Board v. Union Savings Bank

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

LAVITA L. BOARD, : Case No. 1:21-cv-149

:

Plaintiff, : Judge Timothy S. Black

:

vs. :

:

UNION SAVINGS BANK, :

:

Defendant. :

ORDER GRANTING SUMMARY JUDGMENT

This civil case is before the Court on a motion for summary judgment by

Defendant Union Savings Bank (“USB”) (Doc. 15), and the parties’ responsive

memoranda (Docs. 17 and 18). Also before the Court is Defendant’s motion to stay

discovery. (Doc. 16). Given the Court’s decision in this Order, Defendant’s motion to

stay discovery is denied as moot.

I. BACKGROUND

Plaintiff Lavita Board owns a home in Cincinnati, Ohio. (Doc. 15-1 at ¶ 1). In

August 2011, she mortgaged her property to secure a loan from Defendant USB. Id. at

¶ 2. In late 2014, Plaintiff faced financial struggles and fell behind on her mortgage

payments. Id. at ¶ 3. She and USB executed a Loan Modification Agreement (“LMA”) in

May 2015. The LMA capitalized the outstanding delinquent interest, brought the

mortgage payments current, and reduced Plaintiff’s monthly loan payments. Id. at ¶ 4.

But Plaintiff’s financial issues continued. On June 18, 2015, she filed for bankruptcy. Id.

at ¶ 6. Nearly five years later, Plaintiff completed her Chapter 13 Bankruptcy Plan

payments, and a United States Bankruptcy Judge for the Southern District of Ohio

entered a Discharge Order. Id. at ¶ 7. Thus, by April 2020, Plaintiff was current on her

mortgage payments. Id. at ¶ 8. When she received her first two mortgage statements

after the Discharge Order, however, Plaintiff believed that USB had misapplied her April

and May 2020 mortgage payments. Id. at ¶ 9. To date, Plaintiff has never explained why

she believed her mortgage payments were misapplied. Instead, Plaintiff’s complaint

focuses on a series of communications her counsel had with USB.

On May 8, 2020, Plaintiff asked her lawyer at DannLaw to investigate the April

and May 2020 mortgage statements. (Doc. 17-2 at ¶ 19).

Letter #1: On May 19, 2020, Plaintiff’s counsel sent their first letter to USB.

Letter #1 purported to be a Notice of Errors (“NOE”) under Regulation X of the Real

Estate Settlement Procedures Act (“RESPA”). (Doc. 15-1 at ¶ 10). It alleged three

errors: (1) that USB had miscalculated the increase in Plaintiff’s monthly escrow

payment, and that USB failed to apply Plaintiff’s (2) April and (3) May 2020 mortgage

payments. Id. Letter #1 also purported to be a Request for Information (“RFI”) under

RESPA. Id. It sought a “life of loan transaction history” from July 2015 through Mary

19, 2020, and a payoff statement. At her deposition, Plaintiff could not recall if she ever

saw Defendant’s response to Letter #1. Id. She testified that “after hiring Dann Law,

[she] deferred to Dann.” (Doc. 13 at 47:18-23). She effectively told her lawyers, “[C]an

you just handle it because I’m tired and my eyes are crossing. I don’t know what I’m

looking at anymore.” Id.

Letter #2: On June 8, 2020, Plaintiff’s counsel sent another RFI, this time

drawing authority from both RESPA and the Truth in Lending Act (“TILA”). The RFI

sought information related to the identity and contact information of the loan servicer,

and against requested a payoff statement. (Doc. 17-2 at ¶ 12). Plaintiff could not say if

she ever received the information requested in Letter #2. Id. at ¶ 13.

Letter #3: Plaintiff’s counsel sent a third letter (“Letter #3”) also on June 8, 2020.

Letter #3 also contained an RFI. Id. at ¶ 14. Letter #3 made thirteen detailed requests for

documents related to Plaintiff’s mortgage. Id. Again, Plaintiff could not say if she ever

saw a response to Letter #3 because she “let … Dann Law handle everything at that

point.” (Doc. 13 at 51:3-6). She “admit[ted]” at her deposition that she “deferred to

Dann Law on everything and kind of tried to put it out of [her] mind.” Id. at 54:13-15.

