FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 1, 2015
Elisabeth A. Shumaker
Clerk of Court
BRENDA A. OGDEN,
Plaintiff - Appellant,
v. No. 14-1355
(D.C. No. 1:13-CV-01620-MSK-MJW)
PNC BANK, a National Association, (D. Colo.)
Defendant - Appellee.
ORDER AND JUDGMENT*
Before TYMKOVICH, O’BRIEN, and GORSUCH, Circuit Judges.
Brenda A. Ogden appeals the dismissal of her one-count amended complaint
brought under the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C.
§§ 2601-2617. The district court dismissed the complaint under Fed. R. Civ. P.
12(b)(6), ruling that Ms. Ogden failed to plead actual damages caused by the alleged
RESPA violation. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the
district court’s judgment.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I
In December 2012, Ms. Ogden sent a letter to her mortgage servicer, PNC
Bank (PNC), requesting information regarding why her payment amount had changed
and how her payment was being allocated to principal, interest, and escrow. She also
requested a reinstatement quote, a payoff quote, and a complete loan history report.
PNC never responded to the letter.
Ms. Ogden subsequently initiated this suit, claiming that PNC’s failure to
respond violated § 2605(e) of RESPA. She alleged that PNC’s failure to furnish the
requested information was the proximate cause of her “actual damages, including
non-economic damages of emotional distress because [she] was confused by PNC’s
attempts to lower her payments, she wasn’t clear what her monthly payment was
supposed to be because PNC does not send her monthly mortgage statements, [and
she] had knowledge that PNC had made accounting mistakes . . . .” Aplt. App. at 6.
PNC moved to dismiss under Rule 12(b)(6), and the district court granted the
motion, ruling that Ms. Ogden failed to allege a causal link between the alleged
violation and her claimed damages.1 The court explained that even if actual damages
could be predicated on emotional suffering, Ms. Ogden did not allege her emotional
distress resulted from PNC’s failure to respond; rather, she alleged that her distress
1
A magistrate judge recommended dismissal on different grounds, including on
the rationale that actual damages do not include damages for emotional distress.
Ms. Ogden continues to challenge this determination on appeal, but we, like the
district court, assume without deciding that under these circumstances, actual
damages may be based on emotional distress.
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resulted from circumstances that began before she sent the letter. Ms. Ogden
challenges this ruling on appeal.
II
“We review de novo the grant of a Rule 12(b)(6) motion to dismiss for failure
to state a claim.” Toone v. Wells Fargo Bank, N.A., 716 F.3d 516, 520 (10th Cir.
2013) (internal quotation marks omitted). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to state a claim for
relief that is plausible on its face.” Id. (internal quotation marks omitted).
Under RESPA, a mortgage servicer may be liable to a borrower if it fails to
timely and adequately respond to a qualified written request (QWR). See 12 U.S.C.
§ 2605(e)-(f). A QWR is a “written correspondence, other than notice on a payment
coupon,” that includes the name and account of the borrower and the reasons for the
borrower’s belief that the account is in error or adequate details about other
information sought. Id. § 2605(e)(1)(B). “Within sixty days of receipt of a QWR,
the loan servicer generally must investigate and make appropriate corrections to the
borrower’s account, provide a written notification of any correction or an explanation
why no correction was necessary, and provide a contact number for a representative.”
Berneike v. CitiMortgage, Inc., 708 F.3d 1141, 1145 (10th Cir. 2013).2 “If the
servicer fails to appropriately respond, the borrower may recover actual damages
2
The response times of § 2605(e) have since been reduced. See 12 U.S.C.
§ 2605(e)(2); Berneike v. CitiMortgage, Inc., 708 F.3d 1141, 1145 n.3 (10th Cir.
2013).
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resulting from the servicer’s failure and any additional damages in the case of a
pattern or practice of noncompliance with the requirements of” § 2605. Id. (emphasis
added) (ellipsis and internal quotation marks omitted); see 12 U.S.C. § 2605(f)(1)(A)
(providing for “actual damages to the borrower as a result of the failure”).
Here, Ms. Ogden did not allege that she suffered damages “resulting from the
servicer’s failure” to respond. Berneike, 708 F.3d at 1145. Rather, she alleged that
“[she] was confused by PNC’s attempts to lower her payments, she wasn’t clear what
her monthly payment was supposed to be because PNC does not send her monthly
mortgage statements, [and she] had knowledge that PNC had made accounting
mistakes . . . .” Aplt. App. at 6. Thus, her emotional distress, which is the only basis
upon which she claims actual damages, was caused by circumstances other than
PNC’s failure to respond. Indeed, as the district court observed, Ms. Ogden’s
emotional distress and the events that caused it all preceded her letter. But “to
survive a Rule 12(b)(6) motion to dismiss a claim under § 2605(e) of RESPA,
plaintiffs must plead actual damages stemming from the failure to respond.” Toone,
716 F.3d at 523. Ms. Ogden’s failure to do so was fatal to her claim. That PNC
might have alleviated her distress by responding with the requested information does
not change the fact that the distress was not caused by the failure to respond. And, to
the extent Ms. Ogden now contends she suffered additional emotional distress from
PNC’s failure to respond, she made no such allegation in her amended complaint.
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Finally, Ms. Ogden says the district court should have sua sponte ordered her
to file a second amended complaint rather than dismiss for failure to state a claim.
But she did not seek leave to file a second amended complaint, and “a court need not
grant leave to amend when a party fails to file a formal motion,” Calderon v. Kan.
Dep’t of Soc. & Rehab. Servs., 181 F.3d 1180, 1186 (10th Cir. 1999). Under these
circumstances, the district court correctly dismissed the complaint for failure to state
a claim.
III
The judgment of the district court is affirmed.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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