The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
KRISTEN LAWLER :
f/k/a Kristen Alleman, :
:
Plaintiff, : Case No. 2:22-cv-2112
:
v. : Chief Judge Algenon L. Marbley
:
TRINITY FINANCIAL SERVICES, : Magistrate Judge Kimberly A. Jolson
:
Defendant. :
OPINION & ORDER
This matter is before this Court on Plaintiff Kristen Lawler’s Motion for Summary
Judgment (ECF No. 24). For the reasons explained below, Plaintiff’s Motion is GRANTED IN
PART AND DENIED IN PART: GRANTED as to Plaintiff’s April 2022 response letter
FDCPA claim and Plaintiff’s February Letter RESPA claim, and DENIED as to Plaintiff’s
October Letter RESPA claim.
I. BACKGROUND
This case revolves around Plaintiff and her ex husband’s property in Marysville, Ohio.
(ECF No. 2 at 5). Plaintiff and her then-husband financed the property in 2006 by way of an 80/20
loan, whereby they took out two mortgages through SouthStar Funding LLC. (Id.). Plaintiff was
awarded their property in their divorce and, a few years later, in 2010, she entered into a loan
modification with GMAC Mortgage, LLC to lower her interest rate. (Id. at 6). Plaintiff believed
this loan modification combined both of the property’s mortgages. (Id.). Just over a decade later,
Plaintiff sought to sell the property in order to move out of state. (Id. at 7). During the attempted
sale, Plaintiff learned that the loan modification did not, in fact, include the smaller of the two
original mortgages, but instead remained as a lien against her property. (Id.).
Plaintiff therefore set out to confirm the details of this second mortgage. She first reached
out to Defendant in September 2021, who informed her that FCI Lender Services had assumed
servicing responsibilities for her second mortgage. (Id.). But when she called FCI, it informed
her that Defendant had reassumed the second mortgage in 2016. (Id.). On her second attempt,
Defendant then claimed the second mortgage, so Plaintiff requested “a copy of the Second
Mortgage documents and as many details as possible.” (Id.). Defendant did not respond to the
bulk of Plaintiff’s request, but provided her with a payoff quote in early October 2021. (Id. at 8).
The payoff quote explained that, to pay off the original $54,200 second mortgage, Plaintiff owed
$173,002.17—including $114,453.23 in interest and $5,775.84 in late charges. (Id.). As this
amount exceeded the equity Plaintiff had in the house, she was not able to move forward with the
sale of her property. (Id.).
As a result, Plaintiff retained counsel and began to attempt to verify the second mortgage.
(Id.). Counsel sent their first letter in October 2021 (“October Letter”) identifying Plaintiff and
requesting a host of documents relating to her loan with Defendant. (Id. at 8–9). After Defendant
did not respond to the October Letter, counsel sent another in February 2022 (“February Letter”),
again identifying Plaintiff and requesting information on her second mortgage, and also
highlighting what Plaintiff believed to be multiple errors with the loan, including Defendant’s
failure to send periodic statements, to respond to the October Letter, and to maintain a proper
accounting. (Id. at 9–10). This time, Defendant acknowledged receipt of the February Letter about
a month later, and substantively responded about two months later. (Id. at 10).
Unsatisfied with Defendant’s responses thus far and believing that Defendant was unable
to enforce her second mortgage, Plaintiff filed suit. (See ECF No. 2). In her complaint, Plaintiff
sought relief by way of five separate counts for the damages she allegedly suffered, including: (1)
the “consequential and incidental damages flowing from” her inability to complete the sale of her
property; (2) emotional distress; and (3) myriad of actual damages, including but not limited to:
the costs associated with seeking information she was not provided, costs
associated with Defendant’s failure to address the errors asserted by Ms. Lawler,
loss of profit from the sale of the Property, costs associated with the unrealized sale
of the Property, as well as alleged arrearages on the Second mortgage, capitalized
costs, loss of equity, and improperly charged fees and interest.
(Id. at 11).
Approximately a year-and-a-half after filing suit, Plaintiff dismissed without prejudice four
of her claims against Defendant, including, relevant here, her claims for: (1) quiet title to the
property; and (2) declaratory relief stating that Defendant has no right to enforce the second
mortgage and that, even if it does, “no amounts are due and owing” due to Defendant’s statutory
violations. (ECF No. 22 (stipulation of dismissal); ECF No. 2 at 18–19 (declaratory judgment and
quiet title claims)).1 Shortly thereafter, Plaintiff moved for summary judgment on her two
remaining claims under the Fair Debt Collection Practices Act (“FDCPA”) and the Real Estate
Settlement Procedures Act (“RESPA”). (See ECF No. 24). Each party has filed timely responses
(ECF Nos. 29, 32), and this Court held oral argument on Plaintiff’s Motion on August 7, 2024
(ECF No. 41). As no further briefing is required at this time, this Motion is ripe for this Court’s
review.
1 In her Stipulation of Dismissal, Plaintiff dismissed her claims under the Truth in Lending Act (“TILA”) and the Ohio
Residential Mortgage Lending Act (“RMLA”). (ECF No. 22).
