Berneike v. CitiMortgage, Inc.

FILED
United States Court of Appeals
Tenth Circuit

PUBLISH February 25, 2013
Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court

TENTH CIRCUIT

ADRIANA BERNEIKE,

Plaintiff-Appellant,
v. No. 11-4210
CITIMORTGAGE, INC.,

Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 2:11-CV-00614-BCW)

Brian W. Steffensen of Steffensen Law Office, Salt Lake City, Utah, for
Defendant-Appellant.

Anthony C. Kaye, (Angela W. Adams and Steven D. Burt with him on the brief),
of Ballard Spahr LLP, Salt Lake City, Utah, for Plaintiff-Appellee.

Before BRISCOE, Chief Judge, GORSUCH and MATHESON, Circuit Judges.

BRISCOE, Chief Judge.

Adriana Berneike (Berneike) appeals the district court’s dismissal pursuant

to Rule 12(b)(6) of her Real Estate Settlement Procedures Act (RESPA), Utah

Consumer Sales Protection Act (UCSPA), and breach of contract claims asserted
against CitiMortgage, Inc. (Citi). Exercising jurisdiction pursuant to 28 U.S.C. §

1291, we affirm.

I

On January 13, 2010, Berneike faxed twenty-eight different letters to Citi,

her mortgage loan servicer, asserting that Citi was incorrectly billing her for

overcharges and improper fees. 1 See, e.g., Aplt. App. at 21. Twenty-two of the

January 13 letters were addressed to a Citi address in Illinois, and six letters were

addressed to a Citi address in Nevada. Id. at 15-42. On January 29, 2010,

Berneike faxed a second round of at least fifty-eight different letters. Id. at 6.

Like the January 13 letters, these letters asserted that Citi was improperly billing

Berneike for overcharges, and sought information regarding specific fees that

were set forth on her monthly bills, such as “late payment,” “other charge,” and

“[r]eturned payment fee.” Id. at 58, 60, 91. The January 29 letters were

addressed to a Citi address in Nevada. Id. at 44-102. All the letters included

“Qualified Written Request (RESPA)” in the subject line. These letters were later

attached as exhibits to Berneike’s complaint in the present action. Id. at 6, 21.

On February 3, 2010, Berneike received two response letters from Citi

regarding her billing concerns, but she attached only one of these letters to her

1
Facts are primarily taken from Berneike’s complaint. See McDonald v.
Kinder-Morgan, Inc., 287 F.3d 992, 997 (10th Cir. 2002) (accepting all
well-pleaded factual allegations in the complaint as true when reviewing a district
court’s grant of a motion to dismiss).

2
complaint. In the letter she attached to her complaint, Citi acknowledged

Berneike’s inquiry and responded that it believed her account was correctly

serviced. Citi provided the specific amounts of Berneike’s payments for 2008,

explaining that “[d]ue to an increase in your escrow disbursements since your

previous analysis, a shortage developed.” Id. at 104. Generally, Citi stated that

Berneike’s account was correct and that taxes and an escrow shortage caused

billing fluctuation. Finally, Citi provided a telephone number where Berneike

could reach an employee for future assistance.

Steadfast in her belief that Citi was overcharging her, Berneike sent another

letter in June 2010 seeking further explanation and correction. This letter was not

attached to her complaint. On July 28, 2010, Berneike faxed a third round of

forty-seven different letters to Citi again requesting information about

overcharges and improper fees. Citi did not respond to Berneike’s June or July

letters, but it did send a third letter “demanding a late fee of $73.31 for a

return[ed] check fee for Plaintiff’s previous payment,” on September 23, 2010.

Id. at 9. Altogether, Berneike faxed more than one-hundred letters to Citi.

Berneike claims that despite paying in full every bill she received, she continues

to be overcharged by Citi and is facing foreclosure and bankruptcy.