Response #1: On June 30, 2020, USB responded to Plaintiff’s counsel for the first

time. Response #1 contained the loan history and a payoff statement satisfying the

information requested in Letter #1 and part of Letter #2. (Doc. 17-1 at ¶ 17).

Letter #4: On July 21, 2020, Plaintiff’s counsel sent a fourth letter (“Letter #4”).

Letter #4 contained an NOE under Regulation X of RESPA. The letter alleged USB had

made an error by failing to respond to Letter #2.

Response #2: On August 4, 2020, USB sent Plaintiff’s counsel a blank email—

without any body text—attaching dozens of documents, including annual disclosures,

several years of escrow analysis, default servicing records, and annual borrower

statements. Id. at 22. USB’s email did not attempt to identify as to which requests these

documents were responsive. (Doc. 13-13 at 1).

Letter #5: On August 20, 2020, Plaintiff’s counsel sent USB another letter again

containing an NOE. The alleged error was USB’s failure to response to Letter #3 and the

errors Plaintiff identified in Letter #1.

Response #3: On September 10, 2020, USB emailed Plaintiff’s counsel

acknowledging Letter #5 (which alleged errors in responding to Letter #3). Id. at ¶ 26.

USB’s representative, apparently seeking clarification, asked Plaintiff’s counsel to

“advise what documentation [wa]s still outstanding [from the requests in Letter #3] so

that [they could] expedite [their] review.” (Doc. 13-13 at 2). After Plaintiff’s counsel did

not respond, USB sent another email on September 21, 2020, again asking USB to

“advise what documentation [wa]s still outstanding.” (Doc. 17-1 at ¶ 27). Plaintiff’s

counsel replied to this email on the same day identifying the items that USB had

produced and referring USB’s representative to outstanding items identified in Letter #5.

Id. at ¶ 28. The email stated Plaintiff was “more than amenable” to “an extension to go

back through the records and produce by sometime in October.” Id.

Response #4: On October 21, 2020, USB’s representative responded to Plaintiff’s

counsel, this time with “specific responses to each item in [Letter #5],” (which repeated

the outstanding requests from Letter #3). Id. at ¶ 29. Plaintiff does not dispute that

Response #4 provided the items Plaintiff requested in Letter #3. Id. at 13, ¶ 25. Instead,

Plaintiff takes issue with USB’s failure to expressly address her counsel’s Notices of

Error. Id. at ¶26.

In sum, Plaintiff does not allege that USB never provided the information

requested in Letters #1 and #3. (See Doc. 1 at ¶ 51). And, despite receiving the

information she requested and completing full discovery in this litigation, Plaintiff does

not allege in her complaint that USB made an error in servicing her loan. See id. at ¶ 54.

Her complaint rests RESPA and TILA liability entirely on USB’s failure to respond to

Plaintiff’s NOEs in Letter #1, #4, and #5, and its delayed responses to RFIs in Letters #2

and #3. She seeks damages based on (1) the expense of sending Letters #1-#5 and (2) her

“stress, anxiety, and anger” while corresponding with USB. Id. at ¶¶ 28-29.

II. STANDARD OF REVIEW

A motion for summary judgment should be granted if the evidence submitted to

the Court demonstrates that there is no genuine issue as to any material fact, and that the

movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). See Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 247–48 (1986). The moving party has the burden of showing the absence of

genuine disputes over facts which, under the substantive law governing the issue, might

affect the outcome of the action. Celotex, 477 U.S. at 323. All facts and inferences must

be construed in a light most favorable to the party opposing the motion. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, party opposing a

motion for summary judgment “may not rest upon the mere allegations or denials of his

pleading, but . . . must set forth specific facts showing that there is a genuine issue for

trial.” Anderson, 477 U.S. at 248.

III. ANALYSIS

Article III standing for statutory violations

Defendant’s sole basis for summary judgment is its belief that Plaintiff lacks an

injury-in-fact conferring Article III standing. Article III confines judicial power to the

resolution of “Cases” and “Controversies.” Raines v. Byrd, 521 U.S. 811, 820 (1997).

