Nash v. PNC Bank, N.A.
MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 4/20/2017. (aos, Deputy Clerk) Modified on 4/20/2017 (aos, Deputy Clerk).
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
Civil Action No. TDC-16-2910
PNC BANK, N.A.,
d/b/a PNC Mortgage,
After Plaintiff Scott Nash's mother passed away, the mortgage payments on her home
Nash, who lives in the home, sought a loan modification from Defendant PNC Bank
("PNC") in hopes of assuming the mortgage and finding a way to keep the property.
denied his application.
Nash now brings this civil action against PNC, alleging that the
explanation given for the denial of his loan modification was inadequate under the Real Estate
Settlement Procedures Act ("RESPA"), 12 U.S.C.
regulations, known as Regulation X, 12 C.F.R.
2601-2617 (2012), and its implementing
1024.1-1024.41 (2016). Pending before the
Court is PNC's Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the
reasons set forth below, the Motion is GRANTED IN PART and DENIED IN PART.
Scott Nash's mother, Patricia Nash, owned real property located in Montgomery Village,
Maryland (the "Property").
Patricia Nash passed away in September 2014, and Scott Nash
("Nash") was appointed the personal representative of her estate. The Property is encumbered
by a Refinance Deed of Trust (the "Mortgage") in favor of PNC, which is the servicer of the
After Patricia Nash's death, payments on the Mortgage lapsed.
foreclosure proceedings in the Circuit Court for Montgomery County, Maryland.
Nash, No. 405281-V (Md. Dist. Ct. filed May 21,2015).
See Ward v,
Nash is contesting the foreclosure.
On or about March 23, 2016, Nash, through counsel, submitted a loan modification
application to PNC pursuant to, among other grounds, the Home Affordable
PNC confirmed receipt of the application on March 24, 2016. On or 'about
April 22, 2016, PNC sent a letter to Nash requesting that he submit additional documentation by
May 6, 2016. Nash, through counsel, submitted the additional paperwork on May 5, 2016. PNC
acknowledged receipt of the documents the same day.
PNC denied Nash's loan modification application on June 3, 2016. The letter denying
the application (the "Denial Letter"), which Nash attached to the Complaint, informed Nash that:
[YJour assignee or mortgage owner, FEDERAL HOME LOAN
CINCINNATI, cannot approve your request for assistance for the:
Making Home Affordable HAMP Modification because we service your
loan on behalf of an investor or group of investors that has not given us
the contractual authority to modify your loan for this alternative to
Making Home Affordable HAMP Tier II Modification because we service
your loan on behalf of an investor or group of investors that has not given
us the contractual authority to modify your loan for this alternative to
CompI. Ex. 1 at 3, ECF No. 2-1. The Denial Letter informed Nash that he could dispute the
denial of the HAMP modifications by sending an email to MHA email@example.com
submitting a request in writing to an address in Miamisburg, Ohio.
According to the Denial
Letter, certain other types of loan modifications and hardship assistance were unavailable to
Nash for the same reason the HAMP modifications were denied. Other forms of relief were
denied for a variety of reasons, including the amount of unpaid principal remaining, PNC's
inability to verify Nash's income "in conjunction with the assignee/mortgage
owner or private
mortgage insurance modification guidelines," Nash's failure to document a "temporary financial
hardship that meets the guidelines set forth by the assignee/mortgage owner or private mortgage
insurance company of your loan," and Nash's intent to retain the Property.
Id. PNC informed
Nash that he could appeal denials of the non-RAMP modifications and hardship assistance to a
different office at the same address in Miamisburg, Ohio. It provided a third address, in Dayton,
Ohio, to which Nash could send notice of errors in, or request information about, his account.
On June 14, 2016, Nash, through counsel, sent a letter to the address provided for
disputing denial of the RAMP modifications (the "Appeal Letter"). The Appeal Letter, a copy of
which was attached to the Complaint, purported to be both an appeal of the RAMP modification
denial and a Qualified Written Request ("QWR") under RESPA, 12 U.S.C.
Appeal Letter, Nash stated that PNC "failed to identify and provide copies of' the restrictions
that PNC claimed to have necessitated the denial of Nash's RAMP modification.
at 3, ECF No. 2-2.
