Meeks v. OCWEN Loan Servicing LLC
Filing
15
ORDER granting 6 Motion to Dismiss 1 Notice of Removal (State Court Complaint), FOR FAILURE TO STATE A CLAIM ; Dismissing Complaint with prejudice; Closing Case. Signed by Judge Beth Bloom on 7/26/2016. (ls) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-cv-81003-BLOOM/Valle
CHARLES MEEKS,
Plaintiff,
v.
OCWEN LOAN SERVICING LLC,
Defendant.
_____________________________________/
ORDER ON MOTION TO DISMISS
THIS CAUSE is before the Court upon Defendant Ocwen Loan Servicing LLC’s
(“Defendant”) Motion to Dismiss, ECF No. [6] (the “Motion”), seeking dismissal of Plaintiff
Charles Meeks’s (“Plaintiff”) Amended Complaint, ECF No. [1-1]. The Court has carefully
reviewed the record, the parties’ briefs, and the applicable law. For the reasons that follow, the
Motion is granted.
I.
BACKGROUND
Plaintiff initially filed suit in the County Court of the Fifteenth Judicial Circuit in and for
Palm Beach County, Florida, seeking relief for Defendant’s alleged violation of the Real Estate
Settlement Procedures Act, 12 U.S.C. § 2601, et. seq. (“RESPA”), and its implementing
regulation, 12 C.F.R. § 1024, et seq. (“Regulation X”). See ECF No. [1-1], Amended Complaint
¶¶ 1-2 (“Amended Complaint”). Specifically, Plaintiff seeks remedies for Defendant’s alleged
failure to comply with § 2605(k) of RESPA and § 1024.36 of Regulation X. See id. ¶ 3.
Defendant timely removed the matter to this Court, and now moves to dismiss the Amended
Complaint with prejudice. See ECF No. [6].
Plaintiff’s claim begins with the mailing of a letter. In this case, the letter was a written
request for information (“RFI”). See Amended Complaint ¶ 14. Plaintiff sent his RFI by
certified mail, which he and his counsel tracked through the certified mailing tracking number.
See id. ¶ 15. Defendant received the RFI by certified mail on November 10, 2015, and that same
day, Defendant’s agent signed the certified return receipt (the “Certified Receipt” or “Receipt”).
See ECF No. [1-1], Exh. B (“Certified Receipt”). Plaintiff does not claim that he did not receive
the Certified Receipt, and it would appear that he did in fact receive the Receipt, as Plaintiff
attached a copy of it to his Complaint. See id. On November 19, 2015, nine days after receiving
the RFI, Defendant mailed a substantively responsive letter to Plaintiff, addressing Plaintiff’s
questions. See Amended Complaint ¶ 16; see ECF No. [1-1], Exh. C (“Response”). Plaintiff
does not claim that Defendant provided a deficient Response, but on April 29, 2016, over five
months after having received the Response, Plaintiff sent a follow-up Notice of Error (“NOE”) to
Defendant. See Amended Complaint ¶ 17; ECF No. [1-1], Exh. D. In the NOE, Plaintiff,
through his attorney, states that “[w]e are unsure as to whether you have received our client’s
request.” ECF No. [1-1], Exh. D. Plaintiff claims that he sent the NOE because he “had not
received a written acknowledgement to [his] RFI within the required timeframe.” See Amended
Complaint ¶ 17. Plaintiff does not claim that Defendant failed to adequately respond to the
NOE.
Plaintiff brings two counts against Defendant for its alleged violation of 12 U.S.C.
§ 2605(k). In Count I, Plaintiff alleges that Defendant violated RESPA § 2605(k) through its
violation of Regulation X, 12 C.F.R. § 1024.36(c), by failing to acknowledge receipt of the RFI
within five days.
See Amended Complaint ¶¶ 22-23.
In Count II, Plaintiff alleges that
“[t]hrough its own conduct and the conduct of its designated counsel[,] Defendant has shown a
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pattern of disregard to the requirements imposed upon Defendants” by Regulation X. Id. ¶ 34.