Berneike filed suit in Utah state court alleging Citi’s conduct violated

UCSPA, breached their contract and covenant of good faith and fair dealing, and

violated RESPA. Among other damages, Berneike sought “$1,000 per violation

3
of RESPA.” Id. at 12. Thereafter, Citi timely removed the case to federal court,

and the court then granted Citi’s motion to dismiss Berneike’s claims pursuant to

Rule 12(b)(6) of the Federal Rules of Civil Procedure. 2

II

This court reviews de novo a district court’s Rule 12(b)(6) dismissal for

failure to state a claim. Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th

Cir. 2012). Accordingly, all well-pleaded allegations of the complaint are

accepted as true and viewed in a light most favorable to the nonmoving party.

While factual assertions are taken as true, legal conclusions are not. To survive

dismissal under Rule 12(b)(6) for failure to state a claim, plaintiffs must “nudge[]

their claims across the line from conceivable to plausible.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the

[pleaded] factual content . . . allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009).

Berneike also appeals the district court’s denial of her request for leave to

amend based on the district court’s determination that amendment would be futile.

“[W]e generally review for abuse of discretion a district court’s denial of leave to

2
The motion to dismiss was referred to a magistrate judge pursuant to
Rule 73 and 28 U.S.C. § 636(c). Parties Consent, Berneike v. CitiMortgage, No.
2:11-cv-00614-BCW (D. Utah July 1, 2011), ECF 10. For simplicity’s sake, the
order appealed will be referred to as the district court’s order.

4
amend a complaint,” but we review de novo “the legal basis for the finding of

futility.” Cohen v. Longshore, 621 F.3d 1311, 1314 (10th Cir. 2010).

III

RESPA Claim

The Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. §§

2601-2617, is a consumer protection statute enacted to regulate real estate

settlement processes. § 2601. Under RESPA, a servicer of a “federally related

mortgage loan” may be liable for damages to a borrower if it fails to adequately

respond to a qualified written request (QWR). § 2605(e)-(f). Upon receipt of a

QWR, the loan servicer must provide a written response within twenty days of the

borrower’s inquiry acknowledging the QWR. § 2605(e)(1)(A). 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. § 2605(e)(2). If the servicer fails to

appropriately respond, the borrower may recover actual damages resulting from

the servicer’s failure and “any additional damages . . . in the case of a pattern or

practice of noncompliance with the requirements of this section, in an amount not

to exceed $1,000.” § 2605(f). The servicer’s duty to respond is triggered by

receipt of a QWR, which is defined as “written correspondence, other than notice

on a payment coupon” that states the name and account number of the borrower as

5
well as a statement of the reasons that the borrower believes the account is in

error. § 2605(e)(1)(B).

Pursuant to RESPA’s implementing regulation (“Regulation X”), 3 “a

servicer may establish a separate and exclusive office and address for the receipt

and handling of qualified written requests” by “notice either included in the

Notice of Transfer or separately delivered by first-class mail, postage prepaid.”

24 C.F.R. § 3500.21(e)(1). This authority arises under the heading “Duty of loan

servicer to respond to borrower inquires.” § 3500.21(e)(1).

The parties do not dispute that Berneike failed to send her letters to Citi’s

designated QWR address, which Citi contends mandates dismissal of Berneike’s

RESPA claims. Berneike counters with two arguments: first, the district court

erroneously considered documents outside of the pleadings to find that Citi had

3
In implementing RESPA pursuant to § 2617, the Secretary of the
Department of Housing and Urban Development (HUD) promulgated 24 C.F.R. §
3500.21. On July 21, 2011, the Bureau of Consumer Financial Protection
(Bureau) assumed HUD’s consumer-protection function under RESPA pursuant to
the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No.
111-203, 124 Stat. 1376. Thereafter, the Bureau adopted HUD’s previous
regulation, including Regulation X. See 12 C.F.R. 1024.21. The Dodd-Frank
Act, among other changes, decreased the response time in § 2605(e) from twenty
days to five and from sixty days to thirty days, but has not yet taken effect. See
Pub. L. 111-203 §§ 1400(c), 1463, 124 Stat. 1376, 2183-84 (stating that “a
section, or provision thereof, of this title shall take effect on the date on which the
final regulations implementing such section, or provision, take effect” or, if no
regulations have been issued, “on the date that is 18 months after the designated
transfer date,” July 21, 2011, which would be January 21, 2013). On January 17,
2013, the Bureau issued a final rule implementing the Dodd-Frank amendments to
RESPA and amending Regulation X, with an effective date of January 10, 2014.

