof of transfer of the loan but did not pertain to

servicing or explain why theloan was in error did not constitute a QWR);Ward v. Sec. Atl.

Mortg. Elec. Registration Sys., Inc., 858 F. Supp. 2d 561, 574 (E.D.N.C. 2012) (letter seeking,

inter alia, copies of loan documents, promissory note, and loan transactional historywas not a

QWR); Junod v. Dream HouseMortg. Co., No. CV 11-7035-ODW VBKX, 2012WL 94355, at

*3–4 (C.D. Cal. Jan. 5, 2012) (letter requesting,inter alia,copy of promissory note, loan

transactional history, MERS Milestone Reports, and informationconcerning holder of note were

“not the type of information RESPA contemplates” andtherefore, did not constitute a QWR).11

Moreover, to the extent that Plaintiffs seekto challenge the validity of the loan or to dispute its

terms, a QWR is not the appropriate mechanism to do soand correspondence in that vein does

not qualify as a QWR.SeeMedrano, 704 F.3d at 667 (holding that “letters challenging only a

documents relating to servicing, such as monthly statements. At the same time,Plaintiffs

acknowledged that theyreceived copies of statements and an accounting of the loan. [ECF No.

26 at 4].Thus, on the current record, the Court cannot conclude that Plaintiffs have stated a claim

that Ditech/Green Treeviolated RESPA by failing to disclose this type of information.

11 RESPA does require a servicer to respond “to a request from a borrower to provide the

identity, address, and other relevant contact information about the owner or assignee of the

loan.” 12 U.S.C. § 2605(k)(1)(D).Here, however, Plaintiffs do not allege that they requested

contact information forCitizens,the owner of the loan,and in fact, it appears that they were in

possession of that information and used it to send letters to Citizens. Instead, Plaintiffs requested

a copy ofthe original note, information about prior assignments of the note,and “validation” of

the debt,which is outside the scope of section 2605(k)(1)(D).

loan’s validity or its terms are not qualified written requests that give rise to a duty to respond

under” the relevant provision of RESPA); Perron ex rel. Jackson v. J.P. Morgan Chase Bank,

N.A., 845 F.3d 852, 857 (7th Cir. 2017)(explaining that a QWR cannot “be used to collect

information about, or allege an error in, the underlying mortgage loan” (citing Medrano,704

F.3d at 667–67)).12 To the extent that Plaintiffs’ letters focused on obtaining information

concerning the validity of the note, assignments, and the right to collect on the debt,the letters

did not satisfy the statutory criteria for QWRs,andDitech/Green Treetherefore had no

obligationunder RESPA to respond.

Further, even if Plaintiffs could demonstratethat the servicer failed to respond to avalid

QWR, theymust also demonstrate that they“incurred actual damages as a consequence of the

servicer’s failure.” Foregger v.Residential Credit Sols., Inc., No. 12-11914-FDS, 2013 WL

6388665, at *4(D. Mass. Dec. 5, 2013). “In order to plead ‘actual damages’sufficiently, a

plaintiff must allege specific damages and identify how the purported RESPA violations caused

those damages.” Id.Plaintiffs statethat damages would be “hard to measure,”but that is not

enough to plead damages resulting from a RESPA violation. See,e.g.,Saade v. Pennymac Loan

Servs., LLC,No. 15-12275-IT, 2016 WL4582083, at *8–9(D.Mass. Aug. 31, 2016)(plaintiff

failedto state claim under RESPA because “damages [were] not properly alleged”).When

Plaintiffs “[allege] a breach of RESPA duties alone without alleging actual damages and the

proximate cause of the breach of duty to those damages, [they] fail to state a RESPA claim.”

Hutchinson v. Del.Sav. Bank, FSB, 410 F. Supp. 2d 374, 383(D.N.J. 2006) (citing 12 U.S.C. §

12 Similarly, RESPA does not require the servicer to respond to any loan modification request

contained in a purported QWR. See, e.g., Mbakpuo v. Civil Wells Fargo Bank, N.A., No. RWT-

13-2213, 2015 WL 4485504, at *8 (D. Md. July 21, 2015) (letter disputing denial of request for

modification did not relate to servicing of loan as defined by RESPA); Van Egmond v. Wells

Fargo Home Mortg.,No. SACV 12-0112 DOC, 2012 WL 1033281, at *4 (C.D. Cal. Mar. 21,

2012) (same).

2605(f)(1)(A)).Because Plaintiffs have not provided a sufficiently detailed explanation

concerningtheir damages or how the damages they claim to have suffered were connected to the

alleged RESPA violations, theyhave failed to state a claim under RESPA.