As to damages, Plaintiff claims that as a “direct and proximate cause of Defendant’s failure to
comply with Regulation X and RESPA,” Plaintiff has “incurred actual damages in certified
postage costs of less than $100.00 for mailing the RFI and NOE, and attorney’s fees and costs,”
which Plaintiff’s attorneys accrued in “review of the insufficient response and in drafting the
NOE.”
Id. ¶¶ 28-29.
Plaintiff also claims that he is entitled to statutory damages for
Defendant’s violation as alleged in Count II. See id. ¶¶ 35-36. Defendant filed the instant
Motion to Dismiss on June 24, 2016. See ECF No. [6]. Plaintiff’s Response, and Defendant’s
Reply, timely followed. See ECF Nos. [13], [14].
II.
LEGAL STANDARD
Rule 8 of the Federal Rules requires that a pleading contain “a short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although a
complaint “does not need detailed factual allegations,” it must provide “more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(explaining that Rule 8(a)(2)’s pleading standard “demands more than an unadorned, the
defendant-unlawfully-harmed-me accusation”). In the same vein, a complaint may not rest on
“‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 557 (alteration in original)). “Factual allegations must be enough to raise a
right to relief above the speculative level.” Twombly, 550 U.S. at 555. These elements are
required to survive a motion brought under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, which requests dismissal for “failure to state a claim upon which relief can be
granted.”
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When reviewing a motion under Rule 12(b)(6), a court, as a general rule, must accept the
plaintiff’s allegations as true and evaluate all plausible inferences derived from those facts in
favor of the plaintiff. See Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration
Alliance, 304 F.3d 1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp.,
LLC, 608 F. Supp. 2d 1349, 1353 (S.D. Fla. 2009). However, this tenet does not apply to legal
conclusions, and courts “are not bound to accept as true a legal conclusion couched as a factual
allegation.” Twombly, 550 U.S. at 555; see Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cnty.
Sheriff’s Office, 449 F.3d 1342, 1352 (11th Cir. 2006). Moreover, “courts may infer from the
factual allegations in the complaint ‘obvious alternative explanations,’ which suggest lawful
conduct rather than the unlawful conduct the plaintiff would ask the court to infer.” Am. Dental
Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal, 556 U.S. at 682). A
court considering a Rule 12(b) motion is generally limited to the facts contained in the complaint
and attached exhibits, including documents referred to in the complaint that are central to the
claim. See Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009); Maxcess, Inc.
v. Lucent Technologies, Inc., 433 F.3d 1337, 1340 (11th Cir. 2005) (“[A] document outside the
four corners of the complaint may still be considered if it is central to the plaintiff’s claims and is
undisputed in terms of authenticity.”) (citing Horsley v. Feldt, 304 F.3d 1125, 1135 (11th Cir.
2002)).
III.
DISCUSSION
Defendant moves the Court to dismiss the Amended Complaint on a number of grounds.
First, Defendant argues that Plaintiff has failed to adequately plead the very premise of his claim:
that Defendant did not provide written receipt of the RFI within the mandated timeframe.
Defendant claims that Exhibit B, attached to Plaintiff’s Complaint, shows that Defendant’s agent
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signed the Certified Receipt on the day Defendant received the RFI, a writing that Defendant
claims qualifies as a “written response acknowledging receipt” under Regulation X. See ECF
No. [6] at 5. Defendant further argues that Plaintiff has not adequately alleged an injury in fact
pursuant to the recent Supreme Court Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) as revised
(May 24, 2016), and that in any event, Plaintiff has not alleged facts sufficient to support a claim
for actual or statutory damages under RESPA. See id. at 7-13. Defendant moves for dismissal
with prejudice due to the aforementioned deficiencies, and because amendment would constitute
“an abuse of the RESPA statute.” Id. at 13. The Court addresses Defendant’s arguments in turn.
A.
Count I – Violation of 12 C.F.R. § 1024.36(c).
