Steven Bivens v. Select Portfolio Servicing, In

Filing

Opinion issued by court as to Appellant Steven Bivens. Decision: Affirmed. Opinion type: Published. Opinion method: Signed. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-15119

Date Filed: 08/17/2017

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-15119
________________________
D.C. Docket No. 1:14-cv-01569-ODE
STEVEN BIVENS,
Plaintiff - Appellant,
versus
BANK OF AMERICA, N.A.
Defendants,
SELECT PORTFOLIO SERVICING, INC.,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(August 17, 2017)
Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges.
JILL PRYOR, Circuit Judge:

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Out of the blue, Steven Bivens received a letter from Select Portfolio
Servicing, Inc. (“SPS”), a company with which he had had no prior dealings that
purported to be his home loan servicer. Skeptical, Bivens wrote SPS a letter
demanding proof of its authority to service his loan. He neglected, though, to mail
his letter to the address SPS had designated for receiving such correspondence.
When SPS failed to provide the proof that Bivens had requested, he sued SPS for
damages under the Real Estate Settlement Procedures Act, 12 U.S.C. 2601 et seq.
(“RESPA”). 12 U.S.C. § 2605(e). The district court concluded that because a
regulation then in effect required Bivens to send his letter to SPS’s designated
address to trigger its duty to respond, SPS was entitled to summary judgment.
After careful consideration and with the benefit of oral argument, we affirm.
I.

FACTS

In 2006, Bivens borrowed money from Mortgage Lenders Network to
purchase a home. After a few years, he stopped paying the mortgage. On
December 4, 2012, SPS sent Bivens a letter announcing that Bank of America had
assigned it the servicing rights to his mortgage. The letter provided Bivens with
three separate addresses to use for correspondence—one for General
Correspondence, one for Disputes/Inquiries, and one for Payment Remittance. The
otherwise identical addresses had different post office box numbers. SPS’s letter
explained:
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If you wish to send a written request about your account or dispute
any of the information on this statement, please do not include it with
your monthly payment. All written requests must be sent to the
address listed below for Disputes/Inquiries, as this is our exclusive
address for processing these matters. If you send your request or
dispute to any other address, it may not be processed in accordance
with our Customer Service Timelines.
December 4 Letter at 2 (Doc. 89-3 at 69.) 1
Bivens, through his attorney, responded by sending a letter to SPS’s General
Correspondence address, not its Disputes/Inquiries address. In the letter, Bivens
stated, “It is my understanding that [SPS] . . . is now going to be the servicer of
[my] loan.” December 17, 2012 Letter at 1 (Doc. 90-6). He asserted that he “d[id]
not believe SPS ha[d] the standing to enforce this obligation” and asked SPS to
“fully identify the owner of the loan by name, address and phone number.” Id. at
3-4. He also requested from SPS “a certified copy of [his] promissory note in its
current condition showing all endorsements and/or any allonge that show that the
purported ‘owner’ of the loan maintains legal ‘holder in due course’ status as of
today’s date.” Id. at 4. Bivens designated his letter as a “qualified written request”
(“QWR”) under RESPA, 12 U.S.C. § 2605(e).
SPS received Bivens’s letter at its General Correspondence address and
forwarded it to its Disputes/Inquiries department. It sent Bivens two letters in
response to his letter. SPS’s first letter identified the holder of Bivens’s note as
1

Unless otherwise specified, citations to “Doc. _” refer to numbered entries on the
district court docket.