CompI. Ex. 2
Asserting that RAMP guidelines require a servicer to identify what
applicable servicing or investor guidelines "make it unfeasible" to evaluate an application for a
RAMP modification, the Appeal Letter claimed that it was "inexplicable that, despite an obvious
investor restriction, PNC still conducted the RAMP review only to deny the same."
Appeal Letter noted that the Denial Letter did not report any efforts to convince Federal Rome
Loan Bank of Cincinnati ("FRLBC") to waive its restrictions, even though RAMP guidelines
require a servicer to maintain records demonstrating that the servicer "made a reasonable effort
to seek a waiver from the investor." Id.
On June 20, 2016, PNC transmitted a letter to Nash (the "Response Letter") stating that
"an independent appeal review determined that the information provided in your complete Loss
Mitigation Application was correctly evaluated for a loan modification according to PNC rules
and your investor-provided
Compi. Ex. 3 at 2, ECF No. 2-3. Nash's appeal was
therefore denied. Nash filed suit in the Circuit Court for Montgomery County, alleging that PNC
violated RESPA because (1) the substance of the Denial Letter and the Response Letter was
inadequate; and (2) PNC failed to comply with the requirements for processing a QWR. After
PNC removed the case to this Court, Nash filed the Amended Complaint that is the subject of the
pending Motion to Dismiss.
In its Motion to Dismiss, PNC asserts that Nash has failed to state a plausible claim for
relief under RESP A because (1) Nash lacks standing because there is no private right of action
under HAMP; (2) Nash has failed to state a claim under Regulation X because PNC's Denial
Letter contained an adequate explanation for the denial of the HAMP loan modifications and did
not have to identify the investor guidelines that barred consideration of such a modification; (3)
the Appeal Letter does not constitute a Qualified Written Request within the meaning of RESP A
and was not sent to the appropriate address; and (4) Nash has failed sufficiently to allege
damages caused by the alleged violations.
Because a fair reading of the Amended Complaint does not support the conclusion that
Nash is asserting a claim under HAMP directly, and establishes that Nash's claim arises under
RESPA, PNC's standing argument fails. The Court addresses the remaining arguments in tum.
To defeat a motion to dismiss under Federal Rule of Civil Procedure
complaint must allege enough facts to state a plausible claim for relief. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). A claim is plausible when the facts pleaded allow "the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged."
conclusions or conclusory statements do not suffice. Id. The Court must examine the complaint
as a whole, consider the factual allegations in the complaint as true, and construe the factual
allegations in the light most favorable to the plaintiff.
(1994); Lambeth v. Bd. ofComm'rs
Albright v. Oliver, 510 U.S. 266, 268
of Davidson Cty., 407 F.3d 266,268 (4th Cir. 2005).
Courts are permitted to consider documents attached to a complaint "so long as they are
integral to the complaint and authentic."
Kensington Volunteer Fire Dep't, Inc. v. Montgomery
Cty., 684 F.3d 462,467 (4th Cir. 2012) (quoting Philips v. Pitt Cty. Mem 'I Hosp., 572 F.3d 176,
180 (4thCir. 2009)). Accordingly, the Court considers the Denial Letter, the Appeal Letter, and
the Response Letter, each of which was attached to the original Complaint and relied upon in the
Amended Complaint and briefing on the Motion to Dismiss.
12 C.F.R. ~ 1024.41(d)
Congress enacted RESP A to protect consumers from "unnecessarily
charges caused by certain abusive practices" in the real estate mortgage industry, and to ensure
"that consumers throughout the Nation are provided with greater and more timely information on
the nature and costs of the settlement process."
12 U.S.C. ~ 2601(a).
regulations, which are codified at 12 C.F.R. ~~ 1024.1 to 1024.41 and known as "Regulation X,"
see 12 C.F.R. ~ 1024.1, prescribe additional duties and responsibilities of mortgage servicers
under RESP A.
Under a provision of Regulation X entitled "Loss mitigation procedures,"
servicers of federally related mortgages must take certain steps when a borrower applies for loss
mitigation measures, such as the loan modifications
sought in this case.
See 12 C.F.R. ~
1024.41. As relevant here, "[i]f a borrower's complete loss mitigation application is denied for
any trial or permanent loan modification option available to the borrower," the servicer must
state in the required notice to the borrower "the specific reason or reasons for the servicer's
determination for each such trial or permanent loan modification and, if applicable, that the
borrower was not evaluated on other criteria." Id.
