Searle et al v. RBS Citizens Bank N.A. et al
Judge Allison D. Burroughs: MEMORANDUM AND ORDER entered. Accordingly, the motion for leave to file a Second Amended Complaint ECF No. 22 is GRANTED, and the motion to dismiss ECF No. 21 is GRANTED. Plaintiffs motion for a preliminary injunction ECF No. 26 is DENIED. SO ORDERED.(McDonagh, Christina)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ROBERT J. SEARLE and
RBS CITIZENS, N.A., DITECH
GREENTREE FINANCIAL, and HARMON
LAW OFFICES, P.C.,
Civil Action No. 17-cv-10427-ADB
MEMORANDUM AND ORDER ON
MOTION FOR PRELIMINARY INJUNCTION AND MOTION TO DISMISS
Plaintiffs Robert and Susan Searle bring this action against RBS Citizens, N.A.
(“Citizens”) and Ditech Financial LLC, formerly known as Green Tree Servicing LLC
(“Ditech/Green Tree”) (collectively “Defendants”), in an attempt to avert the foreclosure of their
home located at 9 Prospect St., Merrimac, Massachusetts. Plaintiffs claim that Defendants failed
to respond to their requests to produce certain documents related to the mortgage, and thus
violated (1) the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2605(e)(1)(A)
and (B), and Regulation X at 24 C.F.R. § 3500; (2) the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692(a); and (3) the Truth in Lending Act (“TILA”), 15 U.S.C.
§ 1640(a)(1) and (2). [ECF No. 19]. Currently pending are Plaintiffs’ motion for leave to file a
Second Amended Complaint and motion for a preliminary injunction to prevent the foreclosure
of the property, and Defendants’ motion to dismiss. [ECF Nos. 21, 22, 26].
For the reasons stated herein, the motion for leave to file a Second Amended Complaint
and motion to dismiss [ECF Nos. 21, 22] are GRANTED and the motion for a preliminary
injunction [ECF No. 26] is DENIED.
FACTUAL AND PROCEDURAL BACKGROUND 1
On June 10, 2005, Plaintiffs took out a $50,000 home equity line of credit 2 from First
Horizon Home Loan Corporation. [ECF Nos. 26 at 1, 26-1 at 23]. 3 The line of credit served as a
second lien behind their original mortgage. [ECF No. 26-1 at 2]. The agreement that governed
the line of credit stipulated that the initial interest rate would be 6.5%, with a five-year draw
period. After the end of the draw period, the loan would go into a fifteen year repayment period
with a fixed interest rate, during which time the Plaintiffs were to make a monthly payment of
principal plus interest. [ECF No. 26 at 1].
Plaintiffs allege that as the end of the draw period approached, they realized that their
new payment was not going to be affordable. [ECF No. 26 at 1]. By then, Plaintiffs had both lost
their jobs and were struggling financially due to their reduction in income. Id. Because of this,
for the first ten months after the loan converted to a fixed rate loan, they continued to make
“interest only” payments, even though the agreement required them to pay interest plus principal.
Id. Along with each “interest only” payment made over the ten-month period, Plaintiffs sent
The following facts are set forth in the Amended Complaint and Second Amended Complaint.
In considering the merits of a motion to dismiss, the Court must accept all factual allegations in
the complaint as true and draw all reasonable inferences in the plaintiff’s favor. Speleos v. BAC
Home Loans Servicing, L.P., 824 F. Supp. 2d 226, 230 (D. Mass. 2011).
The line of credit agreement and mortgage may be considered at the motion to dismiss stage
because they are publicly recorded, central to Plaintiffs’ claims, and referenced in the complaint.
See Miss. Pub. Emps. Ret. Sys. v. Boston Scientific Corp., 523 F.3d 75, 86 (1st Cir. 2008)
(citing Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993)).