6
provided notice of its designated QWR address; and, second, that Citi waived its

right to receive QWRs at the designated address by responding to her first round

of faxed letters.

1. Documents Outside of the Pleadings

Initially, Berneike claims the district court erred when it considered Citi’s

Welcome Letter, which included notice of a designated address for receipt of

QWRs. Generally, a court considers only the contents of the complaint when

ruling on a 12(b)(6) motion. Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir.

2010). Exceptions to this general rule include the following: documents

incorporated by reference in the complaint; documents referred to in and central

to the complaint, when no party disputes its authenticity; and “‘matters of which a

court may take judicial notice.’” Id. (quoting Tellabs, Inc. v. Makor Issues &

Rights, Ltd., 551 U.S. 308, 322 (2007)). This court has explained that

if a plaintiff does not incorporate by reference or attach a document
to its complaint, but the document is referred to in the complaint and
is central to the plaintiff’s claim, a defendant may submit an
indisputably authentic copy to the court to be considered on a motion
to dismiss.

GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.

1997).

Here, Berneike claims that the district court improperly considered the

Welcome Letter and a monthly mortgage loan statement sent by Citi to Berneike.

Berneike argues the district court’s consideration of the Welcome Letter was

7
improper because she did not reference the letter in or attach the letter to her

complaint. Additionally, Berneike argues the district court improperly concluded

that the Welcome Letter was central to her claim.

In its Welcome Letter, Citi stated that borrowers “must” send all QWRs to

a designated address in Maryland. Aplt. App. at 117. We conclude that the

Welcome Letter is central to Berneike’s RESPA claim because it notified

Berneike of the correct address to use when sending a QWR. Whether Berneike

sent the letters to the designated address affects whether she sent a QWR, which

would trigger Citi’s RESPA obligations. Berneike did not, however, incorporate

the Welcome Letter by reference or mention it in her complaint, and the district

court provided no citation to the complaint where it found such a reference. See

Aplt. App. at 5-12, 223. Accordingly, the district court improperly considered the

Welcome Letter. Cf. GFF Corp., 130 F.3d at 1385 (concluding that district court

properly considered letter that was “frequently referred to and quoted from” in the

amended complaint).

Nevertheless, it was not reversible error for the district court to consider

the RESPA notice and address that were contained in the Welcome Letter because

the same notice containing the correct QWR address was also set forth in the

monthly billing statements, which were properly before the court. 4 Berneike does

4
Berneike does not dispute that Citi gave sufficient notice of the required
address, and we assume for present purposes that the notice was sufficient.

8
not dispute that this notice was contained in each of her monthly billing

statements, and she explicitly referenced the monthly statements in her complaint.

It was proper for the district court to consider the referenced monthly statements

that included the RESPA notice and required QWR address.

2. Waiver

Berneike next argues that Citi waived its right to receive QWRs at the

designated address by corresponding with her. Berneike cites no supporting

authority for this argument, and does not dispute the validity or application of

RESPA’s implementing regulation, which authorizes a mortgage servicer to

designate an exclusive address for receipt of QWRs. Aplt. Br. at 22-23; see Fed.

R. App. P. 28(a)(9) (requiring appellant’s brief identify “appellant’s contentions

and the reasons for them, with citations to the authorities and parts of the record

on which the appellant relies”). Citi counters that no waiver occurred because

“waiver must be distinctly made.” Aplee. Br. at 29 (citing Meadow Valley

Contractors., Inc. v. Utah Dep’t of Transp., 266 P.3d 671 (Utah 2011)).

While a party may voluntarily relinquish or surrender a known right, the

relevant inquiry is not whether Citi waived its right to receive QWRs at its

designated address simply by responding to Berneike’s correspondence. See

Yates v. Am. Republics Corp., 163 F.2d 178, 180 (10th Cir. 1947). Rather, the

inquiry is whether the correspondence satisfies the RESPA requirements such that

Citi’s duties under § 2605 were triggered.