To have a case or controversy under Article III, a plaintiff must have a “personal stake”

in the case. Id. In other words, a plaintiff must show that (i) that she suffered an injury

in fact that is concrete, particularized, and actual or imminent; (ii) that the injury was

likely caused by the defendant; and (iii) that the injury would likely be redressed by

judicial relief. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–561 (1992). If a

plaintiff “does not claim to have suffered an injury that the defendant caused and the

court can remedy, there is no case or controversy for the federal court to resolve.”

TransUnion v. Ramirez, 141 S. Ct. 2190, 2203 (2021).

In recent years, the Supreme Court and Sixth Circuit have made clear that a

plaintiff cannot automatically satisfy Article III’s injury-in-fact requirement “whenever a

statute grants a person a statutory right and purports to authorize that person to sue to

vindicate that right.” Ward v. National Patient Account Services Solutions, Inc., 9 F.4th

357, 361 (2021) (citing Spokeo, Inc. v. Robins, 578 U.S. 330, 136 S. Ct. 1540, 1543

(2016)). In TransUnion v. Ramirez, the Supreme Court reaffirmed this principle as

applied to a federal consumer finance statute, the Fair Credit Reporting Act. 141 S. Ct.

2190 (2021). Like TILA and RESPA, the Fair Credit Reporting Act authorizes damages

for failure to comply with the act’s procedural requirements. Id. at 2201. To satisfy

Article III, Plaintiff must show that Defendant’s procedural violation under the statute “is

a concrete injury of the sort traditionally recognized or that the procedural violations

caused an independent concrete injury.” Id.

Here, Defendant argues both that Plaintiff’s alleged injuries are not traceable to

Defendant’s conduct, and that Plaintiff’s alleged harm is not a “concrete” injury. For an

injury to be concrete, the Supreme Court instructs that “that courts should assess whether

the alleged injury to the plaintiff has a close relationship to a harm traditionally

recognized as providing a basis for a lawsuit in American courts.” Spokeo, 578 U.S. at

341. This inquiry looks to “history and tradition” to “offer a meaningful guide to the

types of cases that Article III empowers federal courts to consider.” Sprint

Communications Co. v. APCC Services, Inc., 554 U.S. 269, 274 (2008). Thus, plaintiffs

must “identif[y] a close historical or common-law analogue for their asserted injury.

TransUnion, 141 S. Ct. at 2240. Tangible harms, such as physical or monetary injuries,

are the most obvious concrete injuries under Article III, but intangible harms may also

give rise to an injury-in-fact. Id. (citing as examples reputational harms, invasions of

privacy, infringements of fundamental rights).

Congress can offer courts some guidance on which harms are sufficiently concrete

to qualify as an injury in fact. Spokeo, 578 U.S. at 341. Through legislation, Congress

may “elevate to the status of legally cognizable injuries concrete, de facto injuries that

were previously inadequate in law.” Id. at 341 (citing Lujan, 504 U.S. at 562–563, 578).

But Congress “may not simply enact an injury into existence, using its lawmaking power

to transform something that is not remotely harmful into something that is.” Hagy v.

Demers & Adams, 882 F.3d 616, 622 (6th Cir. 2018) (referring to procedural rights under

another consumer finance statute, the FDCPA). Thus, “Congress’s creation of a statutory

prohibition or obligation and a cause of action does not relieve courts of their

responsibility to independently decide whether a plaintiff has suffered a concrete harm

under Article III.” TransUnion, 141 S. Ct. at 2205.

Following TransUnion, federal courts have split on whether bare procedural

violations of consumer finance statutes, including RESPA and TILA, constitute “concrete

harm” satisfying Article III’s injury-in-fact requirement, even where Congress has

ostensibly provided a cause of action. Every circuit court that has applied TransUnion to

RESPA or TILA concludes that procedural violations of those statutes do not

automatically confer standing. Baehr v. Creig Northrop Team, P.C., 953 F.3d 244, 254

(4th Cir. 2020) (no standing for bare procedural violations of RESPA); Schwartz v. HSBC

Bank USA, N.A., 750 F. App’x 34, 36 (2d Cir. 2018) (no standing for violation of notice

requirements of TILA); Mejia v. Ocwen Loan Servicing, LLC, 703 F. App’x 860, 864

(11th Cir. 2017) (no standing to seek damages for failure to comply with RESPA

procedural requirement); Meeks v. Ocwen Loan Servicing, LLC, 681 F. App’x 791, 793

(11th Cir. 2017) (no standing to seek damages for defendant’s failure to timely

acknowledge RFI).