II. STANDARD OF REVIEW
Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and the moving party is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56. A fact is deemed material only if it “might affect the outcome of the
lawsuit under the governing substantive law.” Wiley v. United States, 20 F.3d 222, 224 (6th Cir.
1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). The necessary
inquiry for this Court is “whether ‘the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail[.]’” Patton v.
Bearden, 8 F.3d 343, 346 (6th Cir. 1993) (quoting Anderson, 477 U.S. at 251–52). In evaluating
such a motion, the evidence must be viewed in the light most favorable to the nonmoving party.
United States S.E.C. v. Sierra Brokerage Servs., Inc., 712 F.3d 321, 327 (6th Cir. 2013).
III. LAW & ANALYSIS
A. FDCPA
The FDCPA is an “extraordinarily broad statute” enacted to address what Congress deemed
the “widespread problem” of “abusive, deceptive, and unfair debt collection practices by many
debt collectors.” Frey v. Gangwish, 970 F.2d 1516, 1518, 1521 (6th Cir. 1992) (citing 15 U.S.C.
§ 1692(e)). A successful FDCPA claim requires a plaintiff to prove four elements: 1) she is a
“consumer”; 2) the debt at issue is a “consumer debt”; 3) defendant is a “debt collector”; and 4)
defendant has violated one of the prohibitions in the FDCPA. 15 U.S.C. § 1692a–f.
Only the latter two of these elements are at issue here, as this Court agrees—and Defendant
does not contest—that Plaintiff is a “consumer” seeking relief regarding a “consumer debt.” 15
U.S.C. § 1692a(3), (5). And as to the fourth, more substantive, element, Plaintiff alleges that
Defendant used “false, deceptive, or misleading representation[s] or means in connection with the
collection of any debt” in violation of 15 U.S.C. § 1692e. (ECF No. 24 at 18). This Court takes
each of the disputed elements in turn.
1. Debt Collector
The parties disagree about whether Defendant is an FDCPA-qualifying “debt collector.”
Under the FDCPA, a “debt collector” is “any person who”: (1) “uses any instrumentality of
interstate commerce or the mails in any business the principal purpose of which is the collection
of any debts”; or (2) “regularly collects or attempts to collect, directly or indirectly, debts owed or
due or asserted to be owed or due another[.]” § 1692a(6) (emphasis added). Defendant argues it
is not a debt collector per the language of this second prong, as it “has not sought to collect the
debt in question on behalf of another, nor has [it] sought to collect the debt in question under a
name other than its own,” the latter of which is a statutory exception. (ECF No. 29 at 6–7 (citing
§ 1692a(6), and Garner v. Select Portfolio Servicing, Inc., 6th Cir. No. 17-1303, 2017 U.S. App.
LEXIS 21546, at *8 (Oct. 27, 2017)).
This Court agrees, but finds this explanation to be insufficient to defend against the label
of debt collector: It ignores the first prong, which categorizes a person as a debt collector if its
“principal purpose … is the collection of any debts,” regardless of whether the debts are one’s own
or someone else’s. § 1692a(6) (emphasis added). While Plaintiff’s opening brief is vague as to
her theory for holding Defendant liable as a debt collector, she later more clearly articulates her
theory that Defendant’s “principal purpose … is the collection of debts[.]” (ECF No. 32 at 13).
So, this Court looks to the nature of Defendant’s business operations.
By way of deposition, Defendant described that it “purchase[s] nonperforming second[]
[mortgages] and then … tr[ies] to work with the … borrower or the homeowners regarding their
delinquency.” (ECF No. 23-1 at 12). In terms of proportion, Defendant went on to explain that
the purchasing of first liens is “not a big part of [its] portfolio” as the “majority of [its] portfolio
would be second mortgages” such that the “[m]ajority, but not all” of the loans it purchases are
“already in default when [it] purchase[s] them.” (Id. at 12–13). Given that, in Defendant’s own
words, Defendant’s primary business is purchasing defaulted second mortgages, Defendant’s
“principal purpose … is the collection of … debts[.]” § 1692a(6). As such, Defendant is a debt
collector under the FDCPA’s definition of one.2
2. Violation of 15 U.S.C. § 1692e
Having satisfied the identity-based elements of the FDCPA, this Court turns to the
substantive question: whether Plaintiff has sufficiently alleged that Defendant violated one of the
FDCPA’s prohibitions. Here, this involves analyzing whether Defendant “use[d] any false,
deceptive, or misleading representation or means in connection with the collection of any debt” in
its April 2022 response letter. 15 U.S.C. § 1692e; (see ECF No. 24 at 18).3 Defendant protests
such a finding, arguing that the relevant statement was not made “‘in connection with’ the
collection of any debt” because it was “merely a response to an inquiry by the Plaintiff.” (ECF
No. 29 at 9).
a. In Connection with the Collection of any Debt
As a threshold matter, this Court rejects Defendant’s implication that a response to a
debtor’s inquiry cannot also be a § 1692e qualifying communication; indeed, Defendant’s
attempted dichotomy was not supported by any authority, and understandably so. (See ECF No.