Both parties have urged the Court to review the RFI, NOE, and Certified Receipt attached
to the Complaint, and the Court finds the documents central to Plaintiff’s claim. Accordingly,
the Court will review the attachments as appropriate in adjudicating the Motion. See Wilchombe,
555 F.3d at 959; Maxcess, Inc., 433 F.3d at 1340; Horsley, 304 F.3d at 1135. Plaintiff claims
that Defendant violated RESPA § 2605(k) through its violation of Regulation X. See Amended
Complaint ¶¶ 22-23. Section 2605 of RESPA governs the “servicing of mortgage loans and
administration of escrow accounts,” and implicates Regulation X by providing in relevant part
that “[a] servicer of a federally related mortgage shall not . . . fail to comply with any other
obligation found by the Bureau of Consumer Financial Protection [(“BCFP”)], by regulation, to
be appropriate to carry out the consumer protection purposes of this chapter.” See 12 U.S.C.
§ 2605(k)(1)(E).
Section 1024.36(c) of Regulation X, under the title “Acknowledgment of
receipt,” provides that
Within five days (excluding legal public holidays, Saturdays, and Sundays) of a
servicer receiving an information request from a borrower, the servicer shall
provide to the borrower a written response acknowledging receipt of the
information request.
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12 C.F.R. § 1024.36(c).
It is undisputed that Defendant received Plaintiff’s RFI on November 10, 2015 via
certified mail, and that Defendant’s agent signed the certified return receipt that same day. See
Certified Receipt. Plaintiff does not claim that he did not receive the signed Certified Receipt,
and Plaintiff received a substantive and timely response to the RFI shortly thereafter. Some five
months later, however, Plaintiff’s attorneys sent Defendant an NOE, stating that “[w]e are unsure
as to whether you have received our client’s request.” See Amended Complaint ¶ 17; see ECF
No. [1-1], Exh. D. It appears that in actuality, Plaintiff’s attorney was not “unsure” of anything,
as Plaintiff (through his attorney) concedes that “[t]he NOE here was merely sent to offset
certain S.D. Fla. cases that added that extra-statutory burden to do so.” ECF No. [13] at 7. So,
the question before the Court can be neatly summarized as such: Can a Plaintiff state a claim
under RESPA and Regulation X when he and his attorney (1) timely receive a certified return
receipt signed by a servicer’s agent providing actual notice that an RFI has been received; (2)
thereafter, timely receive a substantively responsive answer to that RFI from the servicer as
required by RESPA and Regulation X; and then (3) despite having timely received those
documents, send an NOE to the servicer many months later falsely questioning the servicer’s
receipt in order to create a claim for damages? The Court finds that a plaintiff cannot.
Whether Count I of the Complaint must be dismissed turns entirely on whether the
Certified Receipt constitutes a “written response acknowledging receipt” within the meaning of
12 C.F.R. § 1024.36(c). Both parties agree that Regulation X does not prescribe the specific
form required to acknowledge receipt of an RFI, but a regulation’s silence, of course, does not
end the inquiry. See ECF Nos. [6] at 6; [13] at 4. “The first rule in statutory construction is to
determine whether the language at issue has a plain and unambiguous meaning with regard to the
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particular dispute. If the statute’s meaning is plain and unambiguous, there is no need for further
inquiry.” United States v. Silva, 443 F.3d 795, 797-98 (11th Cir. 2006) (internal quotations
omitted). “This is so because ‘[t]he plain language is presumed to express congressional intent
and will control a court’s interpretation.’” Moss v. GreenTree-Al, LLC, 378 B.R. 655, 658 (S.D.
Ala. 2007) (quoting United States v. Fisher, 289 F.3d 1329, 1338 (11th Cir. 2002) (alternations
in the original). “A court ‘should not interpret a statute in a manner inconsistent with the plain
language of the statute, unless doing so would lead to an absurd result.’” Id. (quoting Silva, 443
F.3d at 798). This analysis applies to review of Regulation X, as “‘[r]egulations, like statutes,
are interpreted according to the cannons of construction.’” O’Shannessy v. Doll, 566 F. Supp. 2d
486, 491 (E.D. Va. 2008) (quoting Black & Decker Corp. v. Comm’r, 986 F.2d 60, 65 (4th Cir.
1993)). A court appropriately looks to dictionary definitions to ascertain the “plain language” of
a regulation.
See Burrage v. United States, 134 S. Ct. 881, 889 (2014) (describing prior
precedent has having relied “on dictionary definitions” to determine the “plain language”).
