Jaki Baez v. Specialized Loan Servicing, LLC

Case: 16-17292 Date Filed: 09/22/2017 Page: 1 of 13

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 16-17292
Non-Argument Calendar
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D.C. Docket No. 9:15-cv-81676-KAM

JAKI BAEZ,
individually,

Plaintiff-Appellant,

versus

SPECIALIZED LOAN SERVICING, LLC,
Foreign Limited Liability Company,

Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Southern District of Florida
________________________

(September 22, 2017)

Before HULL, WILSON, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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Plaintiff-appellant Jaki Baez claims that she suffered damages as a result of

Defendant-appellee Specialized Loan Servicing, LLC’s (“Specialized Loan”)

failure to adequately respond to her request for certain information relating to her

mortgage loan. Baez submitted her request pursuant to the provisions of

Regulation X, 12 C.F.R. part 1024, which implements the Real Estate Settlement

Procedures Act (“RESPA”), 12 U.S.C. §§ 2601, et. seq. If a servicer fails to

comply with its obligations under RESPA or its regulations, plaintiffs can recover

“any actual damages to the borrower as a result of the failure.” 12 U.S.C.

§ 2605(f)(1)(A).

The district court granted Specialized Loan summary judgment because

Baez had not shown any “actual damages” caused by the alleged failure to comply

with RESPA. On appeal, Baez contends that she suffered damages in the form of

the following: (1) postage costs for sending the request for information;

(2) attorney’s fees flowing from a review of the deficient response; and (3) the

deprivation of information that she would have received had Specialized Loan

complied with its obligations. After careful review, we agree with the district court

that Baez has failed to produce sufficient evidence of actual damages caused by her

servicer’s failure to comply with RESPA. We therefore affirm.

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I. Regulation X

“RESPA is a consumer protection statute that imposes a duty on servicers of

mortgage loans to acknowledge and respond to inquiries from borrowers.” Bivens

v. Bank of Am., N.A., ___ F.3d ___, ___, 2017 WL 3529113, *2 (11th Cir. Aug. 17,

2017). RESPA requires servicers to comply with the obligations specified in 12

U.S.C. § 2605 as well as any regulations issued to carry out the statute’s purposes.

See 12 U.S.C. § 2605(k)(1). A servicer’s failure to comply with RESPA or its

implementing regulations gives rise to a private cause of action. See Id. § 2605(f).

This case concerns two provisions in Regulation X, which implements

RESPA. These provisions were promulgated by the Consumer Financial

Protection Bureau (“CFPB”) and went into effect on January 10, 2014. See

Mortgage Servicing Rules Under the Real Estate Settlement Procedures Act, 78

Fed. Reg. 10696 (Feb. 14, 2013).

The central regulation at issue outlines a servicer’s duties in responding to a

borrower’s “written request for information,” or “RFI.” See 12 C.F.R.

§ 1024.36(a). When a borrower requests information “with respect to the

borrower’s mortgage loan account,” the servicer is required to take certain

responsive actions within certain times periods. See id. § 1024.36(a). The servicer

must provide written acknowledgement of the request within five days. Id.

§ 1024.36(c) Then, within 30 days, the servicer must either provide the

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information the borrower requested or, after a reasonable investigation, notify the

borrower in writing that it has determined that the information is not available and

explain the basis for its decision. Id. § 1024.36(d); see id. § 1024.36(d)(2)(i)(A)

(reducing the time limit to 10 days if the borrower requests the identity of the

secured creditor). The regulation also specifies, among other things, alternative

means of compliance, id. § 1024.36(e), as well as situations in which a servicer is

not required to provide the information requested, id. § 1024.36(f).

The second regulation at issue, 12 C.F.R. § 1024.41, “dictates how a

mortgage loan servicer must review a borrower’s loss mitigation application.”

Lage v. Ocwen Loan Servicing LLC, 839 F.3d 1003, 1006–07 (11th Cir. 2016)

(summarizing the requirements of this regulation). “A loss mitigation application

is simply a request by a borrower for any of a number of alternatives to

foreclosure, known as loss mitigation options, including, among others,

modification of the mortgage.” Id. at 1006.

II. Factual Background

Baez purchased her home in 2005 with a mortgage loan from First Franklin

Bank. At some point, Specialized Loan took over as her mortgage loan servicer.