A borrower may enforce
violations of this provision through a private cause of action pursuant to 12 U.S.C.
In notifying Nash that his HAMP loan modification application had been denied, PNC
stated that FHLBC could not approve his request for a modification because "we service your
loan on behalf of an investor or group of investors that has not given us the contractual authority
to modify your loan for this alternative to foreclosure option."
Compl. Ex. 1 at 3. After Nash
appealed the decision, PNC confirmed that his application was evaluated "according to PNC
rules and your investor-provided guidelines."
Compl. Ex. 3 at 1. According to Nash, 12 C.F.R.
1024.41 required PNC "to provide a substantive response to Plaintiffs
application, and specifically, to identify investor restrictions that prohibit a loan modification."
Am. Compl. ,-r 20. PNC contends that the Denial Letter adequately stated the "specific reason or
reasons" for its decision to deny Nash's application for a HAMP modification,
and that 12
1024.41 does not require a servicer to identify applicable investor restrictions that
prohibit a loan modification.
Few courts have considered the scope of 12 C.F.R.
1024.41(d) and what specifically
must be provided to a borrower whose application for a loan modification is denied.
party has cited authority to direct the Court in determining whether the information included in
the Denial Letter was sufficient. However, the Consumer Financial Protection Bureau ("CFPB")
has released an "official Bureau interpretation"
of 12 C.F.R.
addresses this question. See 12 C.F.R. Pt. 1024, Supp. I,
1024.41 that specifically
cmt. 1. On February 14,2013,
the CFPB issued "Mortgage Servicing Rules Under the Real Estate Settlement Procedures Act
(Regulation X)," a final rule that amended Regulation X to implement sections of the DoddFrank Wall Street Reform and Consumer Protection Act and included "a commentary that sets
forth an official interpretation to the regulation."
Mortgage Servicing Rules Under the Real
Estate Settlement Procedures Act (Regulation X), 78 Fed. Reg. 10696, 10696 (Feb. 14, 2013)
[hereinafter, "Mortgage Servicing Rules"]'
This commentary, published in the Code of Federal
Regulations at 12 C.F.R. Pt. 1024, Supp. I, "is the primary vehicle by which the Bureau of
Consumer Financial Protection issues official interpretations of Regulation X."
1024, Supp. I, Intro., cmt. 1. In its official interpretation of 12 C.F.R.
12 C.F .R. Pt.
1024.41(d), the CFPB
If a trial or permanent loan modification option is denied because of a
requirement of an owner or assignee of a mortgage loan, the specific reasons in
the notice provided to the borrower must identify the owner or assignee of the
mortgage loan and the requirement that is the basis of the denial. A statement that
the denial of a loan modification option is based on an investor requirement,
without additional information specifically identifying the relevant investor or
guarantor and the specific applicable requirement, is insufficient.
12 C.F.R. Pt. 1024, Supp. I,
41(d), cmt. 1 (emphasis added).
In the Summary of the
Rulemaking Process published in the Federal Register with the amendments to Regulation X and
the official interpretations, the CFPB explained that the addition of this comment stemmed from
its recognition of:
the consumer frustration resulting from servicer statements that investor
requirements or net present value tests bar a loan modification option when the
proper application of such purported requirements or tests mayor may not
actually result in such a determination. To assist consumer understanding, and to
effectuate the appeal process, the Bureau believes that servicers that deny a loan
modification on the basis of an investor requirement or net present value model
must provide additional detail to support such statements.
Mortgage Servicing Rules, 78 Fed. Reg. at 10830.
Although the CFPB's commentary is not binding authority, courts have found its official
interpretations to be "highly persuasive" when they fill "a gap in the text of Section 1024.41 and
squarely address the factual situation described in the Complaint."
Servicing, LLC, No. 15-CV-4575(JS)(AKT),
He v. Ocwen Loan
2016 WL 3892405, at *2 (E.D.N.Y. July 14,2016)
(relying on the official interpretations of 12 C.F.R. ~ 1024.41(c) and (g)); see also Sutton v.