2 It also appears to be a debt collector under its own definition of one, as Defendant stated in no uncertain terms in the
relevant communication. (See ECF No. 24-21 at 3 (“THIS IS AN ATTEMPT BY A DEBT COLLECTOR TO
COLLECT A DEBT.” (emphasis added)).
3 This Court finds it worth noting that Defendant did not refer to this communication with any specificity beyond
“the allegedly contradictory statement[.]” (ECF No. 29 at 9). For clarity, this Court understands Plaintiff to be
taking issue with Defendant’s April 2022 response letter, on the record as ECF No. 24-21 (hereinafter “April 2022
response letter”).
29 at 9). The focus is not on what triggered Defendant’s communication to Plaintiff, but on
whether such communication was “in connection with the collection of any debt.” § 1692e. And
here, even viewing the facts in a light most favorable to Defendant, a reasonable jury could
conclude that Defendant’s April 2022 response letter was, in fact, a communication “in connection
with the collection of” Plaintiff’s debt.
Under the FDCPA, a “communication” is “the conveying of information regarding a debt
directly or indirectly to any person through any medium.” § 1692a(2). A communication
“regarding a debt” must simply “imply the existence of a debt,” which is a contextual inquiry.
Brown v. Van Ru Credit Corp., 804 F.3d 740, 742–43 (6th Cir. 2015). For this communication to
be “in connection with the collection of” a given debt, it “need not itself be a collection attempt; it
need only be ‘connect[ed] with one.’” Grden v. Leikin Ingber & Winters PC, 643 F.3d 169, 173
(6th Cir. 2011) (citing § 1692e). This circuit, as do others, asks whether an “animating purpose of
the communication” is to “induce payment by the debtor.” Id. (citing Gburek v. Litton Loan Serv.
LP, 614 F.3d 380, 385 (7th Cir. 2010)). In this way, a communication “that aims to make a such
a[ collection] attempt more likely to succeed[] is one that has the requisite connection.” Id.
Certainly, “the statute does not apply to every communication between a debt collector and
a debtor.” Id. (citing Gburek, 614 F.3d at 384–85). Whether a specific communication has such
a requisite connection turns on a balancing of the following factors:
(1) the nature of the relationship of the parties; (2) whether the communication
expressly demanded payment or stated a balance due; (3) whether it was sent in
response to an inquiry or request by the debtor; (4) whether the statements were
part of a strategy to make payment more likely; (5) whether the communication was
from a debt collector; (6) whether it stated that it was an attempt to collect a debt
and (7) whether it threatened consequences should the debtor fail to pay.
Goodson v. Bank of Am., N.A., 600 F. App’x. 422, 431 (6th Cir. 2015) (citations omitted); see,
e.g., James v. Ocwen Loan Servicing, LLC, No. 1:17-CV-0501, 2017 WL 6336760 (S.D. Ohio
Dec. 12, 2017), report and recommendation adopted, No. 1:17-CV-501, 2018 WL 1173035 (S.D.
Ohio Mar. 6, 2018).
As to whether the April 2022 response letter is a “communication” within the FDCPA’s
purview, the answer is yes. The face of the April 2022 response letter not only implies the
existence of a debt, but explicitly acknowledged Plaintiff’s defaulted second mortgage. Defendant
described itself as “the owner and holder of the mortgage and note on the above-referenced
property” as well as “the servicer of” the same; referenced Plaintiff’s “loan”; and provided Plaintiff
with a copy of her mortgage and payoff instructions. (ECF No. 24-21 at 2–3). The question, then,
is whether the context of this communication reveals that an “animating purpose of the
communication” is to “induce payment by the debtor.” Grden, 643 F.3d at 173. This Court finds
that it does, as most of the Goodson factors weigh in favor of such a finding.
The parties have no relationship other than debtor and debt collector; the relationship “at
all times, centered around Plaintiff[’s] delinquent account.” James, 2017 WL 6336760, at *12.
As to this specific communication, while it did not state Plaintiff’s balance, it implied a balance
owed to Defendant by way of explaining that “[t]he loan has been in default without the borrower
having made any payments to the current owner.” (ECF No. 24-21 at 2). And though Defendant
did not make an express demand for payment nor did it threaten negative consequences for failing
to do so, “such express statements are not required[.]” James, 2017 WL 6336760, at *12 (citing
Grden, 643 F.3d at 173).
The one Goodson factor that does not favor Plaintiff’s view is that the April 2022
communication “was sent in response to an inquiry or request by the debtor[.]” Goodson, 600 F.