9
 Citi relies on two unpublished district court cases concluding that RESPA

duties are not triggered when the correspondence is not sent to the designated

address. Steele v. Green Tree Serv., LLC, No. 3:09-CV-0603-D, 2010 WL

3565415, at *3 (N.D. Tex. Sept. 7, 2010), aff’d, 453 F. App’x 473 (5th Cir.

2011), cert. denied, 133 S. Ct. 111 (2012); Bally v. Homeside Lending, Inc., No.

02 C 5799, 2005 WL 2250856 (N.D. Ill. Sept. 8, 2005). In Bally, the plaintiff,

like Berneike, faxed her letters to the servicer, which the district court concluded

failed to trigger the defendant’s RESPA duties, even if the servicer actually

received the fax. 2010 WL 2250856, at *2-3. Similarly, the district court in

Steele also concluded that letters sent to a nondesignated address failed to trigger

RESPA duties and amounted to “informal avenues to obtain other information.”

2010 WL 3565415, at *3. While these courts have held that failing to address a

QWR to the designated address bars a § 2605 claim under RESPA, regardless of

actual receipt, at least one district court has excused failure to use the designated

address when the servicer actually received the QWR. 5 Because we afford

Regulation X controlling weight, we find persuasive those cases that conclude

that a servicer’s receipt of a QWR at the designated address is required to trigger

5
Compare Vought v. Bank of Am., NA, No. 10-2052, 2010 WL 4683599,
at *5 (C.D. Ill. Sept. 24, 2010) (concluding RESPA’s use of “receive”
unambiguous and the plaintiff’s failure to use the designated address not fatal to
her claim), with Steele v. Green Tree Serv., LLC, No. 3:09-CV-0603-D, 2010 WL
3565415, at *3 (N.D. Tex. Sept. 7, 2010) (concluding that “[t]he meaning of
‘receive’ in RESPA is ambiguous, and the regulation provides an interpretation
that is neither arbitrary nor capricious”).

10
RESPA duties and liability under § 2605.

When reviewing an agency’s construction of a statute it administers, we

apply the well-known, two-step analysis articulated in Chevron, U.S.A., Inc. v.

Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). First, “[i]f the intent of

Congress is clear, that is the end of the matter; for the court, as well as the

agency, must give effect to the unambiguously expressed intent of Congress.” Id.

at 842-43. If the statute is silent or ambiguous on the issue, we proceed to step

two and ask “whether the agency’s answer is based on a permissible construction

of the statute.” Id. at 843. So long as the agency’s construction is not “arbitrary,

capricious, or manifestly contrary to the statute,” that construction will stand. Id.

at 843-44.

When determining whether Congress has expressly spoken to the issue,

under the first prong of Chevron, we “look[] to, among other things, the statutory

text, history, and purpose.” United Keetooway Band of Cherokee Indians of

Okla. v. U.S. Dep’t of Hous. & Urban Dev., 567 F.3d 1235, 1239-40 (10th Cir.

2009). Beginning, as we must, with the plain language of the statute, § 2605(e)

states that liability is triggered by receipt of the QWR. RESPA does not define

“receipt,” or discuss the use of a designated address for QWRs. See §§ 2602,

2605(e), (i). Accordingly, a servicer’s authority to designate an address for

receipt of QWRs is not directly addressed by RESPA. Nor does the structure of §

2605 or its legislative history provide any clarity on this issue.

11
 Congress enacted RESPA to effectuate “significant reforms in the real

estate settlement process . . . to insure that consumers throughout the Nation are

provided with greater and more timely information on the nature and costs of the

settlement process and are protected from unnecessarily high settlement charges

caused by certain abusive practices.” § 2601(a). Originally, “settlement process”

in RESPA included negotiation and execution of mortgage contracts, but in 1990,

RESPA was amended to include loan servicing. Section 2605 was enacted as an

amendment to RESPA in 1990, by the Cranston-Gonzalez National Affordable

Housing Act and amended one year later. Pub. L. No. 101-625, § 941, 104 Stat.