3. FDCPA Violations

The FDCPA was enacted to protect consumers from abusive debt collection practices. 15

U.S.C. § 1692(e).“The statute creates a private cause of action against ‘any debt collector.’”

Dean v. Compass Receivables Mgmt.Corp., 148 F. Supp.2d 116, 118(D. Mass. 2001) (quoting

15 U.S.C. § 1692k). To bring a claim against aparticulardefendant,that defendant must be a

“debt collector,”and the communication at issuemust have been made “in connection with the

collection of any debt.” Stagikas v. Saxon Mortg. Servs., Inc., 795 F. Supp. 2d 129, 138(D.

Mass. 2011); see also15 U.S.C.§§1692a(6), 1692c(a)–(b).Therefore, aviable claim for

violation of the FDCPArequires that a plaintiff establish: “(1) that [the plaintiff] was the object

of collection activity arising from consumer debt, (2) [that] defendants are debt collectors as

defined by the FDCPA, and (3) [that] defendants engaged in an act or omission prohibited by the

FDCPA.”O’Connor v. Nantucket Bank, 992 F. Supp. 2d 24, 30–31 (D. Mass. 2014) (internal

quotations and citations omitted).

Here, Plaintiffs have not established that Ditech/Green Treeis a “debt collector” as

defined bythe FDCPA. Under the FDCPA, for an entity to qualify as a“debt collector,” thedebt

at issue must have beenin default at the time it was obtained by that entity. 15 U.S.C. § 1692a

(6)(F)(iii).A failureto plead that the debt was in default at the time the defendant began

servicing the loanis fatal to the claim. See,e.g.,Crepeau,2011 WL 6937508, at *5 (dismissing

claim under FDCPA where plaintiff failed to allege that loan was in default when defendant

began servicing it); Fogle v. Wilmington Fin., No. 08-cv-388-JD, 2011 WL 90229, at *2 (D.

N.H. Jan. 11, 2011) (same).13

Here, Plaintiffs have not pleadedthat the loan was in default at the time that servicing

rights weretransferred to Ditech/Green Tree, and the complaint does not provide sufficient detail

to allow the Court to infer that the loan was in default when it was transferred. A letter attached

to the complaint indicates that servicing rights were transferred to Green Treeon August 25,

2010.[ECF No. 26-2 at 49].Plaintiffs allege that oncetheloan’s initial “draw period” was over

and they were requiredto begin making payments toward principal and interest, they nonetheless

sent only partial, “interest only” payments. [ECF No. 26-1at 1].They state that this occurred in

the “fifth year” of the home equity loan, which originated in June 2005, but they do not identify

any specific or approximate dates as to when the draw period ended or when they began making

the partial payments. Id.; [ECF No. 26 at 1].Attached to the complaint, however, is a letter from

Plaintiffs to the Massachusetts Attorney General stating that “the note became due as a principal

and interest payment” in November 2010. [ECF No. 26-1 at 11]. Thus, based on the allegations

and information provided by Plaintiffs, it appears that the earliest date that the loan could have

been in default was November 2010, which was three months after servicing rights were

transferred to Ditech/GreenTree. Accordingly, Plaintiffs have not allegedthat Ditech/Green

Treewas a “debt collector” as defined bythe FDCPA.

Furthermore, even if Ditech/Green Treedid meet the definition of a debt collector,

13 “The FDCPA does not provide a definition of default.” Skerry v. Mass. Higher Educ.

Assistance Corp., 73 F. Supp. 2d 47, 51 (D. Mass. 1999). The fact that a debtor has fallen behind

on payments does not necessarily mean that the loan is in default. Alibrandi v. Fin. Outsourcing

Servs., Inc., 333 F.3d 82, 86 (2d Cir. 2003). To determine whether a debt is in default, courts

“look to any underlying contracts. . . governing the debt at issue.”Dionne v. Fed. Nat’l Mortg.

Ass’n, No. 15-cv-56-LM, 2016 WL 6892465, at *11 (D.N.H. Nov. 21, 2016) (quoting De Dios

v. Int’l Realty & Invs., 641 F.3d 1071, 1074 (9th Cir. 2011)). In this case, the home equity loan

agreement states that Plaintiffs “will be in default if . . . any payment required by the Agreement

or this Mortgage is not made when it is due.” [ECF No. 21-2 at 6].

Plaintiffs have still failed tostate a claim for a FDCPA violation.The FDCPA prohibits the use

of “any false, deceptive or misleading representation” in connection with the collection of a debt.