CitiMortgage, Inc., --- F. Supp. 3d ---, No. 16-Civ-1778 (KPF), 2017 WL 122989, at *6, *11
(S.D.N.Y. Jan. 12, 2017) (relying on the official interpretations of 12 C.F.R. ~~ 1024.35 and
1024.36 and 12 U.S.C. ~ 2605(k)(l)(C));
Zaychick v. Bank of America, NA., No. 9:15-CV-
2015 WL 4538813, at *2 (S.D. Fla. July 27, 2015) (relying on official
commentary to 12 C.F.R. ~~ 1024.35 and 1024.36 found in the Amendments
to the 2013
Mortgage Rules Under the Equal Credit Opportunity Act (Regulation B), Real Estate Settlement
Procedures Act (Regulation X), and the Truth in Lending Act (Regulation Z), 78 Fed. Reg.
60382-01 (Oct. 1,2013))).
Cf Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 193
(4th Cir. 2009) (stating that an agency's
unless plainly erroneous or inconsistent
Robbins, 519 U.S. 452, 461 (1997))).
of its own ambiguous regulation is
with the regulation"
(quoting Auer v.
One court has specifically relied on the CFPB's official
of 12 C.F.R. ~ 1024.41(d) to allow a plaintiff to proceed with an amended
complaint asserting the precise claim before this Court:
that a servicer violated 12 C.F.R.
1024.41(d) by providing only a general explanation that a loan modification was denied based on
a failure to meet investor guidelines. In re Wiggins, No. 12-26993 (JKS), 2016 WL 7115864, at
*5 (Bankr. D.N.J. Dec. 6, 2016).
In light of the CFPB' s guidance that the denial of a loan modification option based on an
investor requirement is "insufficient" if it does not provide "the specific applicable requirement"
that was not met, the Court concludes that Nash has adequately alleged that the Denial Letter's
explanation for denying his HAMP loan modification "may lack the specificity required by 12
C.F.R. 1024.41(d)." See Wiggins, 2016 WL 7115864, at *5. Accordingly, the Motion is denied
as to the alleged violation of 12 C.F.R.
Asserting that his Appeal Letter constituted a QWR under RESPA, Nash claims that PNC
failed to comply with RESPA's requirements for responding to a QWR.
Under 12 U.S.C.
2605, servicers of federally related mortgage loans owe to borrowers a duty to respond to QWRs
seeking "information relating to the servicing of such loan."
2602(1) (defining "federally related mortgage loan").
See also id.
RESP A defines a QWR as a written
that "includes, or otherwise enables the servicer to identify, the name and
account of the borrower" and "includes a statement of the reasons for the belief of the borrower,
to the extent applicable, that the account is in error or provides sufficient detail to the servicer
regarding other information sought by the borrower."
Within 30 days of its
receipt of a QWR, the servicer must conduct an appropriate investigation, take any necessary
action, such as making appropriate corrections to the borrower's account, and provide a written
response to the borrower providing any requested information, describing any corrections made,
or explaining its reasons for failing to do so. Id.
2605(e) (or any provision of
S 2605( e).
A servicer that fails to comply with
2605) is liable for actual damages and, upon a finding of a
"pattern or practice" of noncompliance by the servicer, up to $2,000 in statutory damages. Id.
PNC argues that (1) the Appeal Letter did not qualify as a QWR because its substance did
not concern the servicing of the Mortgage and (2) PNC had no obligation to respond to the
Appeal Letter because it was not sent to the address PNC designated for receipt of QWRs. Nash
argues that, in light of RESPA's broad consumer protection goals, the Court should view as a
QWR his request for information about the denial of the loan modification, such as details on
PNC's efforts to convince FHLBC to approve a loan modification.
Nash further contends that
even ifthe letter was not sent to PNC's address for receiving QWRs, the requirement that QWRs
be directed to a specific address is irrational because it forces borrowers seeking to address
different issues arising from the same servicer action, such as filing an appeal and requesting
information, to send multiple, identical letters to different addresses.
The Court agrees with PNC that Nash's request for information relating to the denial of
his HAMP loan modification application, including his request for a description of steps taken to
convince FHLBC to approve a loan modification,
was not a QWR within the meaning of
RESP A, such that PNC was not required to provide a response that complied with the
requirements of 12 U.S.C.
Section 2605(e) requires servicers to respond to QWRs
"relating to the servicing of'
"Servicing" is defined in RESPA as:
receiving any scheduled periodic payments from a borrower pursuant to the terms
of any loan, including amounts for escrow accounts described in section 2609 of
this title, 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.