App’x at 431. Such a statement could be considered “merely a ministerial response to a debtor
inquiry, rather than part of a strategy to make payment more likely.” Grden, 643 F.3d at 173. But
the April 2022 response letter stated, in bold capitalized letters, that it “is an attempt by a debt
collector to collect a debt.” (ECF No. 24-21 at 3 (emphasis added)). This statement can
“reasonably [be] considered part of a dialogue to facilitate satisfaction of the debt and hence can
constitute debt collection activity.” Geary v. Green Tree Servicing, LLC, No. 2:14-cv-00522, 2015
WL 1286347, at *12 (S.D. Ohio Mar. 20, 2015). And this statement was followed by the warning
that “any information obtained will be used for that purpose,” which is FDCPA-required language
for communications with its consumers. Id. at *13. While “this language alone may not be enough
to transform a document into a debt collection communication,” it is evidence of such when
considered in context, id.—the majority of which, here, cuts in favor of the April 2022 response
letter being in connection with the collection of a debt.
b. False, Deceptive, or Misleading Representations
This Court evaluates whether the April 2022 response letter included any “false, deceptive,
or misleading representations” as Plaintiff alleges. As Defendant hangs its hat on its assertion that
the communication is not “in connection with the collection of a debt,” this Court is without
opposition to Plaintiff’s argument that Defendant, in the April 2022 response letter, “falsely stated
that it provided all documents it had in its possession regarding the Second Mortgage.” (ECF No.
24 at 19; see ECF No. 29 at 9 (“The Court does not even need to consider whether the statement
itself was misleading[.]”)).
Generally, “[w]hen a litigant fails to address a claim in response to a motion for summary
judgment, that claim is deemed abandoned or forfeited.” Bennett v. Hurley Med. Ctr., 86 F.4th
314, 324 (6th Cir. 2023). This Court nonetheless evaluates “all the materials properly before it
under Rule 56(c)” to determine whether summary judgment is appropriate, as “the burden ...
always rests with the movant.” FTC v. E.M.A. Nationwide, Inc., 767 F.3d 611, 630 (6th Cir. 2014)
(quoting Smith v. Hudson, 600 F.2d 60, 65 (6th Cir. 1979)). As applied to Plaintiff’s § 1692e
claim, this involves determining, “from the perspective of the least-sophisticated consumer,”
whether a debt collector’s language is false, deceptive, or misleading.4 Grden, 643 F.3d at 172.
In so doing, courts are liberally to construe the strict liability nature of the FDCPA in favor of the
consumer. Stratton v. Portfolio Recovery Assocs., LLC, 770 F.3d 443, 448–50 (6th Cir. 2014).
In her second attempt to obtain information from Defendant regarding the validity of her
Second Mortgage, Plaintiff requested seven categories of documents: “a) A complete accounting
of the Second Mortgage; b) A copy of the security instrument; c) Copies of all images and versions
of the mortgage note; d) All servicing notes; e) All correspondence sent to Ms. Lawler regarding
any alleged default; and f) All mortgage statements.” (ECF No. 24 at 8). In response, Defendant
provided only her “Mortgage,” “Note,” “Assignment of Mortgage,” and “Payoff &
Reinstatement,” directing her to “contact the original … lender and prior servicers for past
information and documents” as it “does not have” the information she requested “other than what
is attached and discussed above.” (ECF No. 24-21 at 3). But Defendant directly contradicted its
aforementioned statement once litigation ensued; Defendant ultimately produced myriad of
documents that it, in no uncertain terms, told Plaintiff it did not have. (Id.). And during a
deposition, Defendant’s representative agreed when asked that such documents were “true and
accurate business records of [Defendant.]” (ECF No. 23-1 at 19). In so doing, Defendant put on
record that it did not, in fact, fail to provide the requested documents because it “does not have
this information[.]” (ECF No. 24-21 at 3). So, “[e]ither intentionally or mistakenly, the letter
specifically mischaracterized” what information Defendant had regarding Plaintiff’s Second
4 In other cases, the party opposing the allegations has asserted that, when a relevant communication is served on a
party’s attorney as opposed to the party themselves, an FDCPA violation should be governed by the “competent
lawyer” standard instead of the least-sophisticated debtor standard. See, e.g., Myles v. Kaman & Cusimano, LLC, No.
2:13-CV-01169, 2014 WL 4377854, at *6 (S.D. Ohio Sept. 4, 2014); Barany-Snyder v. Weiner, 539 F.3d 327, 333 n.2
(6th Cir. 2008). It does not appear that the Sixth Circuit has adopted such a position, at least not with any discoverable
regularity. So, this Court continues to apply the long-standing least-sophisticated consumer standard.
Mortgage—information Plaintiff is owed. Myles v. Kaman & Cusimano, LLC, No. 2:13-cv-01169,
2014 WL 4377854, at *6 (S.D. Ohio Sept. 4, 2014).
Certainly, the least-sophisticated consumer standard “preserv[es] a quotient of
reasonableness and presum[es] a basic level of understanding and willingness to read with care.”
Barany-Snyder v. Weiner, 539 F.3d 327, 335 (6th Cir. 2008) (cleaned up) (quoting Kistner v. L.