4079; S. Rep. No. 101-17125 (1990) (Conf. Rep.), 136 Con. Rec. S17125-01

(discussing the possible addition of “or” at the end of § 6(e)(2)(A)). This

legislative history does little to inform the issue. Because Congress has not

“directly addressed the precise question at issue,” we proceed to ask whether the

agency’s interpretation is a permissible construction of the statute. Chevron, 467

U.S. at 842-43.

Congress empowered HUD (and subsequently the Bureau) to “prescribe

such rules and regulations, to make such interpretations . . . as may be necessary

to achieve the purposes of this chapter.” 12 U.S.C. § 2617. And HUD exercised

that authority by promulgating 24 C.F.R. § 3500.21, pursuant to notice and

comment rulemaking, which granted servicers the authority to designate an

exclusive address for receipt of QWRs under (e)(1) of the implementing

12
regulations of RESPA. See Real Estate Settlement Procedures Act, Section 6, 59

Fed. Reg. 65442-01, 65445-46 (Dec. 19, 1994) (responding to comments

regarding the designated address by stating that “[t]his rule does not require that a

servicer establish an office to handle borrowers’ complaints. It does, however,

allow the servicer to do so. In the event the servicer establishes such an office

and complies with all the necessary notice provisions of this rule, then the

borrower must deliver its request to that office in order for the inquiry to be a

‘qualified written request.’”).

Regulation X’s grant of authority to servicers to designate an exclusive

address is a permissible construction of RESPA. Section 2605(e)(2) delineates

what correspondence qualifies as a QWR, which recognizes that servicers will not

have a statutory duty to respond to all inquiries or complaints from borrowers.

Failure to send the QWR to the designated address “for receipt and handling of

[QWRs]” does not trigger the servicer’s duties under RESPA. See Regions Hosp.

v. Shalala, 522 U.S. 448, 457 (1998) (concluding that so long as “the agency’s

reading fills a gap or defines a term in a reasonable way in light of the

Legislature’s design, we give that reading controlling weight, even if it is not the

answer the court would have reached if the question initially had arisen in a

judicial proceeding” (quotation omitted)). RESPA was intended to reform the

real estate settlement process to give consumers “greater and more timely

information,” and allowing a servicer to designate an exclusive address where

13
such requests can be handled does not undermine this goal. See Watt v. GMAC

Mortg. Corp., 457 F.3d 781, 783 (11th Cir. 2006). Therefore, we accord

Regulation X controlling weight.

Berneike admits that she did not mail her correspondence to the designated

address, arguing instead that Citi waived its statutory right to receive all future

QWRs at its specified address because it responded without asserting Berneike’s

correspondence was sent to the wrong address. This argument is not persuasive.

RESPA and its implementing regulation envisioned that only certain

communications would trigger liability for damages under § 2605, and delineated

certain requirements for communications before imposing that liability. See, e.g.,

Medrano v. Flagstar Bank, FSB, ___ F.3d ___, No. 11-55412, 2012 WL 6183549,

at *4 (9th Cir. Dec. 11, 2012). Communication failing to meet the requirements

of RESPA and its implementing regulation amounts to nothing more than general

correspondence between a borrower and servicer. Receipt at the designated

address is necessary to trigger RESPA duties, and Citi did not receive Berneike’s

letters at the designated address. Accordingly, the district court did not err in

dismissing Berneike’s RESPA claim.

Utah Consumer Sales Practices Act

Berneike next contends that the district court erred by dismissing her state

14
consumer protection claim. 6 Specifically, she disagrees with the district court’s

conclusion that the Utah Consumer Sales Practices Act (UCSPA) did not apply to

mortgage loan transactions and that she was barred from asserting a UCSPA claim

because the conduct she complained of is governed by other, more specific law.

The Utah Supreme Court has not ruled on whether the UCSPA applies to loan

servicing; therefore, “our task here is to interpret and apply the law of [Utah] as

we believe the [Utah] Supreme Court would.” High Plains Natural Gas Co. v.