Since that time, Baez claims, Specialized Loan has continued to raise her monthly

mortgage payments without providing adequate explanation.

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In January 2015, Baez stopped paying her mortgage to see if she could

qualify for a loan modification agreement that worked for her. Around that time,

she retained the law firm of Korte & Wortman, P.S. (the “Korte firm”) to both help

with any ensuing foreclosure and to achieve a loan modification. She has paid the

Korte firm a flat fee of $400 per month since that time.

Baez testified that she tried to work with Specialized Loan to get

information about why her mortgage payments were rising and whether she could

obtain a loan modification so that she could save her home. But Specialized Loan,

according to Baez, was unresponsive or unhelpful. In her view, Specialized Loan

stonewalled her efforts to obtain a modification by saying that it had not received

necessary documents that Baez had sent. And even though she received

“confirmations” about submitting all necessary documents, Baez could not

understand why she was never approved.

On September 18, 2015, Baez, through her attorney, sent a request for

information to Specialized Loan. In the request, she asked for information about

her mortgage loan, including any loss-mitigation applications she had submitted, a

payoff quote, and any notifications of servicer transfer. Specialized Loan

acknowledged the request and later submitted a packet of information in response.

Baez claims that the packet was deficient because it contained no correspondence

file of what Specialized Loan had communicated to Baez. She specifically points

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to two letters Specialized Loan sent her, dated March 18, 2015, and May 5, 2015,

respectively, which were produced during discovery in this case but which were

not included in Specialized Loan’s response.

Soon after she received Specialized Loan’s purportedly deficient response to

her request for information, Baez filed suit in state court alleging a violation of

RESPA. Specialized Loan removed the matter to federal district court and then

moved to dismiss the complaint. The district court denied the motion, and the case

proceeded through discovery. Both parties moved for summary judgment at the

close of discovery. Ultimately, the district court granted summary judgment to

Specialized Loan on the ground that Baez had failed to show that she had been

injured by Specialized Loan’s response to her RFI.1 Baez now appeals.

III. Standard of Review

We review de novo the district court’s grant of summary judgment.

Liebman v. Metropolitan Life Ins. Co., 808 F.3d 1294, 1298 (11th Cir. 2015).

Summary judgment is appropriate where, viewing the evidence and drawing all

reasonable inferences in favor of the party opposing summary judgment, “there is

1
Specialized Loan maintains on appeal, as it argued before the district court, that its
obligation to respond is limited to requests for information relating to “servicing” of the loan, see
12 U.S.C. § 2605(i)(3) (defining the term “servicing”), which in its view does not include
requests like Baez’s related to loan modification. Baez responds that the version of Regulation X
promulgated by the CFPB expanded a servicer’s response obligations to include any request for
information “with respect to the borrower’s mortgage loan,” 12 C.F.R. § 1024.36(a), which in
Baez’s view includes requests related to loan modification. The district court did not reach this
issue, and we find it unnecessary to resolve. Even assuming that Baez has established a RESPA
violation, she has not established actual damages as a result of that violation.
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no genuine issue of material fact and the moving party is entitled to judgment as a

matter of law.” Id.; Fed. R. Civ. P. 56(a).

IV. Discussion

A servicer’s failure to comply with its RESPA obligations allows a borrower

to recover any “actual damages . . . as a result of the failure” and “any additional

damages,” not to exceed $2,000, if there is “a pattern or practice of

noncompliance” with RESPA. 12 U.S.C. § 2605(f)(1). “Damages are an essential

element of a RESPA claim.” Lage, 839 F.3d at 1011. Thus, to prevail on a

RESPA claim, a plaintiff must show (1) a failure to comply with a RESPA

obligation and (2) actual damages sustained as a result of the failure to comply.

Renfroe v. Nationstar Mortg., LLC, 822 F.3d 1241, 1244 (11th Cir. 2016).