Offs. of Michael P. Margelefsky, LLC, 518 F.3d 433, 438–39 (6th Cir. 2008)). But any level of
reasonableness, understanding, and willingness to read with care does not explain the gap in the
information Defendant advised Plaintiff it had compared to the information it later produced. Such
a statement, then, is, if not patently false, at least deceptive or misleading. It does not require “a
bizarre or idiosyncratic interpretation” of Defendant’s April 2022 response letter to expect a
consumer to believe that Defendant was unable to provide the documents necessary to confirm the
validity of Plaintiff’s Second Mortgage. Id. (quoting Kistner, 518 F.3d at 438–39). As such,
summary judgment in Plaintiff’s favor is proper on this narrow FDCPA claim: that Defendant
violated the FDCPA through its false statement in its April 2022 response letter.
3. Damages
Plaintiff alleges that, as a result of Defendant’s FDCPA violation, she “has incurred actual
damages, including but not limited to”:
all costs associated with preparing and sending the October and February Letters,
loss of profit from the sale of the Property, costs associated with the unrealized sale
of the Property, as well as alleged arrearages on the Second mortgage, capitalized
costs, loss of equity, and improperly charged fees and interest.
(ECF No. 2 at 17). She claims she has also experienced emotional distress damages due to
Defendant’s communications, and seeks attorneys’ fees and costs. (Id. at 17–18). Defendant
appears to make no attempt to counter Plaintiff’s FDCPA damages arguments, instead relying on
its assertions that there was no such FDCPA violation. But having established that Defendant’s
April 2022 response letter constitutes an FDCPA violation, it is appropriate for this Court to
consider what, if any, damages Plaintiff should receive as a result.
A “debt collector who fails to comply with any provision of” the FDCPA “is liable to such
person in an amount equal to the sum of … any actual damage sustained by such person as a result
of such failure” plus “such additional damages as the court may allow, but not exceeding $1,000”
plus “the costs of the action, together with a reasonable attorney’s fee as determined by the court.”
15 U.S.C. § 1682k(a)(1)–(3). The FDCPA “does not require a plaintiff to satisfy the state law
elements of emotional distress in order to recover damages,” and FDCPA “[a]ctual damages
include out-of-pocket expenses incurred, as well as emotional distress damages.” Rainier v. Law
Offices of John D. Clunk Co., L.P.A., No. 2:13-cv-1173, 2017 WL 9439263, at *11 (S.D. Ohio
Sept. 22, 2017). As a “plaintiff’s testimony may be enough to establish emotional distress
damages,” this Court agrees that Plaintiff is entitled to have a jury hear her testimony in support
of her damages. Id. (citing Whaley v. Asset Mgmt. Grp., LLC, No. 2:16-cv-375, 2016 WL 6134169,
at *1 (S.D. Ohio Oct. 21, 2016)). Any other damages stemming from Defendant’s FDCPA
violation, including other actual damages as well as appropriate attorneys’ fees and costs, will also
be determined at that damages trial.
B. RESPA
Like the FDCPA, RESPA is a remedial statute that is “construed broadly to effectuate its
purposes.” Marais v. Chase Home Fin. LLC, 736 F.3d 711 (6th Cir. 2013) (citing In re Carter,
553 F.3d 979, 985–86, n. 5 (6th Cir. 2009)). Under RESPA, loan servicers owe certain duties to
borrowers, one of which is the obligation to respond to “qualified written requests” from a
borrower or their agent. 12 U.S.C. § 2605(e)(1)(A). Such a request (a “QWR”) is used to alert
the loan servicer “that the account is in error” (known as a “notice of error” or “NOE”) or to request
certain loan-related information (a “request for information” or “RFI”). § 2605(e)(1)(B). The
Sixth Circuit has consistently found “that the bar for adequately pleading RESPA violations
dealing with qualified written requests is low,” even at summary judgment. Miller v. Bank of N.Y.
Mellon, No. 21-1126, 2021 WL 5702331, at *4 (6th Cir. Dec. 1, 2021) (collecting cases). To
qualify as an action-warranting QWR, all a borrower has to do is provide, in writing: (1) their
name and account; and (2) enough detail to make the loan servicer aware of either the alleged error
or the information requested. Id. A loan servicer’s obligations differ depending on the type of
QWR submitted by a borrower, but regardless, a servicer “shall provide a written response
acknowledging receipt of the correspondence within 5 days” and shall take the appropriate
substantive action within 30 days. § 2605(e)(1)(A), (e)(2).
Relevant here are two of Plaintiff’s letters to Defendant: one from October and one from
February. As Plaintiff is a borrower and Defendant is a mortgage servicer, the question is whether
the Letters are QWRs.5 This Court finds that they are. “Each letter contains Ms. Lawler’s name
[and] account number, and provide[s] sufficient details regarding errors and requests for
information,” thereby surpassing RESPA’s low bar. (ECF No. 24 at 13–14). This Court, then,
focuses on whether Defendant was obligated to respond to a given Letter and if so, whether
Defendant’s response was sufficient.
1. October Letter
In Plaintiff’s view, Defendant improperly “wholly failed to respond to the October Letter.”
(ECF No. 24 at 14). Defendant argues that it “never received the October [L]etter” but that
5 Defendant mistakenly argues that “nowhere does Plaintiff allege that the October letter constituted a notice of error,
qualified written request or request for information that would trigger response deadlines under RESPA.” (ECF No.