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Wells Fargo Bank, N.A., as Trustee, in Trust for SASCO 2007-MLN1 Trust Fund.
Its second letter informed Bivens that he had mailed his letter to the wrong address,
and once again provided him with its Disputes/Inquiries address. SPS did not,
however, timely provide Bivens a certified copy of his note in its current condition,
as he had requested.
Bivens sued SPS in the district court, alleging that he was entitled to actual
and statutory damages based on SPS’s failure to provide an appropriate response to
his letter, which he claimed qualified as a QWR under RESPA. 2 SPS moved for
summary judgment on the grounds that (1) Bivens’s letter was not a QWR because
he had not sought information regarding the servicing of his loan; (2) SPS’s
acknowledgment and response obligations under RESPA were not triggered
because Bivens failed to mail his letter to the correct address; and (3) Bivens could
not prove actual damages or recover statutory damages. The district court granted
SPS summary judgment, determining, among other things, that SPS had no duty to
respond because Bivens had mailed his QWR to the wrong address. Bivens timely
appealed.
II.

STANDARD OF REVIEW

2

Bivens also brought claims against two other entities, but the district court dismissed
these claims for failure to state a claim. On appeal, Bivens does not challenge the dismissal of
his claims against the other defendants.

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A litigant is entitled to summary judgment if it shows there is no genuine
dispute as to any material fact and that it is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). We review summary judgment decisions de novo, drawing
all reasonable inferences and reviewing all evidence in the light most favorable to
the nonmoving party. Likes v. DHL Express (USA), Inc., 787 F.3d 1096, 1098
(11th Cir. 2015). “An agency’s interpretation of its own regulations is ‘controlling
unless plainly erroneous or inconsistent with the regulation.’” Sierra Club v.
Johnson, 436 F.3d 1269, 1274 (11th Cir. 2006) (quoting Auer v. Robbins, 519 U.S.
452, 461 (1997)).
III.

ANALYSIS

RESPA is a consumer protection statute that imposes a duty on servicers of
mortgage loans to acknowledge and respond to inquiries from borrowers. See
12 U.S.C. § 2605(e); Freeman v. Quicken Loans, 132 S. Ct. 2034, 2038 (2012).
When a borrower submits a QWR—written correspondence that includes the
borrower’s name and account and sufficient detail about the information sought—
the servicer must provide “a written response acknowledging receipt of the
correspondence” and take certain other responsive actions within specified time
periods. 12 U.S.C. § 2605(e)(1)(A), (e)(1)(B), (e)(2).
RESPA originally authorized the Secretary of the Department of Housing
and Urban Development “to prescribe such rules and regulations” and “make such
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interpretations . . . as may be necessary to achieve [the statute’s] purposes.” 12
U.S.C. § 2617 (repealed 2011). Under this authority, the Secretary promulgated
Regulation X, 24 C.F.R. § 3500.21 (repealed 2014), RESPA’s primary
implementing regulation. See Lage v. Ocwen Loan Servicing LLC, 839 F.3d 1003,
1005 (11th Cir. 2016). Section 3500.21(e)(1), among other things, authorized
servicers to “establish a separate and exclusive office and address for the receipt
and handling of qualified written requests.” 24 C.F.R. § 3500.21(e)(1).3 The final
rulemaking notice from the Secretary explained that if a servicer established a
designated address for receiving QWRs, “then the borrower must deliver its
request to that office in order for the inquiry to be a ‘qualified written request.’”
Real Estate Settlement Procedures Act, Section 6, Transfer of Servicing of
Mortgage Loans (Regulation X), 59 Fed. Reg. 65,442, 65,446 (Dec. 19, 1994).
The district court held that because Bivens had not mailed his QWR to the
appropriate address, SPS had no duty to respond to it. Bivens argues Regulation X
did not apply to his QWR because SPS (1) did not properly designate an exclusive
address for receipt of QWRs and (2) processed both QWRs and other types of
3

The Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”)
transferred the Secretary’s rulemaking authority to the newly-created Consumer Financial
Protection Bureau (“CFPB”). Pub. L. No. 111-203, § 1098, 124 Stat. 1376, 2104 (2010).
Consistent with this provision of Dodd-Frank, the Secretary rescinded the version of Regulation
X at issue in this case. Removal of Regulations Transferred to the Consumer Financial
Protection Bureau, 79 Fed. Reg. 34,224, 34,224-25 (June 16, 2014). CFPB then promulgated a
new version of Regulation X, which, like its predecessor, allows a servicer to direct borrowers to
mail QWRs to a designated address. 12 C.F.R. §§ 1024.35(c), 1024.36(b).