Courts have repeatedly held that requests for information related to loan
modifications do not concern "servicing" and therefore are not QWRs. See, e.g., Sirote v. BBVA
Compass Bank, 857 F. Supp. 2d 1213, 1221-22 (N.D. Ala. 2010) ("Courts routinely interpret
section 2605 as requiring a QWR to relate to the servicing of a loan, rather than the creation or
modification of a loan." (quoting Gates v. Wachovia Mortg., FSB, No. 2:09-cv-02464-FCD/EFB,
2010 WL 2606511, at *3 (E.D. Cal. June 28, 2010))), aff'd, 462 F. App'x 888 (lIth Cir. 2012);
see also Hudgins v. Seterus, Inc., 192 F. Supp. 3d 1343, 1349-51 (S.D. Fla. 2016) (noting that
"[ a] number of courts have held that inquiries about a loan modification
within the meaning of
do not relate to
2605" and holding the same); Bullock v. Ocwen Loan
Servicing, No. PJM-14-3836, 2015 WL 5008773 at *10 (D. Md. Aug. 20, 2015) ("[A] request for
information about loan modification does not constitute a QWR."); Mbakpuo v. Wells Fargo
Bank, NA., No. RWT-13-2213, 2015 WL 4485504, at *7-8 (D. Md. July 21,2015) (holding that
a series of letters contending that .Wells Fargo improperly denied the plaintiffs
request for a
HAMP modification were not QWRs); Van Egmond v. Wells Fargo Home Mortg., No. SACV12-0112,2012 WL 1033281, at *4 (C.D. Cal. Mar. 21, 2012) (stating that the defendant was "not
obligated" to respond to the plaintiffs
requests for information concerning the denial of his loan
modification application because they did not concern "servicing").
Cf Martini v. Jp Morgan
Chase Bank, 634 F. App'x 159, 164 (6th Cir. 2015) ("Loan modification requests do not qualify
as QWRs because they do not relate to the loan's servicing.").
required to comply with the QWR requirements of
Consequently, PNC was not
in responding to Nash's Appeal
Letter requesting information about the denial of his loan modification application.
The comparatively broad language found in 12 C.F.R.
QWRs seeking information, does not alter this conclusion.
1024.36(a), which addresses
That regulation states that a servicer
shall provide a response to "any written request for information from a borrower that includes
the name of the borrower, information that enables the servicer to identify the borrower's
mortgage loan account, and states the information the borrower is requesting with respect to the
borrower's mortgage loan." 12 C.F.R.
Nash argues that the Appeal Letter sought
information "with respect to the borrower's mortgage loan," thus obligating PNC to respond
within the QWR requirements, even if the Appeal Letter did not concern "servicing" as required
of a QWR under 12 U.S.C.
This argument fails because the language in a regulation
cannot be read to broaden the scope of the statutory definition of "servicing" or to expand the
types of requests for information constituting a QWR beyond those established by the statute.
See, e.g., Smallwood v. Bank of America, NA., NO.1 :15-cv-336, 2015 WL 7736876, at *7 n.13
(S.D. Ohio Dec. 1, 2015) (declining to read 12 C.F.R.
"servicing" under RESPA).
1024.36 to expand the definition of
Accordingly, reference to 12 C.F.R.
1024.36 cannot transform a
request for information about a loan modification into a QWR. Bracco v. PNC Mortgage, No.
2016 WL 4507925, at *4 (M.D. Fla. Aug. 29, 2016) ("Regulation X's
governing a servicer's response to loss mitigation applications are found in
1024.36(c)."); Hudgins, 192 F. Supp. 3d at 1351 (holding that a request for loan
modification information does not suffice to bring a claim under RESP A "if premised on a
failure to comply with
1024.36(d)(2)(i)(B) of Regulation X"). Thus, 12 C.F.R.
not mandate that PNC treat the Appeal Letter as a QWR and respond pursuant
requirements of 12 U.S.C.
Likewise, the Appeal Letter does not qualify as a "notice of error," a form of QWR
described in 12 C.F.R.
That section imposes a duty upon servicers to respond to
notices informing the servicer of particular specified categories of "covered errors."
Upon receipt of a notice of a covered error, a servicer must investigate the
borrower's assertions and provide a response within the specified time, which depends upon the
nature of the alleged error. See 12 C.F.R.
of 12 C.F.R.
1024.35(e). Failure to comply with the requirements
1024.35 is enforceable by private action under 12 U.S.C. 2605.
See Lage v.