29 at 10). This is wrong; Plaintiff plainly asserts that “[b]oth the October and February Letters qualify as QWRs” as
“[e]ach letter contains Ms. Lawler’s name, account number, and provide sufficient details regarding errors and
requests for information.” (ECF No. 24 at 13).
regardless, it “was also relieved of its duty to respond, as the October [L]etter was not sent to the
proper address to direct inquiries,” known as a “designated address.”6 (ECF No. 29 at 10–11).
Plaintiff, in response, explains that she sent the letter to a valid address of Defendant’s and points
out that this Court has rejected Defendant’s non-designated address argument. (ECF No. 32 at 5–
6).
Plaintiff is correct about the applicable rule. As this Court has explained, “[a] servicer’s
duties under RESPA are triggered only if: (1) the servicer receives a QWR; and (2) the written
correspondence meets the statutory definition of a QWR.” McMillen v. Resurgent Cap. Servs.,
L.P., No. 2:13-cv-00738, 2015 WL 5308236, at *5 (S.D. Ohio Sept. 11, 2015) (citing 12 U.S.C. §
2605(e)(1)(A)). As to the receipt requirement, this Court adopted the view that “while the
regulation allows a mortgage servicer to establish a separate and exclusive address, it does not
require a borrower to send QWRs to that address.” Id. at *6–7 (emphasis added). Adhering to the
statute’s broadly remedial purpose, this Court ruled “that RESPA is focused on the servicer’s
receipt of the borrower’s QWR,” not whether a borrower sent a QWR to a specifically designated
address. Id. at *7.
Applying the same here, the question is whether Defendant actually received the October
Letter sent to Defendant’s accurate Florida office address. This appears to be a genuine question
of material fact. Defendant argues, supported by a signed affidavit, that it did not receive the
October Letter prior to Plaintiff’s inclusion of the October Letter in the February Letter, which it
6 In so arguing, Defendant states that “[t]he Sixth Circuit held that ‘though the Plaintiff claimed that she sent Chase a
qualified written request on September 9, 2003, among other correspondence, Chase did not receive the
correspondence, and therefore, Chase had no obligation under RESPA to respond in any way.’” (ECF No. 29 at 11)
(emphasis added). But the case cited is not a binding appellate court decision, as Defendant misleadingly overstates.
Rather, it is from another judge in this Court’s district. See Webb v. Chase Manhattan Mortg. Corp., No. 2:05-CV-
0548, 2008 WL 2230696 (S.D. Ohio May 28, 2008). And “the [o]pinions of other district courts are persuasive but
not binding authority on this Court.” Reuter ex rel. H.R. v. Medtronic, Inc., 996 F. Supp. 2d 671, 678 n.5 (S.D. Ohio
2014) (emphasis added).
undisputedly received. (ECF No. 29 at 10–12; ECF No. 29 at 26 (Aff. Of Thahn Vo)). Plaintiff
argues that she “presented evidence that she sent the October Letter to a location that Trinity
admitted is a valid address” and that Defendant is only able to claim it did not receive the October
Letter because it was not sent via certified mail, unlike the February Letter. (ECF No. 32 at 5–6).
While the evidence supports that Plaintiff indeed sent the October Letter to Defendant’s
Florida office, the evidence does not establish that Defendant received the October, as is required
for summary judgment in her favor. (See ECF No. 24-9; ECF No. 24-10). This is distinct from
the issue in front of this Court in McMillen, wherein “it [wa]s undisputed that Defendant in fact
received Plaintiffs’ QWR … even though it was sent to [Defendant]’s general correspondence
address” because the McMillen defendant sent that plaintiff a “letter notifying Plaintiffs of receipt
of the letter[.]” 2015 WL 5308236, at *7. Here, Defendant’s RESPA duties are not yet similarly
triggered, as it remains to be determined whether Defendant actually received Plaintiff’s October
Letter at its Florida office. It is therefore inappropriate to award judgment as a matter of law on
Plaintiff’s RESPA claim as to the October Letter, as such a determination is a matter of fact for
a jury.
2. February Letter
As to the February Letter, Defendant argues that while its response was RESPA compliant,
the Letter was nonetheless not a QWR, let alone a proper NOE or RFI. (ECF No. 29 at 13).
Instead, to Defendant’s eye, the February Letter “was thinly disguised discovery[.]” (Id. at 14).
This argument is rooted in Defendant’s view that Plaintiff was not “challeng[ing] the servicing of
the loan related to payment and application of payments” but rather was “challeng[ing] the validity
of the loan itself as well as Trinity’s standing as the holder of the note and mortgage[.]” (Id.)
(emphasis added). Plaintiff disagrees, asserting that not only did the February Letter trigger
Defendant’s NOE and RFI response obligations, but that this Court has already rejected
Defendant’s servicing-versus-validity challenge argument. (ECF No. 24 at 14–15; ECF No. 32 at
1–4).