We have not defined “actual damages” under RESPA, and that term is not

defined in the statute itself. See 12 U.S.C. § 2605(f)(1)(A). Nor have we applied a

consistent definition of that term across statutes. Compare Fanin v. U.S. Dep’t of

Veterans Affairs, 572 F.3d 868, 872–73 (11th Cir. 2009) (holding that, under the

Privacy Act, 5 U.S.C. § 552a(g)(4), “actual damages” means “pecuniary losses”

only, and does not include recovery for “mental injuries, loss of reputation,

embarrassment or other non-quantifiable injuries”); with Banai v. Sec’y U.S. Dep’t

of Hous. & Urban Dev. ex rel. Times, 102 F.3d 1203, 1207 (11th Cir.1997) (stating

that the Fair Housing Act’s allowance for “actual damages,” 42 U.S.C.

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§ 3612(g)(3), includes compensation for “anger, embarrassment, and emotional

distress”). Because it is not necessary to the result, we construe “actual damages”

broadly and assume, but do not decide, that plaintiffs can recover both pecuniary

losses and non-pecuniary losses under RESPA. See Renfroe, LLC, 822 F.3d at

1244 (RESPA is a “remedial consumer-protection statute” that “should be

construed liberally in order to best serve Congress’s intent”).

For actual damages to be “a result of” a servicer’s noncompliance, the

“plaintiff must present evidence to establish a causal link between the [servicer’s]

noncompliance and [her] damages.” See Turner v. Beneficial Corp., 242 F.3d

1023, 1027–28 (11th Cir.2001) (en banc) (interpreting the Truth in Lending Act

(“TILA”), which similarly allows for recovery of “actual damage sustained . . . as a

result of the failure” to comply with the TILA, 15 U.S.C. § 1640(a)(1)).

Baez asserts that she was harmed by Specialized Loan’s response to her RFI,

which we assume arguendo failed to comply with Regulation X, in three ways.

First, she paid $4.70 in postage to send the request for information in the first

place. Second, she paid her attorneys to review Specialized Loan’s deficient

response. Finally, Baez claims that the deficient response deprived her and her

counsel “of the ability to determine whether there was another RESPA violation

under §1024.41(b)(2), which governs loss mitigation procedures.” The “lack of

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information that is due,” she says, “is the damages.” (Emphasis omitted). We

address each contention in turn.

First, the cost of sending an initial request for information is not a cost to the

borrower “as a result of the failure” to comply with a RESPA obligation. See 12

U.S.C. § 2605(f)(1)(A). At the time the request is sent, and the postage cost

incurred, no RESPA violation has occurred, nor will one necessarily occur. The

servicer may adequately respond to the request, or it may not, but the postage cost

to the borrower is the same in both instances. A cost that is incurred whether or

not the servicer complies with its obligations is not a cost that is caused by, or “a

result of,” the failure to comply. 2 See Turner, 242 F.3d at 1028.

2
This is not a situation in which a past error becomes “current,” as in Renfroe. In
Renfroe, we held that a plaintiff could establish actual damages where a servicer fails to respond
to a notice of error by fixing past errors and issuing refunds of erroneous charges. See 822 F.3d
at 1246. That is because a notice of error “makes past errors current by requiring servicers to fix
errors they find upon reasonable investigation, including by issuing refunds as necessary.” Id.
Thus, “[w]hen a plaintiff plausibly alleges that a servicer violated its statutory obligations and as
a result the plaintiff did not receive a refund of erroneous charges, she has been cognizably
harmed.” Id. at 1246–47. Here, in contrast, the servicer’s compliance or lack of compliance
with its RESPA obligations has no effect on the costs Baez incurred in sending the initial
request. For instance, a plaintiff is not entitled to a return of her postage costs if the servicer
adequately responds.
For similar reasons, we do not find persuasive Baez’s reliance on Sixth Circuit precedent,
which appears to allow recovery for the initial costs of preparing and sending a request for
information where the servicer gives a deficient response. See Marais v. Chase Home Finance
LLC, 736 F.3d 711, 721 (6th Cir. 2013) (“[T]he district court’s determination that costs Marais
incurred associated with preparing her [request] did not constitute actual damages did not take
into account Marais’s argument that those costs were for naught due to Chase’s deficient
response, i.e., her [request] expenses became actual damages when Chase ignored its statutory
duties to adequately respond.”) (citation omitted). As explained above, the cost of preparing and
sending the request, even if it is “for naught,” is not causally linked to the deficient response.
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For similar reasons, we agree with the district court that Baez’s evidence

fails to show a causal connection between her attorney’s review time and

Specialized Loan’s deficient response. Leaving aside the question of whether

attorney’s fees are damages recoverable under § 2605(f), the undisputed evidence

reflects that Baez had hired the Korte firm for a flat monthly fee to help with any

ensuing foreclosure and to achieve a loan modification. There is no evidence that