Ocwen Loan Servicing LLC, 839 F.3d 1003, 1007 (l1th Cir. 2016) (stating that there is a private
right of action to enforce 12 C.F.R.
1024.35 under 12 U.S.C.
But see Miller v. HSBC
Bank US.A., NA., No. 13-Civ-7500, 2015 WL 585589, at *11 (S.D.N.Y. Feb. 11,2015) (stating
that 12 C.F.R.
1024.35 does not provide a private right of action for damages).
The "failure to provide accurate information to a borrower regarding loss mitigation
options and foreclosure, as required by 12 C.F.R. 1024.39," which identifies information that a
servicer must provide to a delinquent borrower within 45 days of delinquency, is a form of
covered error. See 12 C.F.R. 1024.35(b)(7).
However, courts have held that a claim that a loss
mitigation application was improperly denied, or that the information provided about such a
denial was inadequate, is not a "covered error" under 12 C.F .R.
1024.35(b). See Sutton, 2017
WL 122989, at *15 ("RESPA (through Regulation X) regulates many aspects of loss mitigation
practices, but does not regulate the correctness of a loss mitigation decision, and certainly does
not encompass errors in loss mitigation decisions within the catch-all provision in the definition
of 'covered errors."'); Farra} v. Seterus, Inc., NO.15-cv-11878, 2015 WL 8608906, at *3-4 (E.D.
Mich. Dec. 14, 2015) (holding that failure to provide the calculations leading to denial of a
HAMP modification is not a "covered error" under 12 C.F.R.
1024.35); Wiggins v. Hudson
City Sav. Bank, No. 15-01938 (JKS), 2015 WL 4638452, at *8 (D.N.J. Bankr. Aug. 4, 2015)
(holding that a claim that a borrower disagrees with a loan modification decision is not a "notice
of error" under 12 C.F.R. 1024.35). If a borrower believes that the denial of a loan modification
application is incorrect or that the information provided was insufficient, the remedy is to
"challenge it by invoking the appeals process of
"the error resolution process of
1024.41(h)," just as Nash did, not by pursuing
Wiggins, 2015 WL 4638452, at *8. Thus, Nash
has failed to state a plausible claim that the Appeal Letter was a QWR asserting a "notice of
error" that required PNC to satisfy the specific requirements for responding to that form of
Finally, the Court considers PNC's alternative argument for dismissal of the QWR claim,
that Nash did not mail the Appeal Letter to the address designated by PNC for QWRs.
notes that every page of the Denial Letter provides an address in Dayton, Ohio for a borrower to
send a "written request/notice" to "request information or notify [PNC] of an error regarding
See Compi. Ex. 1. The Appeal Letter, however, reflects that it was sent to the
separate address in Miamisburg, Ohio designated for disputes regarding loan modifications under
the HAMP program.
By regulation, a servicer may "by written notice provided to a borrower, establish an
address that a borrower must use to request information in accordance with the procedures in this
1024.36(b). The notice "shall include a statement that the borrower must
use the established address to request information."
Based on this regulation, courts have
held that where such an address has been designated for the receipt of QWRs, the failure to send
a request for information to that address is fatal to a claim under RESP A. See, e.g., Roth v.
CitiMortgage, Inc., 756 F.3d 178, 181-82 (2d Cir. 2014); Bemeike v. CitiMortgage, Inc., 708
F.3d 1141, 1149 (lOth Cir. 2013). Cf Lupo v. JPMorgan Chase Bank, NA., No. DKC-14-0475,
2015 WL 5714641, at *6 (D. Md. Sept. 28, 2015) (granting summary judgment to the defendant
where the plaintiff failed to establish that the request for information was sent to the address
designated for QWRs).
Unlike in those cases, however, neither the Amended Complaint nor the exhibits establish
that PNC provided notice to Nash that he "must use the established
address to request
The purported notice of a designated QWR address
identified by PNC is the statement in the Denial Letter: "To request information or notify us of
an error regarding your account, please send a written request/notice to: PNC Mortgage, P.O.
Box 8807, Dayton, OH 45401-8807."
Compi. Ex. 1 at 2. This statement did not explicitly
identify this address as the designated address for borrowers to send QWRs within the meaning
of RESP A. It in no way provided notice that a QWR must be sent to this address in order to
qualify as a QWR.
Such notice was particularly necessary where there were other addresses
provided in the Denial Letter.
