United States District Court, S.D. Florida
ORDER DENYING MOTION TO DISMISS
ROBERT
N. SCOLA, JR. UNITED STATES DISTRICT JUDGE.
Homeowners
Randi and Alan Pollack complain that their home-loan
servicer, Seterus, Inc., failed to properly respond to their
request for information as required by the implementing
regulations of the Real Estate Settlement Procedures Act.
Seterus counters that the Pollacks’ complaint should be
dismissed because their request for information did not meet
certain statutory requirements and therefore no response was
required. Seterus also argues the Pollacks have not
adequately alleged they suffered any actual damages. Seterus
has not persuaded the Court that the Pollacks have failed to
properly allege a regulatory violation or resulting actual
damages arising out of that violation. On the other hand, the
Court also concludes that the Pollacks have conceded that
neither their claim for statutory damages nor injunctive
relief is viable. The Court therefore grants in part
and denies in part Seterus’s motion
(ECF No. 17).
1.
Legal Standard
When
considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the Court must accept all of the
complaint’s allegations as true, construing them in the
light most favorable to the plaintiff. Pielage v.
McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). A
pleading need only contain “a short and plain statement
of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). “[T]he pleading
standard Rule 8 announces does not require detailed factual
allegations, but it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quotation omitted). A plaintiff must articulate
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
“A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. “The
plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Id. “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Id. Thus, a pleading that offers
mere “labels and conclusions” or “a
formulaic recitation of the elements of a cause of
action” will not survive dismissal. See
Twombly, 550 U.S. at 555. “Rule 8 marks a notable
and generous departure from the hyper-technical,
code-pleading regime of a prior era, but it does not unlock
the doors of discovery for a plaintiff armed with nothing
more than conclusions.” Iqbal, 556 U.S. at
679.
Yet,
where the allegations “possess enough heft” to
suggest a plausible entitlement to relief, the case may
proceed. See Twombly, 550 U.S. at 557. “[T]he
standard ‘simply calls for enough fact to raise a
reasonable expectation that discovery will reveal
evidence’ of the required element.” Rivell v.
Private Health Care Sys., Inc., 520 F.3d 1308, 1309
(11th Cir. 2008). “And, of course, a well-pleaded
complaint may proceed even if it strikes a savvy judge that
actual proof of those facts is improbable, and ‘that a
recovery is very remote and unlikely.’”
Twombly, 550 U.S. at 556.
2.
Facts as Alleged
The
Pollacks, on November 28, 2016, sent a letter to Seterus,
asking for information related to their home loan: telephone
call notes; text messages; call logs; a list of all outbound
calls conducted and created since Seterus began servicing
their loan; and copies of all documents Seterus ever sent to
the Pollacks. When, after nearly three months had passed, the
Pollacks had not received a timely acknowledgement or
response to their request, they sent Seterus, on February 22,
2017, a notice of error. On March 2, 2017, Seterus finally
sent an acknowledgment letter although that letter did not
specify whether it was in response to the Pollack’s
initial request for information related to their home loan or
to their later-sent notice of error. Then, on April 13, 2017,
Seterus sent a response to the Pollacks, explaining that it
believed Seterus had no obligation to reply to their request
under RESPA. Believing Seterus’s response to be
mistaken, the Pollacks sent a second notice of error, on May
5, 2017.
Because
of Seterus’s improper response to their correspondence,
the Pollacks claim they suffered damages in the form of:
(1) costs and legal fees incurred to prepare each subsequent
request for information and subsequent notices of error; (2)
costs incurred in connection with the photocopying and
mailing of the requests for information and notices of error;
(3) costs incurred in the form of time spent, transportation
costs, and other expense incurred during the process of
obtaining the Defendant’s compliance with Regulation X.
(Am. Compl. ¶ 26, ECF No. 13, 6.) The Pollacks also
allege entitlement to statutory damages as well.
(Id.)[1]
3.
Discussion
A.
The Pollacks’ initial correspondence triggered
Seterus’s response obligations.
In its
motion, Seterus focuses on the Pollacks’ failure to
properly allege a RESPA statutory claim. In accordance with
12 U.S.C. § 2605(e)(1)(A), under RESPA, “a
qualified written request from a borrower for
information” about a home loan, triggering
servicer-response obligations, must relate “to the
servicing of such loan.” “Servicing,” in
turn, is defined as “receiving any scheduled periodic
payments from a borrower pursuant to the terms of any loan .
. . and making the payments of principal and interest and
such other payments with respect to the amounts received from
the borrower as may be required pursuant to the terms of the
loan.” 12 U.S.C. § 2605(i)(3). The Court agrees
with ...