Though the Sixth Circuit has not yet decided how TransUnion impacts standing

under TILA or RESPA specifically, our circuit is generally inhospitable to Plaintiffs

alleging a bare procedural violation of a federal consumer finance statute.1 Thus, this

Court holds that bare procedural violations of RESPA or TILA are not, on their own,

sufficiently concrete to satisfy Article III’s injury-in-fact requirements.2 To bring a claim

for damages for procedural violations under those statutes, a plaintiff must show that

Defendant’s procedural violation concretely harmed her, meaning the alleged injury is

closely related to a harm traditionally providing a basis for a lawsuit in American courts,

or that the procedural violation “caused an independent concrete injury.” TransUnion,

141 S. Ct. at 2207; Ward, 9 F.4th at 361.

Plaintiff’s allegations are all related to USB’s failures to respond to her NOEs and

timely provide the information her RFI’s requested. These are bare procedural violations

of RESPA’ Regulation X and, in Letter #2’s case, TILA. 12 C.F.R. §§ 1024.35(d), (e);

12 U.S.C. §§ 2605(e) and 2605(k) (Counts I, II, and III; RESPA); 15 U.S.C. § 1639g and

12 C.F.R. § 1026.36(c)(3) (Count IV; TILA). Thus, to have standing, Plaintiff must

demonstrate that these procedural violations are themselves “concrete injur[ies] of the

sort traditionally recognized or that the procedural violations caused an independent

1 See Thomas v. TOMS King (Ohio), LLC, 997 F.3d 629, 640 (6th Cir. 2021) (no standing for

procedural violation of the Fair and Accurate Credit Transactions Act); Beaudry v. TeleCheck

Servs., Inc., 854 F. App’x 44, 45-46 (6th Cir. 2021) (no standing for procedural violation of Fair

Credit Reporting Act); Huff v. TeleCheck Servs., Inc., 923 F.3d 458, 463-65 (6th Cir. 2019)

(same); Ward v. National Patient Account Servs. Sols., Inc., 9 F.4th 357, 362 (6th Cir. 2021) (no

standing for Fair Debt Collection Practices Act); Garland v. Orlans, PC, 999 F.3d 432, 438 (6th

Cir. 2021) (same); Buchholz v. Meyer Njus Tanick, PA, 946 F.3d 855, 865 (6th Cir. 2020) (same

even where plaintiff alleged the procedural violation caused him anxiety); Hagy, 882 F.3d at

622-23 (6th Cir. 2018) (same); Lyshe v. Levy, 854 F.3d 855, 860-61 (6th Cir. 2017) (same).

2 Plaintiff resists this holding by citing a handful of district court case cases that permit standing

based on bare procedural violations. These cases are not persuasive. They are invariably outside

the Sixth Circuit, and nearly all of them predate TransUnion.

concrete injury.” Ward, 9 F.4th at 361.

Plaintiff makes no argument that the procedural violations were themselves

concrete injuries of the sort traditional recognized. See Doc. 17 at 8-12. Instead, Plaintiff

argues only that USB’s failures caused “independent concrete injury.” She argues that

the USB’s failure to respond to the NOEs perpetuated her payment of erroneous escrow

fees. She argues that she incurred attorney fees and costs to send USB the RFIs and

NOEs. (Doc. 17-1 at 14, ¶ 28). She also cites her “stress, anxiety, and anger” at having

to pursue the NOEs and RFIs. Id. at 14, ¶ 29. Construing all facts and inferences in a

light most favorable to Plaintiff, these results, though certainly vexatious, are not enough

to establish that USB’s procedural violations caused an independent concrete injury.

a. Plaintiff has not supported her claim for excess escrow costs

Plaintiff asserts that USB erroneously increased her monthly escrow fees and that

USB’s failure to respond to her NOEs caused her to continue paying excess escrow fees.