By contrast, in Roth, the notice of a designated QWR address
PURSUANT TO S 6 OF RESPA, A "QUALIFIED WRITTEN REQUEST"
REGARDING THE SERVICING OF YOUR LOAN MUST BE SENT TO THIS
ADDRESS: CITIMORTGAGE, INC. ATTN: CUSTOMER RESEARCH TEAM,
PO BOX 9442, GAITHERSBURG, MD 20898-9442. A "qualified written
request" is written correspondence, other than notice on a payment coupon or
statement, which includes your name, account number and the reason( s) for the
Roth, 756 F.3d at 182. Because PNC did not provide notice that all QWRs "must" be sent to the
designated address, the failure to send the Appeal Letter to the Dayton, Ohio address does not
disqualify it as a QWR. 12 C.F.R. 1024.36(b).
because the Appeal Letter's request for information about Nash's loan
modification denial did not relate to servicing and otherwise did not constitute a QWR in any
form, the Court will dismiss Nash's RESPA claim arising from the alleged failure properly to
respond to a QWR pursuant to 12 U.S.C.
2605(e), 12 C.F.R.
1024.36, or 12 C.F.R.
PNC further argues that Nash has failed to state a claim because he has not sufficiently
pleaded damages, either actual damages caused by any alleged violation of RESP A or a "pattern
or practice" of noncompliance with RESP A that would warrant statutory damages.
agrees that Nash's claim that PNC sent a single allegedly deficient letter does not establish a
"pattern or practice" of noncompliance.
See Bulmer v. MidFirst Bank, FSA, 59 F. Supp. 3d 271,
279 (D. Mass. 2014) (holding that failure to respond to one QWR does not demonstrate a pattern
or practice of noncompliance); Galante v. Ocwen Loan Servicing, LLC, No. ELH-13-1939, 2014
WL 3616354, at *34 (D. Md. July 18, 2014) (holding that the plaintiffs failed to "identify any
actionable pattern or practice" where the complaint alleged a single instance of noncompliance).
With respect to actual damages, Nash has pled sufficient detail to state a claim under
RESP A. Nash alleges damages of $7,000 consisting of expenses for "yard maintenance, electric
and water bills, and other miscellaneous
repairs" incurred during the time period when the
inadequate explanation of the reason for the denial of his loan modification caused him to
continue to maintain the Property under the false hope that a loan modification could be secured.
Am. Compi. ~~ 26-27. Drawing all reasonable inferences in favor of Nash, as is required at the
this stage of the proceedings, the Court finds that Nash has adequately alleged that PNC's failure
to provide sufficient detail about the reasons for the denial caused him to incur these expenses.
Courts have denied motions to dismiss based on considerably less detailed, more tenuous claims.
See Mellentine v. Ameriquest Mortg. Co., 515 F. App'x 419, 425 (6th Cir. 2014) (finding that
plaintiffs adequately pleaded damages by stating that the defendant's alleged violation of RESP A
caused "damages in an amount not yet ascertained, to be proven at trial"); Bennett v. Bank of
126 F. Supp. 3d 871, 880-81 (E.D. Ky. 2015) (finding that the plaintiffs
adequately alleged damages where the provision of inadequate information "hindered their
ability to evaluate their past and present loss mitigation options based on the actual investor
guidelines"); Colonial Sav., FA v. Gulino, No. CV-09-1635-PHX-GMS,
2010 WL 1996608, at
*7 (D. Ariz. May 19, 2010) (finding that the plaintiffs sufficiently alleged damages stemming
from a violation of RESP A by claiming that the refusal to respond to requests for information
"creates uncertainty as to the validity of the title to their property").
Accordingly, the Court will
not dismiss the Complaint on this basis.
For the foregoing reasons, the Motion to Dismiss is GRANTED IN PART and DENIED
The Motion is DENIED as to Nash's claim under 12 C.F.R. ~ 1024.41(d), as
enforceable through 12 U.S.C. ~ 2605(f), that the Denial Letter provided inadequate information
about the reason for the denial of his HAMP loan modification application.
The Motion is GRANTED as to Nash's claims that PNC violated the requirements for
responding to a QWR under 12 U.S.C. ~ 2605(e), 12 C.F.R. ~ 1024.35, and 12 C.F.R. ~ 1024.36.
A separate Order shall issue.
Date: April 20, 2017
THEODORE D. CH
United States Distric
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