Section 1024.36(c) of Regulation X provides that within five days of receiving an
information request like an RFI, a servicer must provide “a written response acknowledging
receipt of the information request.” 12 C.F.R. § 1024.36(c). Neither party has provided the
Court with any authority addressing the specific language of this regulation, and to the Court’s
knowledge, the specific form required by § 1024.36(c) is an issue of first impression. The Court,
therefore, looks to the plain meaning of the regulation.
See Silva, 443 F.3d at 797-98.
Reviewing the language above, the regulation unambiguously requires a servicer to provide,
within five days: (1) a response; (2) in writing; that (3) acknowledges “receipt of the information
request.” Having deciphered the operative requirements of the regulation, the Court turns to
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dictionary definitions and persuasive authority to ascertain their meaning. See Burrage, 134 S.
Ct. at 889.
Webster’s Dictionary defines the word “response,” in relevant part, as “an act of
responding” or “something constituting a reply or a reaction.”
Response, WEBSTER’S
DICTIONARY (11th ed. 2012). It then defines the verb “respond” as meaning “to say something in
return: to make an answer,” or to “react in response.” Respond, WEBSTER’S DICTIONARY (11th
ed. 2012). The Certified Receipt meets this definition, as the Defendant agent’s signature on the
return receipt serves as both a “reaction” to having received Plaintiff’s certified mailing, and a
“reply” to that mailing, informing Plaintiff of Defendant’s receipt. See Certified Receipt; see
also Olsen v. United States, 1999 WL 250747, at *3 (D. Colo. Feb. 16, 1999) (attached signed
receipts for certified mailing “indicat[e] receipt by the IRS”); Chwarzynski v. United States, 1993
WL 424245, at *3 (N.D. Ill. Oct. 19, 1993) (“copy of the certified mail receipt indicat[es]
delivery to the Attorney General”). As to the definition of “writing,” Webster’s Dictionary
defines the word, in pertinent part, as “written form”; “language or symbols or characters written
or imprinted on a surface; readable matter.” Writing, WEBSTER’S DICTIONARY (11th ed. 2012).
The Certified Receipt is unquestionably made “in writing,” as Defendant’s agent signed the
Receipt in her own hand writing, and the Receipt provides a variety of written and visible
“language,” including a date stamp, reflecting relevant and “readable” information. See Certified
Receipt; see also Sprint Spectrum, LP v. City of Jeffersonville Bd. of Zoning Appeals, 2008 WL
833494, at *4 (S.D. Ind. Mar. 27, 2008) (finding that while a statute “does not include a
definition of ‘in writing,’ . . . giving the words their ordinary and plain meaning,” a “checklist”
form qualifies).
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Finally, the Certified Receipt “acknowledges receipt of the information request,” in this
case, Plaintiff’s RFI.
Black’s Law Dictionary defines the verb “receipt” to mean: “to
acknowledge in writing the receipt of something,” while Webster’s Dictionary defines the verb
as “the act of receiving something.” Receipt, BLACK’S LAW DICTIONARY (10th ed. 2014);
Receipt, WEBSTER’S DICTIONARY (11th ed. 2012). Webster’s Dictionary then defines “receive”
as “[t]o take or acquire.” Receive, WEBSTER’S DICTIONARY (11th ed. 2012). Although it should
go without saying, a central purpose of requiring a signed, return receipt is to convey to the
sending party that the recipient has received and acquired the mailing. See Manzer v. Herman,
2000 WL 637346, at *2 (D. Neb. Mar. 3, 2000), report and recommendation adopted, 2000 WL
852459 (D. Neb. Apr. 12, 2000) (finding that defendant served “federal income tax liabilities by
certified mail, and received the return receipt postcard indicating receipt by plaintiff”); see also
Olsen, 1999 WL 250747, at *3; Chwarzynski, 1993 WL 424245, at *3. In this case, the act of
signing and returning the Certified Receipt constituted a response that conferred knowledge upon
Plaintiff (and his attorney) that Defendant had received the RFI through its agent – knowledge
that Plaintiff now claims was deficient by regulation. See Jones v. Flowers, 547 U.S. 220, 231
(2006) (“After all, the State knew ex ante that it would promptly learn whether its effort to effect
notice through certified mail had succeeded.”). The only reason that Defendant’s agent even had
the opportunity to sign and return the Certified Receipt is because Plaintiff took the extra step
and incurred additional costs in postage so as to confirm when Defendant received the mailing
and to act accordingly if Defendant did not receive said mailing. See id at 229 (“We do not think
that a person who actually desired to inform a real property owner of an impending tax sale of a
house he owns would do nothing when a certified letter sent to the owner is returned
unclaimed.”). Tellingly, Plaintiff does not argue that he lacked actual knowledge of Defendant’s
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receipt within the required time period, but simply that, despite having received actual
knowledge, the acknowledgment was received in deficient form. The Court disagrees, and finds
that under the plain language of the regulation, Defendant’s timely, signed, and returned
Certified Receipt satisfies the requirement of § 1024.36(c).