The Court grants the motion to file a second amended complaint, which the Court has
reviewed. See Fed R. Civ. P. 15(a)(2) (“The court should freely give leave when justice so
requires.”). Allowing the motion has no impact on the outcome of this motion to dismiss,
because the proposed Second Amended Complaint does not raise any new claims, but merely
provides greater detail and clarification.
letters to the lender, Citizens, 4 and the servicer at that time, Green Tree, 5 requesting a loan
modification. [ECF Nos. 26-1 at 1–4, 26-2 at 25]. After ten months, the servicer sent a letter to
Plaintiffs stating that it “would no longer accept [the] ‘interest only’ payments and would
foreclose on [Plaintiffs’ property] if [they] did not pay the monthly [p]rincipal and [i]nterest
payment they had requested.” [ECF No. 26-1 at 2]. Plaintiffs were persistent in their efforts to
research and request a loan modification, including making daily inquiries over a period of
several months. Id. at 2–3. Plaintiffs assert that eventually, the servicer advised them that it does
not make loan modifications. [ECF Nos. 26 at 2, 26-2 at 17, 29].
In early 2012, Plaintiffs sought the help of the Massachusetts Attorney General’s Office,
and over the next year, that office assisted Plaintiffs in their efforts to obtain a modification by
coordinating communication with Green Tree. [ECF Nos. 26 at 2, 26-1 at 20–22, 26-2 at 11–13,
16]. After some back and forth, Plaintiffs were able to obtain a modification. [ECF No. 26-1 at
3]. In early April 2012, Green Tree sent Plaintiffs documents to modify the interest rate and
extend the maturity date of the loan by eighteen months (“the Modification Agreement”). [ECF
No. 26 at 3, 26-2 at 2–9 ]. Plaintiffs claim that, when they reviewed the documents, they realized
that the interest rate would actually go up, it was not clear what the monthly payment would be,
and the documents were otherwise “shoddy” and “inconsistent.” [ECF No. 26-1 at 2–5]. Despite
these concerns, however, Plaintiffs signed the Modification Agreement on April 19, 2012. [ECF
No. 21-5 at 3].
On December 27, 2010, the home equity line of credit agreement was assigned from First
Horizon to Citizens. [ECF No. 26-2 at 41]. A copy of the assignment was attached to the
complaint. See Trans-Spec Truck Serv., Inc. v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir. 2008)
(“Exhibits attached to the complaint are properly considered part of the pleading ‘for all
purposes,’ including Rule 12(b)(6)” (quoting Fed. R. Civ. P. 10(c))).
On August 25, 2010, the servicing of the home equity line of credit agreement was transferred
from First Tennessee Bank National Association to Green Tree. [ECF No. 26-2 at 49].
Thereafter, Plaintiffs wrote four letters, which they believed to be “Qualified Written
Requests” under RESPA, from November 9, 2014 to November 4, 2016. [ECF Nos. 26 at 4, 26-2
at 2–9]. Plaintiffs sent copies of each letter to the lender, Citizens, and to the servicer. Id.
Plaintiffs believed that Citizens and Ditech/Green Tree did not have the legal right to collect
payments. In a letter to Green Tree, dated March 28, 2015, Plaintiffs requested, among other
“copies of ALL documents since consummation of the loan to further insure a Validation
of Debt with also a Request for Accounting;”
“an itemized accounting of the ‘Corporate Advances’ that have been accumulating on
each monthly statement and where they derive;”
“any and all reference to ‘insurance’ and costs associated with insurance and/or taxes;”
“validation of who owns the note and . . . a copy of same along with copy of the
assignments from the original note holder to the current note holder.”
[ECF No. 26-2 at 5]. On that same date, Plaintiffs requested similar documents from Citizens. 6
Id. at 3–4. Plaintiffs allege that Defendant “failed to comply on all requests,” though they also
acknowledge that they received replies that contained monthly statements and a “spreadsheet
accounting.” [ECF No. 26 at 4].
The complaint states that Ditech became the servicer of the loan in late 2015. Id. at 8.