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correspondence at the same office. We conclude, however, that SPS properly
designated an exclusive address for receiving QWRs and that the regulation did not
require SPS to use that office solely for the purpose of processing QWRs. The
district court did not err, then, in granting summary judgment to SPS.
The Secretary’s construction of § 3500.21(e)(1) was neither “plainly
erroneous [n]or inconsistent with the regulation.” Sierra Club, 436 F.3d at 1274
(internal quotation marks omitted). To the contrary, common sense suggests that if
a servicer may designate an address for receiving QWRs, it may require borrowers
to send QWRs to that address in order to receive a response. We thus accord
authoritative weight to the Secretary’s construction of § 3500.21(e)(1). If a
servicer designates a particular address for receiving QWRs, Regulation X requires
a borrower to mail a QWR to that address to trigger the servicer’s duty to respond. 4
Bivens argues that he was not required to deliver his letter to the address for
Disputes/Inquiries for it to qualify as a QWR because SPS failed to establish a
designated address for receiving QWRs. He contends that SPS designated no such
4

The Second and Tenth Circuits have reached the same conclusion, albeit for a different
reason. See Roth v. CitiMortgage Inc., 756 F.3d 178, 181-82 (2d Cir. 2014) (“[F]ailure to send
the request to the designated address does not trigger the servicer’s duties under RESPA”
(alterations omitted)); Berneike v. CitiMortgage, Inc., 708 F.3d 1141, 1149 (10th Cir. 2013)
(“Receipt at the designated address is necessary to trigger RESPA duties.”). Roth and Berneike
each held that Regulation X permissibly construed RESPA. See Roth, 756 F.3d at 182; Berneike,
708 F.3d at 1148. Without disputing that conclusion, we decline to follow Roth and Berneike’s
analysis here because we believe that the relevant issue is not whether the Secretary permissibly
construed RESPA, but whether he permissibly construed Regulation X, which requires a
different analysis. Compare Auer, 519 U.S. at 461, and Sierra Club, 436 F.3d at 1274, with
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-44 (1984).

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address because it never (1) identified an address for QWRs specifically or (2)
established an office solely to process QWRs. We conclude that SPS properly
designated an address for receiving QWRs and that its use of that address for
additional purposes is of no moment.
First, Bivens argues that SPS failed to designate an address for receiving
QWRs because it provided him with an address only for “written requests.” SPS’s
letter to Bivens said, “All written requests must be sent to the address listed below
for Disputes/Inquiries, as this is our exclusive address for processing these
matters.” December 4 Letter (Doc. 88-2 at 82). Bivens contends that § 3500.21
required SPS to use the term “qualified written requests”; designating an address
merely for written requests, he says, did not suffice. We disagree.
By directing borrowers to send all written requests to the specified address,
SPS necessarily directed them to send “qualified” written requests to that address.
Its notice used more accessible language than Regulation X required: borrowers
likely would be more familiar with the lay terms “disputes,” “inquiries,” and
“written requests” than with the statutory term of art, “qualified written request.”
24 C.F.R. § 3500.21(e)(1). SPS subjected itself to the administrative burden of
evaluating and prioritizing a larger quantity of mail to identify QWRs, perhaps so
as to minimize consumer confusion. To penalize it for doing so would be perverse.
This is not to suggest that a servicer may designate an address for QWRs using
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terminology so general or vague that it would fail to put a lay borrower on notice
that the address was intended for QWRs. A servicer’s designation of an exclusive
address for QWRs must be clear to a reasonable borrower—to say otherwise would
frustrate RESPA’s consumer-protection purpose. See Renfroe v. Nationstar
Mortg., LLC, 822 F.3d 1241, 1244 (11th Cir. 2016) (“RESPA, as a remedial
consumer-protection statute, should be construed liberally in order to best serve
Congress’s intent.”). We have little difficulty, however, concluding that SPS’s
designation of an address for “written requests” satisfied that standard.
Second, Bivens argues that SPS failed to “establish a separate and exclusive
office,” id., for processing QWRs because it processed both QWRs and other
correspondence at the same office. 5 We construe “[r]egulations with a common
sense regard for regulatory purposes and plain meaning.” United States v.
Fuentes-Coba, 738 F.2d 1191, 1195 (11th Cir. 1984) (internal quotation marks
omitted). Bivens’s construction of § 3500.21(e)(1) would frustrate, not serve, its
purpose. Section 3500.21(e)(1) was designed to help servicers timely respond to
QWRs by enabling them to more easily identify and prioritize correspondence that
purport to be QWRs. See Roth, 756 F.3d at 181 (“To aid servicers with th[e] task
of providing consumers with timely information, RESPA’s implementing
regulations allow (but do not require) servicers to establish a designated address
5

