# Nasser v. JP MORGAN CHASE BANK, N.A.

> United States Bankruptcy Court, E.D. New York · October 8, 2020

URL: https://www.frixlaw.com/law-library/cases/10460072

## Case

- **Court:** United States Bankruptcy Court, E.D. New York
- **Decided:** October 8, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10460072

## How later opinions describe it (automated extraction)

- finding that a party’s RESPA duties were not triggered where the alleged QWR was not addressed to the designated address

## Opinion text

UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------------------------x
In re:
Chapter 13
MARIUM NASSER,
Case No. 17-40254-nhl
Debtor.
-----------------------------------------------------------x
MARIUM NASSER,

Plaintiff,

v. Adv. Pro. No. 17-01094-nhl

JP MORGAN CHASE BANK, N.A.,

Defendant.
------------------------------------------------------------x
MEMORANDUM AND ORDER DISMISSING
COMPLAINT PURSUANT TO RULE 12(B)(6)
UPON the complaint (the “Complaint”) of Mariam Nasser (the “Plaintiff”), against JP
Morgan Chase Bank, N.A., (the “Defendant”); and upon the motion to dismiss filed by the
Defendant (the “Motion to Dismiss”); and upon the record of the periodic hearings held from May
22, 2019 through August 26, 2020 (the “Hearings”)1; and Kevin Butler (Counsel to Defendant),
Counsel to the Chapter 13 Trustee, Marium Nasser (Plaintiff/Debtor), Kamal Nasser (Plaintiff’s
Spouse), and Language Line Interpreters having appeared at the Hearings2; and after due
deliberation and upon the entire record before the Court; it is
ORDERED, that for the reasons set forth in the Memorandum below, the Motion to
Dismiss is GRANTED, and the Complaint is hereby DISMISSED in its entirety.

1   The Court refrained from ruling on the Motion to Dismiss while the Plaintiff and Defendant attempted, albeit
unsuccessfully, to resolve their differences through the negotiation of a loan modification within this Court’s Loss
Mitigation Program.
2   At the time this Complaint was filed and the Motion to Dismiss argued, the Plaintiff was represented by
counsel, Karamvir Dahiya. However, the Plaintiff has been appearing pro se since approximately November 2019.
INTRODUCTION

Plaintiff Mariam Nasser, a chapter 13 debtor, commenced an adversary proceeding (Adv.
Pro. No. 17-01094-nhl, the “Adversary Proceeding”) against JP Morgan Chase Bank, N.A.,
seeking (i) a declaratory judgment that the Defendant violated the Real Estate Settlement
Procedures Act (“RESPA”), (ii) a judgment enjoining the Defendant from committing future
violations under RESPA, and (iii) a judgment awarding the Plaintiff actual and statutory damages
pursuant to 12 U.S.C. § 2605(f). The Defendant filed a Motion to Dismiss for failure to state a
claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (“Rule 12(b)(6)”) made
applicable to this Court through Federal Rule of Bankruptcy Procedure (“Bankruptcy Rule”) 7012.
Adv. Pro. No. 17-01094, ECF No. 12.
JURISDICTION
This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334(b), and the
Eastern District of New York standing order of reference dated August 28, 1986, as amended by
Order dated December 5, 2012. This matter is a core proceeding under 28 U.S.C. § 157(b)(2)(A).
The following are the Court’s findings of fact and conclusions of law to the extent required by
Rule 52, as made applicable by Bankruptcy Rule 7052.
FACTS
I. Loan Background and Foreclosure Action
On April 3, 2006, the Plaintiff executed and delivered to the Defendant a note in the

principal sum of $560,000, secured by a mortgage on the premises known as 40-45 72nd Street
Woodside, New York 11377 (the “Property”).3 Def’s MTD, Adv. Pro. No. 17-01175, ECF No. 12,

3   The Court takes judicial notice of the state court filings, decisions, and orders, many of which were attached
to a motion to dismiss in a separate adversary proceeding. See Def’s MTD, Adv. Pro. No. 17-01175-nhl, ECF 12.