A servicer can validly respond to a RESPA-defined QWR in one of three ways: (1) by
making corrections to the account, § 2605(e)(2)(A); (2) following an investigation, by “clarify[ing]
why the account is already correct,” § 2605(e)(2)(B); or (3) after an investigation, by “provid[ing]
the borrower with a written explanation or clarification that includes information requested and
explains why information not provided cannot be obtained or provided by the servicer,”
§ 2605(e)(2)(C). Baker v. Nationstar Mortg. LLC, No. 2:15-cv-2917, 2018 WL 3496383, at *5
(S.D. Ohio July 20, 2018) (quoting Bucy v. Pennymac Loan Servs., LLC, No. 2:15-cv-2909, 2016
WL 5719804, at *8 (S.D. Ohio Sept. 30, 2016), vacated, No. 2:15-CV-2917, 2018 WL 6981208
(S.D. Ohio Sept. 4, 2018)).7 RESPA’s servicer-response obligations are disjunctive, “meaning a
servicer need not complete all three options to satisfy its obligation[.]” Id. That said, “a servicer
does not have unfettered discretion about which of the three options to choose”; “it must choose
the appropriate option under the circumstances.” Id. (first quoting Hittle v. Residential Funding
Corp., No. 2:13-CV-353, 2014 WL 3845802, at *8 (S.D. Ohio Aug. 5, 2014), then quoting Marais,
2014 WL 2515474).
Before determining whether Defendant’s response was, indeed, RESPA compliant, this
Court addresses Defendant’s argument that the February Letter was not even a QWR. As
established above, the February Letter meets the statutory definition of a QWR. This is so
regardless of whether Plaintiff requested “information relating to the servicing” of her loan with
Defendant. § 2605(e)(1)(A) (emphasis added). As this Court has held before, the QWR need not
7 This Court’s opinion was vacated only as a condition of the parties’ settlement, not as a higher court’s comment on
the analysis—analysis by which this Court still stands.
be a “correspondence[] related to servicing” to trigger the respective NOE or RFI requirements.
Baker, 2018 WL 3496383, at *5. The plain text of the relevant RESPA provision does not require
as much, nor will “[t]his Court … read the word ‘servicing’ into the statute where it is not[.]” Id.
Having established as much, this Court turns to whether the NOE or RFI requirements were
met—a topic on which Defendant provides little to counter Plaintiff’s allegations that such
requirements were not met. This Court agrees, and finds that summary judgment on Plaintiff’s
claim that Defendant’s response to her February Letter violated RESPA is appropriate.
As to the NOE in the February Letter, upon receipt of an NOE, a loan servicer must either:
(1) “[c]orrect[] the error and provid[e] the borrower with a written notification of the correction
[and] the effective date of the correction”; or (2) “[c]onduct[] a reasonable investigation and
provid[e] the borrower with a written notification,” including (a) “a statement that the servicer has
determined that no error occurred,” (b) “a statement of the reason or reasons for this
determination,” (c) “a statement of the borrower’s right to request documents relied upon by the
servicer in reaching its determination,” and (d) “information regarding how the borrower can
request such documents[.]” 12 C.F.R. § 1024.35(e)(1)(i). Defendant all but admits it did no such
thing. Instead, Defendant merely “advis[ed Plaintiff] that the loan had been assigned to
[Defendant], and that [Defendant] was the holder and owner of the note and mortgage” and
“enclosed a copy of the Mortgage, Note, Assignment of Mortgage, and Payoff and Reinstatement
Letters.” (ECF No. 29 at 13). This neither corrects the errors raised by Plaintiff nor explains why
no such error occurred. Indeed, Defendant does not even acknowledge the NOE aspect of her
February Letter, titling its response only regarding her requests for information. Such a response
is statutorily insufficient.
And as to the RFI in the February Letter, Defendant was required either to: (1) provide her
“with the requested information”; or to (2) “[c]onduct[] a reasonable search for the requested
information and provide [her] with written notification that states that the servicer has determined
that the requested information is not available to the servicer [and] provides the basis for the
servicer’s determination[.]” 12 C.F.R. § 1024.36 at (d)(1)(i)-(ii) (emphasis added). Defendant
objectively did not provide Plaintiff with the requested information, so to have complied with its
RESPA requirements, the information must have not been available to them. But such is not the
case.
Relevant here, “not available to the servicer” means that the requested information is either
“not in the servicer’s control” or that it “cannot be retrieved in the ordinary course of business
through reasonable efforts.” Supplement I to Part 2014—Official Bureau Interpretation,
https://files.consumerfinance.gov/f/201301_cfpb_final-rule_servicing-respa-interpretations.pdf
(last accessed Aug. 5, 2024). But as explained in the context of Plaintiff’s FDCPA claim, the
requested information was produced without fanfare during the course of discovery, and
Defendant’s agent agreed that such information was part of Defendant’s business records.
Certainly, Defendant could argue that producing as much took “extraordinary efforts to identify
and restore,” an argument this Court could consider on the merits. Id. But it did not, appearing to
hitch its wagon to the argument that the February Letter was not a QWR to begin with. (See ECF
No. 29 at 12–13).