The complaint does not describe the relationship between Green Tree and Ditech, or assert that
In addition to what they requested in their letter to Green Tree, Plaintiffs also requested that
Citizens provide documentation validating its authority to collect or service the loan, loan
accounting records, and documentation identifying all other parties’ involvement and interest in
the loan. [ECF No. 26-2 at 3–4].
servicing rights were transferred from Green Tree to Ditech. Defendants clarify that Ditech
previously did business under the name “Green Tree Servicing” [ECF No. 21 at 1–2], which
Plaintiffs do not dispute.
Plaintiffs contend that they have suffered financially and have been kept in “foreclosure
status” for the past seven years. [ECF No. 26 at 9]. They claim that “[c]ontinuing to avoid
compliance with this request for pertinent documents has damaged [them] and continues to keep
them from moving forward in obtaining financing elsewhere due to the ‘Foreclosure Status’ they
are forced to remain in.” Id. at 5. Additionally, Plaintiffs allege that Defendants have
“threaten[ed] to foreclose on the property, and provide[d] foreclosure auction dates that
encourage the public to visit their home to take pictures.” [ECF No. 26-1 at 3]. Furthermore,
Plaintiffs assert that many individuals have approached the house, knocked on the door, and
asked if they can buy the house, which Plaintiffs claim is a violation of their right to quiet
On March 6, 2017, Plaintiffs filed their initial complaint and motion for preliminary
injunction in Essex Superior Court, which requested that the court enjoin Defendants from
conducting a foreclosure sale of the property. [ECF No. 28 at 2–3]. On March 15, 2017,
Defendants removed the case to this Court [ECF No. 1], and on April 5, 2017, they filed a
motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim [ECF No. 9].
On June 23, 2017, with leave of the court, Plaintiffs filed an amended complaint and
motion for preliminary injunction. [ECF No. 19]. On July 1, 2017, Defendants filed a motion to
dismiss the amended complaint. [ECF No. 21]. On August 2, 2017, Plaintiffs moved for leave to
file a second amended complaint. [ECF No. 22]. On August 30, 2017, Plaintiffs filed their
proposed second amended complaint and another motion for a preliminary injunction. [ECF No.
26]. On September 11, 2017, Defendants filed a supplemental opposition to Plaintiffs’ motion for
leave to file a second amended complaint. [ECF No. 28]. Plaintiffs opposed Defendants’ motion
to dismiss the amended complaint. [ECF No. 29].
MOTION TO DISMISS
Standard of Review
On a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6), the Court accepts as true all well-pleaded facts in the complaint and analyzes
those facts “in the light most hospitable to the plaintiff’s theory, and draw[s] all reasonable
inferences for the plaintiff.” United States ex rel. Hutcheson v. Blackstone Med., Inc., 647 F.3d
377, 383 (1st Cir. 2011). Although detailed factual allegations are not required, the complaint
must set forth “more than labels and conclusions” to survive a motion to dismiss. Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007). Furthermore, courts are not bound to accept as true legal
conclusions couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
facts alleged, when taken together, must therefore be sufficient to “state a claim to relief that is
plausible on its face,” A.G. ex rel. Maddox v. Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013)
(quoting Twombly, 550 U.S. at 570), and must “raise a right to relief above the speculative
level,” Twombly, 550 U.S. at 555. A “formulaic recitation of the elements of a cause of action”
is not enough. Id. Dismissal for failure to state a claim is thus appropriate “[i]f the complaint
does not set forth ‘factual allegations, either direct or inferential, respecting each material
element necessary to sustain recovery under some actionable legal theory.’” Lemelson v. U.S.
Bank Nat’l Ass’n, 721 F.3d 18, 21 (1st Cir. 2013) (quoting Hutcheson, 647 F.3d at 384) (further
internal quotations omitted).
When evaluating the sufficiency of a complaint, the Court first “must separate the
complaint’s factual allegations (which must be accepted as true) from its conclusory legal
allegations (which need not be credited).” A.G. ex rel. Maddox, 732 F.3d at 80 (quoting
Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012)). Second, the Court must
determine whether the remaining factual content allows a “reasonable inference that the
defendant is liable for the misconduct alleged.” Id. “Although evaluating the plausibility of a
legal claim requires the reviewing court to draw on its judicial experience and common sense,
the court may not disregard properly pled factual allegations, even if it strikes a savvy judge that
actual proof of those facts is improbable.” Ocasio-Hernandez v. Fortuño-Burset, 640 F.3d 1, 12
(1st Cir. 2011) (internal quotations and citation omitted).