The Court recognizes that “RESPA is a consumer protection statute that regulates the real
estate settlement process,” and that as a “remedial consumer-protection statute . . . RESPA is to
be ‘construed liberally in order to best serve Congress’ intent.’” Hardy v. Regions Mortgage,
Inc., 449 F.3d 1357, 1359 (11th Cir. 2006) (citing 12 U.S.C. § 2601(a)); Rawlings v.
Dovenmuehle Mortgage, Inc., 64 F. Supp. 2d 1156, 1165 (M.D. Ala. 1999) (quoting Ellis v.
General Motors Acceptance Corp., 160 F.3d 703, 707 (11th Cir. 1998)). However, as the Court
finds the plain language of the regulation dispositive, it need not delve into Congress’s intent.
See Birnholz v. 44 Wall St. Fund, Inc., 880 F.2d 335, 341 (11th Cir. 1989), certified question
answered, 559 So. 2d 1128 (Fla. 1990) (“Thus, the cardinal rule of statutory construction is that
‘[w]hen the language of the statute is clear and unambiguous and conveys a clear and definite
meaning, there is no occasion for resorting to the rules of statutory interpretation and
construction; the statute must be given its plain and obvious meaning.’”) (quoting Streeter v.
Sullivan, 509 So. 2d 268, 271 (Fla. 1987) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla.
1141, 137 So. 157, 159 (1931))). In the interests of completeness, the Court nevertheless notes
that the plain language of the regulation requires only a “response” informing the borrower that
the servicer is in “receipt of the information.” 12 C.F.R. § 1024.36(c). Had Congress intended
the written response to acknowledge that “the RFI had begun to be processed by the servicer, as
opposed to sitting in the mail room,” as Plaintiff contends without citation, Congress could have
included such language in RESPA, and the BCFP could have included such language in the
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regulation. See ECF No. [13] at 4. Neither Congress nor the BCFP provided such language in
§ 1024.36(c), but instead, implemented further requirements at subsection (d), mandating that
after acknowledgment, a servicer must process the request and timely provide a substantive
response. See 12 C.F.R. § 1024.36(d). Accordingly, the Court finds that Congress’s intent is
expressed by the plain language of the statute and regulation. See Fisher, 289 F.3d at 1338;
Moss, 378 B.R. at 658.
Although RESPA is a remedial statute, the Court need not construe it (or its
implementing regulation) so as to create a cause of action where none exists. Plaintiff sent a
request for information.
Plaintiff received confirmation from Defendant within five days,
pursuant to Plaintiff’s own certified mailing, that Defendant had received that request. Plaintiff
then timely received a substantive response to his request. Five months later, after having
received the response Plaintiff desired, Plaintiff’s attorney sent a factually incorrect letter to
Defendant in an effort to create a federal cause of action. Plaintiff’s unsupported argument that
the Certified Receipt does not constitute a “written response” within the meaning of § 1024.36(c)
is an argument based entirely in semantics that the Court, while forced to entertain, finds
unpersuasive. The Certified Receipt conclusively shows that Count I of the Complaint must fail,
and it is dismissed with prejudice.
B.
Count II – Statutory Damages
For related reasons, the Court must also dismiss Count II, Plaintiff’s “pattern or practice”
claim for statutory damages. “The following damages are recoverable under RESPA for a
section 2605 violation: ‘(A) any actual damages to the borrower as a result of the failure; and
(B) any additional damages, as the court may allow, in the case of a pattern or practice of
noncompliance with the requirements of this section, in an amount not to exceed $1,000.’”