Ex. E. On June 24, 2009, the loan documents were tendered and transferred to Chase Home
Finance LLC. Id. The note and mortgage were subsequently transferred to U.S. Bank National
Association as Trustee for Bank of America Funding Corporation 2006-6 (“U.S. Bank”). Id. The
Defendant is currently the servicer of this loan.
In September 2013, U.S. Bank commenced a foreclosure action in New York State

Supreme Court against the Plaintiff and her husband (the “Foreclosure Action”). Id. After the
Plaintiff failed to respond, a default judgment was filed and recorded in favor of U.S. Bank on
March 10, 2016, which ordered the appointment of a referee to ascertain and compute amounts
due under the loan documents. Def’s MTD, No. 17-01175, ECF No. 12, Ex F. U.S. Bank had not
yet obtained a final judgment of foreclosure and sale when the automatic stay went into effect as
a consequence of the Plaintiff’s bankruptcy filing. See Hrg Tr. 5/22/19, 13:7-12.
II. Allegations
According to the Complaint, prior to the Foreclosure Action, the Plaintiff and Defendant
were in a long-standing dispute over the administration of the Plaintiff’s loan account and,

specifically, whether loan payments were being properly credited. See Compl. ¶ 8. The Plaintiff
further alleges that when her husband attempted to obtain information about the loan documents
from the Defendant, there was a lack of transparency, which forced the Plaintiff’s husband into
psychological and financial distress. Id.
Unable to come to a resolution with the Defendant, on January 23, 2017, the Plaintiff filed
the within petition. See Case No. 17-40254-nhl; Compl ¶ 9. Also on or about January 23, 2017,
the Plaintiff, through counsel, allegedly sent the Defendant a qualified written request (“QWR”)
pursuant to RESPA, which sought information about past loan payments and a loan modification
denial (the “January 23 Letter”). Compl. ¶ 10; Compl. Ex. A. The Defendant responded by letter
dated February 24, 2017, which the Plaintiff describes as a “barebones transaction sheet with
information not in compliance with RESPA or [a] Qualified Written Request.” Compl. ¶ 12; Def’s
MTD, ECF No. 12, Ex. C.
DISCUSSION
I. 12(b)(6) Standard

Under Rule 12(b)(6), made applicable by Bankruptcy Rule 7012, a plaintiff must plead
sufficient facts that, when “accepted as true, [] state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007)) (internal quotations omitted). A claim is facially plausible “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678. A complaint must allege enough facts to
“nudge[] [the] claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.
Accordingly, the plausibility standard “asks for more than a sheer possibility that a defendant has
acted unlawfully.” Iqbal, 556 U.S. at 678. “Where a complaint pleads facts that are ‘merely

consistent’ with a defendant’s liability, it ‘stops short of the line between possibility and
plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557). For purposes of
reviewing a motion to dismiss for failure to state a claim, the Court accepts factual allegations in
a complaint as true and draws all reasonable inferences in favor of the non-movant. Roth v.
Jennings, 489 F.3d 499, 501 (2d Cir. 2007).
II. RESPA Violation
RESPA is a consumer protection statute that imposes strict deadlines upon mortgage
servicers to respond to potentially detailed inquiries. See 12 U.S.C. § 2605(e).4 A mortgage
servicer’s duties under RESPA are triggered if the servicer receives a QWR, which is defined as
correspondence that identifies a borrower’s account and “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)(ii); see Roth v. CitiMortgage Inc., 756 F.3d 178, 181 (2d Cir. 2014). While not
mandatory, RESPA’s regulations allow servicers to establish a designated address for QWRs,
which must be provided to the borrower by written notice. See 12 C.F.R. § 1024.36(b); Castro v.
Bank of N.Y. Mellon for CWalt Inc., 17-CV-4375 (JS) (GRB), 2018 WL 4158344, at *4 (E.D.N.Y.
Aug. 30, 2018).
Importantly, under Second Circuit law, if a servicer properly designates a QWR address,
the borrower must send the QWR to that office, and “a letter sent to a different address is not a

QWR, even if an employee at that address . . . responds to that letter.” Roth, 756 F.3d at 182
(emphasis added). Accordingly, a “[f]ailure to send the [request] to the designated address . . .
does not trigger the servicer’s duties under RESPA.” Id. (alternations in original); see Mack v.
ResCap Borrower Claims Trust, 678 Fed.Appx. 10, 14–15 (2d Cir. 2017) (internal citations
omitted).