Warren Petroleum Co., 875 F.2d 284, 288 (10th Cir. 1989); see United States v.

DeGasso, 369 F.3d 1139, 1145 (10th Cir. 2004) (“It is axiomatic that state courts

are the final arbiters of state law.”). Because we agree with the district court that

the Utah Supreme Court case Carlie v. Morgan, 922 P.2d 1 (Utah 1996), controls

here, we need not decide whether the UCSPA applies to mortgage loan servicing.

The UCSPA “protect[s] consumers from suppliers who commit deceptive

and unconscionable sales practices.” Utah Code Ann. § 13-11-2(2). This act is

“construed liberally,” “to make state regulation of consumer sales practices not

6
Citing no authority, Berneike asserts the district court lost subject matter
jurisdiction over the state law claims once it dismissed her RESPA claim. Aplt.
Br. at 23-24. We disagree. Pursuant to 28 U.S.C. § 1367, “district courts may
decline to exercise supplemental jurisdiction over a claim . . . if . . . the district
court has dismissed all claims over which it has original jurisdiction.” § 1367(c).
See also Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 640 (2009) (“[T]he
district court’s exercise of its discretion under § 1367(c) is not a jurisdictional
matter. Thus, the court’s determination may be reviewed for abuse of discretion,
but may not be raised at any time as a jurisdictional defect.” (alteration and
quotation omitted)).

15
inconsistent with the policies of the Federal Trade Commission Act relating to

consumer protection.” § 13-11-2(4) (footnote omitted). Violative conduct can

occur “before, during, or after the transaction,” but the supplier must have

knowingly or intentionally committed the deceptive act or practice or the

supplier’s conduct must be unconscionable. §§ 13-11-4 to -5.

While the Utah Supreme Court has not explicitly decided whether a

borrower can assert a USCPA claim when the Utah statutes governing mortgage

loan servicing and trust deeds govern the complained-of conduct, it has ruled that

a USCPA claim is barred when the complained-of conduct was governed by other,

more specific law. In Carlie, the Utah Supreme Court determined that a more

specific statute, the Utah Fit Premises Act, provided a remedy for the

complained-of conduct and held that, pursuant to its “long-standing rule of

statutory construction that ‘[s]pecific statutes control over more general

ones,’ . . . [the] plaintiffs may not resort to the UCSPA under the facts alleged.”

922 P.2d at 6 (first alteration in original) (citation omitted) (quoting State v.

Lowder, 889 P.2d 412, 414 (Utah 1994)).

Similar to the facts in Carlie, “the UCSPA does not explicitly include or

exclude” mortgage loan transactions and the alleged wrongful conduct is

governed by more specific statutes than the UCSPA. 7 Id. Cf. Woodhaven

7
See McGinnis v. GMAC Mortg. Corp., No. 2:10-cv-00301-TC, 2010 WL
3418204, at *6 (D. Utah Aug. 27, 2010) (concluding that the defendants’ conduct
(continued...)

16
Apartments v. Washington, 942 P.2d 918, 923-24 (Utah 1997) (finding Carlie’s

holding distinguishable because no “other specific laws . . . appl[ied] to

landlord/tenant transactions”), abrogated on other grounds by Commercial Real

Estate Inv., L.C. v. Comcast of Utah II, Inc., 285 P.3d 1193, 1202 (Utah 2012).

Mortgage loan servicing is highly regulated under Utah statutory law. See, e.g.,

Mortgage Lending and Servicing Act, Utah Code Ann. §§ 70D-2-304, -501

(specifying rules for mortgage servicing, such as providing the mortgagor a

statement detailing the account and imposing civil and criminal liability for

violation); id. § 70D-1-102 (defining “Mortgage” as a “mortgage or deed of trust

affecting real property located in this state.”). Likewise, deeds in trust are also

highly regulated under Utah statutory law. See, e.g., Utah Code Ann. § 57-1-1,

-19 to -36. We conclude that Berneike is barred from asserting a USCPA claim

pursuant to the principles articulated by the Utah Supreme Court in Carlie.