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McLean v. GMAC Mortgage Corp., 595 F. Supp. 2d 1360, 1365 (S.D. Fla. 2009), aff’d, 398 F.
App’x 467 (11th Cir. 2010) (quoting 12 U.S.C. § 2605(f)(1)). “[D]amages are an essential
element in pleading a RESPA claim.” Renfroe v. Nationstar Mortgage, LLC, 822 F.3d 1241,
1246 (11th Cir. 2016). In Renfroe, the Eleventh Circuit recently “observe[d] without ruling on
the question, that the use of ‘additional’” at § 2605(f)(1) “seems to indicate that a plaintiff cannot
recover pattern-or-practice damages in the absence of actual damages.” Id. at 1247 n.4. Shortly
thereafter, the Supreme Court issued its decision in Spokeo, Inc. v. Robins, instructing lower
courts as to the standing requirements necessary for a claim asserting a statutory violation. As
the Supreme Court explained, standing requires a plaintiff to have “(1) suffered an injury in fact,
(2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be
redressed by a favorable judicial decision.” Spokeo, Inc., 136 S. Ct. at 1547 (internal citations
omitted). “To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion
of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not
conjectural or hypothetical.’” Id. at 1548 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560
(1992)). “For an injury to be particularized, it must affect the plaintiff in a personal and
individual way.” Id. (quotations omitted). As to the “concrete” requirement, the Supreme Court
explained that
A “concrete” injury must be “de facto”; that is, it must actually exist. See Black’s
Law Dictionary 479 (9th ed. 2009). When we have used the adjective “concrete,”
we have meant to convey the usual meaning of the term—“real,” and not
“abstract.” Webster’s Third New International Dictionary 472 (1971); Random
House Dictionary of the English Language 305 (1967). Concreteness, therefore,
is quite different from particularization.
Id. Importantly, “Article III standing requires a concrete injury even in the context of a statutory
violation.” Id. at 1549. Here, and as explained above, Plaintiff has not suffered a concrete injury
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in fact. Therefore, pursuant to the Eleventh Circuit’s persuasive dicta in Renfroe and the
Supreme Court’s guidance in Spokeo, Plaintiff, in this case, cannot assert a statutory violation.
Moreover, courts have interpreted the term “pattern or practice” in accordance with the
usual meaning of the words, suggesting “a standard or routine way of operating.” McLean, 595
F. Supp. 2d at 1365 (quoting In re Maxwell, 281 B.R. 101, 123 (Bankr. D. Mass. 2002)). Failure
to respond to one, or even two qualified written requests does not amount to a “pattern or
practice.” See id.; In re Tomasevic, 273 B.R. 682 (Bankr. M.D. Fla. 2002). In Renfroe, the
Eleventh Circuit held that statutory damages may be sufficiently plead where, in addition to the
alleged RESPA violation against a plaintiff, the complaint alleges unrelated RESPA violations.
See 822 F.3d at 1247. While a plaintiff need not plead the “identities of other borrowers, the
dates of the letters, and the specifics of their inquiries” to survive dismissal, Iqbal and Twombly
still require that a plaintiff plead “enough facts to state a claim to relief that is plausible on its
face.” Id. (quoting Twombly, 550 U.S. at 570). In this case, Plaintiff has alleged merely that
“[t]hrough its own conduct and the conduct of its designated counsel Defendant has shown a
pattern of disregard to the requirements imposed upon Defendants by Federal Reserve
Regulation X.” Amended Complaint ¶¶ 18, 34. This does not provide sufficient facts to
plausibly allege an impermissible “standard or routine way of operating,” and Count II is
dismissed. See McLean, 595 F. Supp. 2d at 1365.
IV.
CONCLUSION
For the reasons stated herein, it is ORDERED AND ADJUDGED that Defendant’s
Motion to Dismiss, ECF No. [6], is GRANTED. The Complaint is DISMISSED WITH
PREJUDICE. The CLERK is directed to CLOSE this case.
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DONE AND ORDERED in Miami, Florida, this 25th day of July, 2016.
_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record
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