Having rejected this argument, this Court sees no reason that the information Plaintiff
requested was “unavailable” to Defendant. For example, such information included something as
simple as communications between the parties, information Defendant used in its favor to argue
that Plaintiff was well aware of her loan. The official commentary to the relevant regulation
contemplated just a scenario, explaining that when “[a] borrower requests a copy of a telephonic
communication with a servicer and the servicer’s personnel have access in the ordinary course of
business to audio recording files … [,] [t]he information requested by the borrower is available to
the servicer.” Supplement I to Part 2014—Official Bureau Interpretation,
https://files.consumerfinance.gov/f/201301_cfpb_final-rule_servicing-respa-interpretations.pdf
(last accessed Aug. 5, 2024). Based on the record in front of it today, this Court sees no dispute
over the facts underlying Plaintiff’s claim that Defendant violated RESPA by way of its
insufficient response to her February Letter. So, summary judgment on this claim is appropriate.
3. Damages
The parties disagree over what constitutes “damages” recoverable under RESPA, so this
Court must provide clarity. A loan servicer who violates any aspect of RESPA “shall be liable”
to an individual borrower “for each such failure” for: “(A) any actual damages to the borrower as
a result of the failure; and (B) any additional damages, as the court may allow, in the case of a
pattern or practice of noncompliance with the requirements of this section, in an amount not to
exceed $2,000.” § 2605(f)(1). In the Sixth Circuit, “RESPA § 2605(f) does not preclude ‘actual
damages’ from including emotional distress damages where such damages are adequately proven.”
McMillen, 2015 WL 5308236, at *10. But recovery under RESPA requires more than establishing
a violation; such damages must be “casually related to a failure to properly respond to a QWR.”
Tsakanikas v. JP Morgan Chase Bank N.A., 2:11-cv-888, 2012 WL 6042836, at *2 (S.D. Ohio
Dec. 4, 2012); McMillen, 2015 WL 5308236, at *10. Additionally, a borrower can receive “the
costs of the action, together with any attorneys fees incurred in connection with such action as the
court may determine to be reasonable under the circumstances.” § 2605(f)(3).
Plaintiff pleads actual RESPA damages, including but not limited to:
all costs and expenses associated with preparing and sending the October and
February Letters, loss of profit from the sale of the Property, costs associated with
the unrealized sale of the Property, as well as alleged arrearages on the Second
mortgage, capitalized costs, loss of equity, and improperly charged fees and
interest.
(ECF No. 2 at 13). She further alleges “emotional distress” as a result of the unrealized property
sale, and claims that Defendant “has engaged in a pattern or practice of non-compliance with the
requirement of the mortgage servicer provisions of RESPA.” (Id.; ECF No. 24 at 16). In so doing,
she argues that she has at least “shown adequate evidence to allow this lawsuit to go to trial on the
issue of actual damages.” (ECF No. 24 at 16).
Defendant challenges, among other things, Plaintiff’s RESPA standing because, in its view,
Plaintiff’s damages all coalesce around her attorneys’ fees and litigation costs, which it claims
cannot serve as the basis for federal jurisdiction. (ECF No. 29 at 20). While Defendant is correct
that such costs alone may not allow her to litigate in front of this Court, Plaintiff claims a host of
damages, many, if not all, of which are “separate and distinct from litigation costs in the RESPA
litigation.” Hurst v. Caliber Home Loans, Inc., 44 F.4th 418, 423 (6th Cir. 2022) (citing Steel Co.
v. Citizens for a Better Env’t, 523 U.S. 83, 107 (1998)); (see ECF No. 2 at 13). As these damages,
including the Letters and unrealized property sale, arise “from a separate proceeding,” they “do
not raise typical standing concerns because the harm has already materialized[.]” Hurst, 44 F.4th
at 423.
Having cleared the procedural hurdle, this Court turns to the substance of her damages.
Again, Defendant’s arguments fail because its arguments ignore that Plaintiff alleges actual
damages beyond litigation costs. For example, “costs a borrower incurs due a to a servicer’s
RESPA violations are actual damages.” Id. (citing Marais, 736 F.3d at 720–21). And whether
Defendant’s RESPA violations played any role in the unrealized sale of Plaintiff's home, as well
as whether Defendant’s RESPA violations evidence a pattern or practice, are questions of fact,
inappropriate for summary judgment at this time. As Plaintiff requests, “[t]he issue of damages
will be determined at a trial to be set at a later date.” Baker, 2018 WL 3496383, at *13.
IV. CONCLUSION
For the reasons set forth above, Plaintiff's Motion for Summary Judgment (ECF No. 24)
is GRANTED IN PART AND DENIED IN PART: GRANTED as to Plaintiff’s April 2022
response letter FDCPA claim and Plaintiff's February Letter RESPA claim, and DENIED as to
Plaintiff's October Letter RESPA claim. The issue of damages for both the FDCPA and RESPA
claims will be determined at a trial to be set at a later date due to remaining questions of fact.
IT IS SO ORDERED.
Loa nM
CHIEF UNITED STATES DISTRICT JUDGE
DATED: August 21, 2024
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