SPS does not dispute that it processed QWRs and other correspondences at the same
office using the same staff.

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for QWRs.”); 59 Fed. Reg. at 65,446 (“This rule does not require that a servicer
establish an office to handle borrowers’ complaints. It does, however, allow the
servicer to do so.”). Allowing a servicer to designate a specific mailing address for
QWR receipt at a common mail processing facility would enable its employees to
easily identify purported QWRs by the address they bear. In contrast, requiring a
servicer to maintain a separate office for the sole function of processing QWRs
would impose high costs on the servicer while providing little benefit. Bivens
notes that employees at a QWR-only processing facility could receive specialized
training for responding to QWRs, but a servicer could just as easily provide such
training to employees at a common mail processing facility. We thus reject
Bivens’s argument that to “establish a separate and exclusive office,” a servicer
must devote an office to the “separate and exclusive” purpose of QWR processing.
24 C.F.R. § 3500.21(e)(1).
Section 3500.21(e)(1) is more sensibly construed to authorize a servicer to
designate a particular office—“separate” from any other office it may have—as its
“exclusive” office for receiving QWRs, without regard to any other function that
office serves. Id. Such a construction accords with § 3500.21(e)(1)’s text and
purpose. We conclude that SPS successfully invoked § 3500.21(e)(1) by directing
borrowers to mail QWRs to a particular office, even though it used that office for
other purposes as well.
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Because Bivens failed to address his QWR to SPS’s designated address for
QWR receipt, SPS had no duty to respond to it. Thus, the district court did not err
in granting summary judgment to SPS. 6
IV.

CONCLUSION

We affirm the district court’s grant of summary judgment.
AFFIRMED.

6

Because we conclude that SPS had no duty to respond to Bivens’s letter, we need not
decide whether (1) the information that Bivens sought “relat[ed] to the servicing of [his] loan,”
as RESPA requires, 12 U.S.C. § 2605(e)(1)(A); (2) SPS’s failure to send Bivens the information
he had requested caused him to suffer damages, see Renfroe, 822 F.3d at 1246 (“[D]amages are
an essential element in pleading a RESPA claim.”); or (3) the district court erred by assuming
that SPS was Bivens’s servicer.
Bivens also raises several arguments on appeal related to the district court’s discovery
orders. “[W]e will not overturn discovery rulings unless it is shown that the District Court’s
ruling resulted in substantial harm to the appellant’s case.” Iraola & CIA, S.A. v. Kimberly-Clark
Corp., 325 F.3d 1274, 1286 (11th Cir. 2003) (internal quotation marks omitted). Bivens makes
no meritorious argument that the district court’s orders disposing of his discovery motions
resulted in any prejudice to his case. Those orders are thus AFFIRMED.

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