She does not, however, support this assertion with any facts. Plaintiff (through her

counsel) received the account history she requested. (Doc. 17-1 at ¶ 16). She also

received several escrow analyses covering every year from 2016 through 2020 (Doc. 13-

13 at 1). And, in the course of this litigation, she has had the full suite of federal

discovery tools at her disposal. None of these apparently supplied Plaintiff any facts

suggesting that the escrow increase was incorrect. To defeat summary judgment,

Plaintiff “must do more than simply show that there is some metaphysical doubt as to the

material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586

(1986). To rely on miscalculated escrow payments as a basis for concrete injury, Plaintiff

had to “come forward with specific facts showing that” the validity of her escrow fees are

“a genuine issue for trial.” Id. at 587. She has not met that burden.

b. The cost of pursuing compliance is not a concrete injury

Next, Plaintiff argues that the costs and attorneys’ fees she incurred to have her

counsel send the Letters containing RFIs and NOEs count as a concrete injury flowing

from USB’s procedural violations of TILA and RESPA.3 Precedent in the Sixth Circuit

forecloses this argument. In Ward v. National Patient Account Services, Defendant

NPAS made collection calls in violation of the procedural requirements of the FDCPA. 9

F.4th 357 (6th Cir. 2021). Like RESPA and TILA, the FDCPA provides a private cause

of action for borrowers to vindicate procedural rights under the statute. See id. Ward

hired counsel to send NPAS a cease-and-desist letter and later to pursue litigation against

NPAS. Id. at 363. Ward argued that his concrete harm was “the economic expense of

retaining counsel.” Id. The Sixth Circuit rejected this argument. “If the voluntarily

incurred expenses of bringing a suit could be used by themselves to show concrete injury,

this element of Article III standing would always be satisfied by any plaintiff who incurs

legal expenses.” Id. Likewise, Plaintiff here cannot claim that her costs to hire counsel to

send seven letters to USB counts as a concrete injury-in-fact.

Plaintiff attempts to distinguish Ward by pointing out that Plaintiff “did not hire

her attorneys to affirmatively pursue the instant matter in federal court, but instead to

request information and most importantly correct the errors with USB’s application of her

3 As to “she incurred, it is more accurately stated as “her counsel incurred.” Plaintiff testified at

her deposition that she has not paid her attorneys anything yet. (Doc. 13 at 79:1-8).

monthly payments.” (Doc. 17 at 11) (emphasis supplied). But that distinction did not

exist in Ward. Like Plaintiff, Ward initially hired his attorney to send his creditor a letter

correcting what he perceived as a mistake. Id. at 360, 363. The Sixth Circuit’s language

was not limited to attorneys’ fees generated in litigation. The appellate court broadly

observed that “applying Ward’s logic to any plaintiff who hires counsel to affirmatively

pursue a claim would nullify the limits created under Article III.” Id. at 363. Following

the Sixth Circuit’s instruction, this Court cannot find that Plaintiff has established

standing merely by paying her lawyers to send letters on her behalf.4

c. Stress, anxiety, and anger is not a concrete injury

Plaintiff’s third argument is that USB’s failure to respond to her letters containing

NOEs caused her stress, anxiety, and anger which constitute a concrete injury-in-fact.5 In

other words, Plaintiff seeks to establish that USB’s procedural violation caused her an

emotional injury that confers standing.

For an emotional injury to confer standing it must bear a “close relationship to a

harm traditionally recognized as providing a basis for a lawsuit in American courts.”

Spokeo, 578 U.S. at 341. Courts look to “history and tradition” to “offer a meaningful

4 Separately, Plaintiff argues that her costs to send USB the Letters provide a basis for standing

under Marais v. Chase Home Fin., LLC, 24 F. Supp. 3d 712, 728 (S.D. Ohio 2014). But that

case did not address standing. The plaintiff in Marais had already established standing (under

pre-TransUnion rules), and could therefore “metamorphose[]” the costs of sending letters into

her damages calculation. Plaintiff cannot employ the Marais case to escape the principle that

“interest in attorney’s fees is, of course, insufficient to create an Article III case or controversy

where none exists on the merits of the underlying claim.” Lewis v. Cont’l Bank Corp., 494 U.S.