15 U.S.C. § 1692(e)(10). Courts evaluatewhether a collection practice violates the FDCPA

based onwhether anobjective,“least sophisticated debtor”would find the practice threatening or

misleading. SeeMartin v. Sands, 62 F. Supp. 2d 196, 199 (D. Mass.1999). This standard is

considered to be “low.” In re Hart, 246 B.R. 709, 730 (Bankr. D. Mass.2000) (quoting Avila v.

Rubin, 84 F.3d 222, 226 (7th Cir.1996)). In this case, Plaintiffs have not identifiedor described

which particular statement they believe to be “false, deceptive, or misleading,” nor have they

provided a copy of any documentsthey contend include misleading information. Instead,

Plaintiffs allege generally that Defendants “misrepresent[ed] the amount” owed, “or” that

Defendants “inflat[ed] the amount” and did “not provid[e] a proper accounting,” which thus

“held the Plaintiffs to an inflated debt.” [ECF No. 26 at 7–8]. Without more detail, this allegation

is not sufficient to indicate that Defendants violated the FDCPA, nor does it provide Defendants

with sufficient notice to defendagainst the claim. Cf.Dolan v. Schreiber & Assocs., P.C., No.

01-10177-MLW, 2002 U.S. Dist. LEXIS 6005,at *11–13 (D. Mass. Mar. 29, 2002)(plaintiffs

stated FDCPA claim where complaint identified sentencein letter alleged to be false and

misleading). Accordingly, Plaintiffs have failed to state a claim for aFDCPA violation, and the

claim must be dismissed.

Lastly, although it is unclear whether Plaintiffs intended to bring their FDCPA claim

against Citizens,any such claim wouldalso be dismissed. The FDCPA applies only to a “debt

collector,” not the creditor. See15 U.S.C.§ 1692 et seq.; Moss v. Ditech Fin., LLC, No. PWG-

15-2065,2016 WL 4077719, at *4 (D. Md. Aug. 1, 2016) (owner of loan was a “creditor” not a

“debt collector” under the FDCPA where it acquired the loan for its own account instead of on

thebehalf of others).Citizens, the current holder of the note and mortgage, retained

Ditech/Green Treeto collect the debt on its behalf. [ECF No. 21 at 14]. Because Citizens is not

itself attempting to collect a debt owed to another, Plaintiffs may not bring a FDCPA claim

against Citizens.14

III. MOTION FOR PRELIMINARY INJUNCTION

Plaintiffs included a request for a preliminary injunction in their Second Amended

Complaint. [ECF No. 26]. To evaluate whether Plaintiffs are entitled to a preliminary injunction,

the Court must analyze four factors: “(1) the likelihood of success on the merits; (2) the potential

for irreparable harm [to the movant] if the injunction is denied; (3) the balance of relevant

impositions, i.e., the hardship to the nonmovant if enjoined as contrasted with the hardship to the

movant if no injunction issues; and (4) the effect (if any) of the court’s ruling on the public

interest.” Esso Standard Oil Co. (Puerto Rico) v. Monroig-Zayas, 445 F.3d 13, 18 (1st Cir. 2006)

(internal quotation marks omitted). “The party seeking the preliminary injunction bears the

burden of establishing that these four factors weigh in its favor.” Id.“The sine qua non of this

four-part inquiry is likelihood of success on the merits: if the moving party cannot demonstrate

that he [or she] is likely to succeed in his [or her] quest, the remaining factors become matters of

idle curiosity.” Id.(internal quotation marks and citation omitted). Here, Plaintiffs have not

shownthat they arelikely to succeed on the merits of their claim, for the reasons discussed

supra. Therefore, they are not entitled toa preliminary injunction.

14 To the extent that Plaintiffs attempt to bring a claim for the breach of quiet enjoyment, that

claim fails. The covenant of quiet enjoyment concerns a duty that a landlordowes to atenant of a

rental property.See, e.g., Simon v. Solomon, 431 N.E.2d 556, 564–65 (Mass. 1982).The

concept is not applicable here.

IV. CONCLUSION

Accordingly, the motion for leave to file a Second Amended Complaint [ECF No. 22] is

GRANTED, and themotion to dismiss [ECF No. 21] is GRANTED.Plaintiffs’motion for a

preliminary injunction [ECF No. 26] is DENIED.

SO ORDERED.

March 7, 2018 /s/ Allison D. Burroughs

ALLISON D. BURROUGHS

U.S. DISTRICT JUDGE