Wankier v. Crown Equip. Corp., 353 F.3d 862, 867 (10th Cir. 2003) (“The federal

court must defer to the most recent decisions of the state’s highest court.”).

Because Berneike is barred from asserting a UCSPA claim based on Utah

Supreme Court precedent rather than federal preemption, Berneike’s federal

preemption argument is not persuasive. Accordingly, dismissal of Berneike’s

7
(...continued)
was “governed by the more specific Utah High Cost Home Loan Act, and
Mortgage Lending and Servicing Act,” which precluded application of UCSPA);
Burnett v. Mortg. Elec. Registration Sys., No. 1:09-cv-00069DAK, 2009 WL
3582294, at *4-5 (D. Utah Oct. 27, 2009).

17
UCSPA claim, as pled, was warranted. 8

Remaining Claims

Berneike asserts the district court erred in dismissing her contract claim.

Under Utah law, to establish a breach of contract, a plaintiff must show: (1) the

existence of a contract, (2) her performance of that contract, (3) breach of the

contract by the other party, and (4) damages. Bair v. Axiom Design, L.L.C., 20

P.3d 388, 392 (Utah 2001). Berneike contends that she sufficiently pled her

fulfillment of the contract and Citi’s breach. The district court concluded that her

allegations did not satisfy the pleading requirements in light of her failure to

include how Citi breached the contract, which contractual provisions were

violated, and how Berneike upheld her end of the agreement.

We agree that, as pled, Berneike’s claims are based on legal conclusions

without sufficiently alleged supporting facts. See Aplt. App. at 10-11. She

provides scant factual basis for the performance or breach of any contract

8
Berneike argues that two Utah Court of Appeals cases have held that
mortgage transactions fall within the UCSPA’s scope, despite Carlie’s holding.
Aplt. Br. at 25. But the trial court in Estrada v. Mendoza, 275 P.3d 1024 (Utah
Ct. App. 2012), concluded that the plaintiffs waived their claims by failing to
appeal the issuance of the writ of garnishment via the state procedure, and the
Utah Court of Appeals discussed whether the plaintiffs could assert a UCSPA
claim procedurally, not the merits of their UCSPA claim. Id. at 1028 & n.6.
Likewise, the court in Martinez v. Best Buy Co., 283 P.3d 521 (Utah Ct. App.
2012), found that the plaintiffs had not sufficiently shown that the defendants’
acted with knowledge or intent to deceive. 283 P.3d at 524-25. While the
plaintiffs in Martinez were credit-card applicants and the defendants were Best
Buy employees initiating a credit-card account, Martinez does not hold that the
UCSPA applies to mortgage loan servicing. See id. at 524, 526.

18
between herself and Citi. Khalik, 671 F.3d at 1193 (“While ‘specific facts are not

necessary,’ some facts are.” (quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007)

(alteration and citation omitted))). Accordingly, the district court did not err by

dismissing Berneike’s breach of contract claim.

Leave to Amend

Finally, Berneike asserts the district court erred by dismissing her claims

with prejudice and denying her leave to amend. Rule 15(a) states that leave to

amend should be “freely give[n] . . . when justice so requires,” but a “district

court may dismiss without granting leave to amend when it would be futile to

allow the plaintiff an opportunity to amend [her] complaint.” Brereton v.

Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006). For reasons

previously discussed, Berneike’s RESPA and UCSPA claims would still be

subject to dismissal even if amended, rendering leave to amend futile. Anderson

v. Suiters, 499 F.3d 1228, 1238 (10th Cir. 2007). The district court did not abuse

its discretion by denying Berneike leave to amend her contract claim since she

failed to give “adequate notice to the district court and to the opposing party of

the basis of the proposed amendment.” Calderon v. Kan. Dep’t of Social &

Rehab. Servs., 181 F.3d 1180, 1186-87 (10th Cir. 1999); Aplt. App. at 183.

Accordingly, the district court did not err by dismissing Berneike’s claims

without leave to amend.

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 IV

For the foregoing reasons, the judgment of the district court is AFFIRMED.

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