472, 480 (1990).

5 Plaintiff abandoned her arguments the USB’s failure to respond to letter containing RFIs

caused her emotional distress. (Doc. 17 at 12 n.1).

guide to the types of cases that Article III empowers federal courts to consider.” Sprint

Communications Co. v. APCC Services, Inc., 554 U.S. 269, 274 (2008). In the Sixth

Circuit, “[s]ome forms of anxiety or emotional harm are cognizable under the common

law, but others are not. And this distinction appears to turn on both the defendant’s

conduct giving rise to the anxiety and the anxiety’s severity.” Garland v. Orlans, PC,

999 F.3d 432, 439 (6th Cir. 2021).

In Buchholz v. Meyer Njus Tanick, PA, the plaintiff alleged a procedural violation

of the Fair Debt Collection Practices Act (“FDCPA”) caused him anxiety which gave him

standing to sue. 946 F.3d 855 (6th Cir. 2020). The Sixth Circuit expressed skepticism

that a bare allegation of anxiety could form an injury-in-fact. The Court explained that

“closest common-law analogues about ‘psychological injuries’ emphasize the ‘extreme’

or ‘outrageous’ nature of the underlying conduct causing the harm.” Garland, 999 F.3d

at 439 citing Bucholz, 946 F.3d at 864. A creditor’s failure to conform to the procedural

requirements of a federal consumer finance statute is not “extreme” or “outrageous”

enough to convert a plaintiff’s anxiety into a cognizable injury in fact. Id.

Here, Plaintiff makes no argument that her emotional distress is tied to a “harm

traditionally recognized as providing a basis for a lawsuit in American courts.” Spokeo,

578 U.S. at 341. Accordingly, the Court cannot find that Plaintiff’s anxiety,6 without

6 Plaintiff also alleges “anger” and “stress” but the Court sees no meaningful distinction between

these emotional harms. Restatement (Second) of Torts § 46 (1965) (“Emotional distress passes

under various names, such as mental suffering, mental anguish, mental or nervous shock, or the

like. It includes all highly unpleasant mental reactions, such as fright, horror, grief, shame,

humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea.”).

more, constitutes an injury-in-fact.

USB also argues that Plaintiff failed to establish another element of standing:

traceability. Because the Court is persuaded that Plaintiff cannot establish that her

emotional distress constituted an injury-in-fact, the Court need not reach traceability.7

Construing all facts and inferences in a light most favorable to Plaintiff, the Court

cannot conclude that Plaintiff has suffered a concrete injury-in-fact. She therefore lacks

standing to pursue her claims against USB. To be sure, this holding is not a hall pass for

creditors to ignore their borrowers’ notices of errors or requests for information. USB’s

lackadaisical emails are hardly a model of customer service. (Doc. 13-13). In this case,

both parties lucked out. Plaintiff was not concretely injured by USB’s failure to respond

to her NOEs. But if, for example, Plaintiff had presented any “specific facts” suggesting

that her escrow increase was genuinely erroneous and that she continued to pay too much

because of USB’s failure to investigate and correct the error, this might have been a very

different Order. Matsushita, 475 U.S. at 586.

7 Plaintiff’s response brief also claims she is entitled to statutory damages for USB’s “pattern or

practice” or failing to respond to borrowers NOEs and RFIs. Plaintiff does not explain how this

claim rebuts USB’s argument that she lacks standing. In any event, Plaintiff presents no facts

suggesting that failing to respond to borrower letters was its “standard operating procedure.”

Lewis v. PNC Bank, N.A., No. 3:17-CV-220, 2018 WL 6249989, at *8 (S.D. Ohio Nov. 29,

2018). Proving a “pattern or practice” requires “evidence that Defendant failed to investigate

and respond reasonably to qualified written requests from other borrowers” besides Plaintiff. Id.

Plaintiff offers none.

IV. CONCLUSION

Based upon the foregoing, Defendants’ motion for summary judgment (Doc. 15) is

GRANTED. The Clerk shall enter judgment accordingly, whereupon this case is

TERMINATED from the docket of this Court.

IT IS SO ORDERED.

Date: 4/25/2022 s/Timothy S. Black

Timothy S. Black

United States District Judge