4 The Dodd–Frank Wall Street Reform and Consumer Protection Act (“Dodd–Frank”) transferred rulemaking
authority from the Secretary of the Department of Housing and Urban Development to the Consumer Financial
Protection Bureau (“CFPB”). Pub. L. No. 111–203, § 1098, 124 Stat. 1376, 2104 (2010). As such, in 2014, the
Secretary rescinded the version of Regulation X in issue. Removal of Regulations Transferred to the Consumer
Financial Protection Bureau, 79 Fed. Reg. 34,224, 34,224–25 (June 16, 2014). The CFPB then promulgated a new
version of Regulation X, which, like its predecessor, allows a servicer to designate a mailing address for QWRs. 12
C.F.R. §§ 1024.35(c), 1024.36(b); see Bivens v. Bank of Am., N.A., 868 F.3d 915, 919 n.3 (11th Cir. 2017).
The Plaintiff alleges that the Defendant violated 12 U.S.C. §§ 2605(e)(1)(A) and (e)(2) by
failing to timely provide (i) a response acknowledging receipt of the Plaintiff’s QWR, and (ii) the
information and documents requested. Compl. ¶¶ 13–14. The Defendant asserts that its RESPA
duties were never triggered because the Plaintiff failed to send the alleged QWR to the designated
address. Def’s MTD, ECF No. 12, at 7–9.

This Court agrees with the Defendant and finds that the Plaintiff has failed to plausibly
allege that the January 23 Letter was sent to the QWR designated address. In re Residential
Capital, LLC, 533 B.R. 874, 879 (Bankr. S.D.N.Y. 2015) (finding that a party’s RESPA duties
were not triggered where the alleged QWR was not addressed to the designated address). The
Defendant has provided sufficient documentation that it properly designated a QWR address at
“Chase P.O. Box 183166, Columbus Ohio 43218-3166,” and that this address was provided to the
Plaintiff through written notice. Specifically, the Plaintiff received letters from the Defendant
dated August 17, 2016, and December 20, 2016, which clearly state that QWRs must be sent to
“Chase P.O. Box 183166, Columbus, OH 43218-3166.”5 Def’s MTD, ECF No. 12, Ex. B.

However, the mailing address on the Plaintiff’s alleged QWR is identified as “Chase, P.O.
Box 183166, Glendale, CO 80246.” Compl., Ex. A. Further, nowhere in the Complaint does the
Plaintiff assert that the alleged QWR was sent to the designated address. Instead, the Plaintiff
contends that the Defendant’s lettered response to the alleged QWR waives the Defendant’s
argument that its duties under RESPA were not triggered. Pl’s Opp., ECF 17, at p. 2. However,
the Plaintiff’s argument directly contradicts the Second Circuit’s conclusion in Roth, which

5 The Court finds that it may consider the documents attached to the Motion to Dismiss without requiring a
summary judgment motion. The documents attached are integral to the causes of action in the Complaint and “when
a plaintiff chooses not to attach to the complaint or incorporate by reference a prospectus upon which it solely relies
and which is integral to the complaint, the defendant may produce the prospectus when attacking the complaint for its
failure to state a claim, because plaintiff should not so easily be allowed to escape the consequences of its own failure.”
Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991).
specifically held that “a letter sent to a different address is not a QWR, even if an employee at that
address . . . responds to that letter.” Roth, 756 F.3d at 182 (emphasis added).
The Plaintiff also raises an argument that her husband called the Defendant to obtain the
QWR designated address and indicated that he was provided an incorrect address. Pl’s Opp., ECF
17, at p. 2. The Court finds this argument unavailing, as a QWR designated address must be

provided to a borrower by written notice. Accordingly, these oral communications do not weigh
on the question of whether the Plaintiff received written notice of the information, which is the
relevant inquiry under the statute. See Castro, 2018 WL 4158344, at *4. As described above, the
Plaintiff received proper written notice of the QWR designated address. See Roth, 756 F.3d at 182–
83 (finding notice of the QWR designated address sufficient where borrower received
correspondence from servicer that stated the QWR designated address).
Accordingly, the Defendant’s RESPA duties were not triggered and, as such, the Plaintiff
has failed to state a claim for relief.
III. Damages