Baez incurred any additional representation costs as a result of the deficient

response. For instance, Baez has not shown that the deficient response caused her

to retain the Korte firm for longer than she otherwise would have. And the Korte

firm would have reviewed the response whether or not it complied with Regulation

X. Accordingly, the portion of her monthly fee Baez attributes to her attorney’s

review of the deficient response does not qualify as “actual damages . . . as a result

of” Specialized Loan’s failure to comply with RESPA.

Finally, Baez argues that Specialized Loan’s deficient response—

specifically its failure to produce the March 2015 and May 2015 letters to Baez,

among others—caused her “to forego immediately bringing a § 1024.41 claim”

alongside the claim for failure to adequately respond to her RFI. Baez casts

§ 1024.34 as an investigative tool for borrowers to discover other RESPA

violations. If a servicer frustrates that investigation by failing to respond or by

providing a deficient response, Baez reasons, it also frustrates a borrower’s ability

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to enforce its other rights under RESPA. As a result, according to Baez, a servicer

should be held liable in circumstances where, as here, its response was deficient.

Otherwise, she reasons, servicers can frustrate a borrower’s ability to enforce its

RESPA rights with relative impunity.

We have recognized that a plaintiff could potentially prove actual damages

for purposes of RESPA by showing that the servicer’s deficient response

“prevented her from taking some important action.” Bates v. JPMorgan Chase

Bank, NA, 768 F.3d 1126, 1135 (11th Cir. 2014) (“[Bates] has not explained why

her lack of knowing why she received the check in March somehow caused her

additional damages or prevented her from taking some important action.”). But

there is still a need for causation, which Baez does not dispute. And the plaintiff,

in order to have standing to bring such a claim, must establish “a concrete injury

even in the context of a statutory violation.” Spokeo, Inc. v. Robins, 136 S. Ct.

1540, 1549 (2016).

We need not resolve this issue here, however, because, in any case, she has

not properly preserved it for appeal. Throughout the proceedings before the

district court, Baez never claimed, as she does on appeal, that the lack of

information itself was the damages. In her motion for summary judgment, her

response in opposition to Specialized Loan’s motion for summary judgment, and

her reply to the Specialized Loan’s response to her motion for summary judgment,

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the only “actual damages” Baez requested were the cost of postage ($4.70) and her

attorney’s review time ($75.00). Her reply makes this explicit: she requested “a

judgment in the amount of $79.70, plus attorney’s fee and costs.” To be sure, in

her filings below, she addressed the interplay between § 1024.34 and § 1024.41

and the importance of receiving complete loss-mitigation information from the

servicer in response to an RFI, but she never put forth the specific argument that

she advances on appeal—that the failure to produce information due in response to

an RFI is itself “actual damages.”

It is well settled that we will generally not consider on appeal an issue or

argument not fairly presented to the district court. Resolution Trust Corp. v.

Dunmar Corp., 43 F.3d 587, 598–99 (11th Cir. 1995). While we have the

discretion to consider arguments raised for the first time on appeal, we will do so

only in “special circumstances.” Access Now, Inc. v. Sw. Airlines Co., 385 F.3d

1324, 1331 (11th Cir. 2004) (outlining these circumstances). We find no special

circumstances in this case that warrant our reaching an issue that was not fairly

presented to the district court.

V. Conclusion

For these reasons, we agree with the district court that Baez failed to

establish sufficient competent evidence of “actual damages . . . as a result of”

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Specialized Loan’s failure to comply with RESPA or Regulation X. 3 Accordingly,

we AFFIRM the district court’s grant of summary judgment against Baez.

3
To the extent Baez claims to have suffered damages in the form of mental anguish, she
raised that issue for the first time in her reply brief, so it is not properly before us. See Sapuppo
v. Allstate Floridian Ins. Co., 739 F.3d 678, 683 (11th Cir. 2014) (new arguments raised in a
reply brief “come too late”). In any case, Baez’s claim of mental anguish is based on the entire
course of her interactions with Specialized Loan. It has no clear causal connection to Specialized
Loan’s deficient response.
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