Even if the Plaintiff properly mailed a QWR to the Defendant’s designated address, the
Complaint would still be dismissed because the Plaintiff has not sufficiently alleged actual and
statutory damages.
In order to find a party liable under § 2605(e), a plaintiff must demonstrate actual damages
that “were proximately caused by the defendant’s violation of RESPA.” Bonadio v. PHH Mortg.
Corp., No. 12-CV-3421, 2014 WL 522784, at *6 (S.D.N.Y. Jan. 31, 2014) (internal quotations
omitted); Corazzini v. Litton Loan Servicing LLP, No. 09–CV–199 (MAD)(ATB), 2010 WL
6787231, at *12 (N.D.N.Y. June 15, 2010) (“[T]he courts have consistently dismissed complaints
under RESPA if they do not allege actual damages or state merely that in a conclusory fashion the
defendant caused damages to the plaintiff.”). Thus, when the complaint involves a failure to
respond to a QWR, it “must offer factual allegation[s] linking [the] alleged harms to [the
defendant’s] failure to timely respond to [the] QWR[].” Bonadio, 2014 WL 522784, at *6 (internal
quotations omitted) (certain alternations in original). Moreover, if a plaintiff is seeking statutory
damages, he or she must provide evidence of “a pattern or practice of noncompliance with the

requirements of § 2605”. Gorbaty v. Wells Fargo Bank, N.A., No. 10-CV-3291, 2014 WL
4742509, at *8 (E.D.N.Y. Sept. 23, 2014).
The Plaintiff contends that as a result of the Defendant’s lack of transparency and improper
application of loan payments, the Plaintiff’s husband experienced financial and psychological
distress. Compl. ¶ 8. The Plaintiff also alleges that the Defendant engaged in a “pattern or practice
of non-compliance with the requirements of the mortgage servicer provisions of RESPA.” Id. ¶
16. The Defendant argues that the Plaintiff’s allegations of damages are conclusory and
unsupported. Def.’s MTD, ECF No. 12, at 10.
The Court agrees with the Defendant. The Plaintiff has not provided any facts that she was

damaged by the Defendant’s alleged RESPA violations. See Bonadio, 2014 WL 522784, at *6
(dismissing RESPA claim where plaintiff did not allege that the “time spent and inconvenience”
and “emotional distress and mental anguish” were specifically caused by the defendant’s RESPA
violation); Jackson v. Caliber Home Loans, 18-cv-4282 (NG)(CLP), 2019 WL 3426240, a *8
(E.D.N.Y. July 30, 2019). The only allegations made are conclusory statements that the Plaintiff’s
husband, who is not a party to this Complaint, suffered “financially and psychologically.” Thus,
there is no evidence that the Plaintiff suffered damages that were proximately caused by the
Defendant’s alleged RESPA violation. See Bonadio, 2014 WL 522784, at *6.
Statutory damages are wholly inappropriate because the Plaintiff has presented no evidence
of a pattern or practice of non-compliance by the Defendant. The Plaintiff has asserted one RESPA
violation with respect to one alleged QWR, which does not support a conclusion that the Defendant
engaged in a “pattern or practice” of non-compliance. See Roth v. CitiMortgage, No. 12-CV-—2446
(SJF\(WDW), 2013 WL 5205775, at *8 (E.D.N.Y. Sept. 11, 2013) (two alleged violations of
RESPA were insufficient to establish “a pattern or practice” under § 2605(f)(1)(B)); Jackson, 2019
WL 3426240, at *9 (same).
The Court need not analyze whether the Defendant’s response to the Plaintiffs January 23
Letter satisfied the requirements under RESPA because the Defendant’s RESPA duties were not
triggered and, even if they were triggered, the Plaintiff has not plausibly alleged actual or statutory
damages.
CONCLUSION
For the reasons set forth above, the Defendant’s Motion to Dismiss is GRANTED, and
the Plaintiff’s Complaint is DISMISSED in its entirety.

soe,
A 2

Dated: October 8, 2020 Q ae ncy Hershey Lord
Brooklyn, New York United States Bankruptcy Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10460072. Public record. Not legal advice.