Plaintiffs allege that Defendants committed violations of TILA, 15 U.S.C. § 1640(a)(1)
and (2); RESPA, 12 U.S.C. § 2605(e)(1)(A) and (B); and the FDCPA, 15 U.S.C. § 1692(a),
through their responses, or lack thereof, to Plaintiffs’ requests for a loan modification and
Plaintiffs allege that Defendants violated TILA by failing to provide certain loan
disclosures. TILA’s purpose is to “assure a meaningful disclosure of all credit terms so the
consumer will be able to compare . . . the various credit terms available to him [or her] . . . to
avoid an uninformed use of credit, and to protect the consumer against inaccurate [and/or] unfair
credit billing practices.” 15 U.S.C. § 1601(a). For a home equity line of credit, the creditor must
disclose information including the interest rate, fees, minimum periodic payments, and
repayment options. See 15 U.S.C. § 1637a. TILA imposes liability on creditors who fail to make
the required disclosures, and in limited circumstances, assignees of creditors can also be held
liable. 15 U.S.C. §§ 1640(a), 1641(e); Faiella v. Green Tree Servicing LLC, No. 16-cv-088-JD,
2017 WL 589096, at *3 (D.N.H. Feb. 14, 2017) (assignee liable if violation is apparent on face
of disclosure statement), appeal docketed, No, 18-1063 (1st Cir. Jan. 24, 2018). The statute “uses
the term ‘the disclosure statement’ to refer to [the disclosure] documents provided before the
extension of credit.” Id. (emphasis added) (citing Evanto v. Fed. Nat. Mortg. Ass’n, 814 F.3d
1295, 1298 (11th Cir. 2016)); see also Signori v. Fed. Nat. Mortg. Ass’n, 934 F. Supp. 2d 1364,
1368 (S.D. Fla. 2013) (“[T]he TILA provisions are clear that the disclosure documents referred
to in Section. . . 1641(e)(1) are documents generated in connection with the origination of the
Plaintiffs assert that, during the modification process, the servicer failed to satisfy its
disclosure obligations under TILA because it did not include the “mandatory disclosures” with
the terms of the modification, and did not clarify amounts, costs, or monthly payments due. [ECF
No. 26 at 2–3]. Plaintiffs also complain that the Modification Agreement incorrectly stated that
the interest rate would be lowered, when in fact, it was raised from 3.25% to 4%. [ECF No. 26 at
3]. Defendants argue that TILA did not require them to provide additional disclosure statements
years after the 2005 home equity line of credit was taken out. While this may be a valid
argument, it appears to miss the point. The Court interprets the TILA allegations in the complaint
to relate to the 2012 modification, not the original 2005 line of credit. Specifically, Plaintiffs
claim that TILA required Defendants to disclose the monthly amount that would be due under
the 2012 Modification Agreement, and also other “amounts” and “costs,” before the parties
entered into the Modification Agreement, which Defendants did not do.
TILA does not necessarily treat a modification as a new transaction that triggers renewed
disclosure requirements. While the statute does not specifically address whether the modification
of a home equity line of credit triggers additional disclosure requirements, it does allow a
creditor to modify a term of a home equity line of credit if the “consumer specifically agrees to it
in writing at that time,” 12 C.F.R. § 226.5b(f)(3)(iii); this provision makes no mention of any
additional disclosure requirements. TILA also specifically addresses mortgage modifications in a
separate provision, but even if that provision were applicable here, the result would be the same.
Courts have interpreted TILA not to impose new disclosure requirements for mortgage
modifications as long as the modification supplements or modifies the terms of the original loan,
as opposed to being a complete refinancing with all new terms. See Drake v. Ocwen Fin. Corp.,
No. 09-C-6114, 2010 WL 1910337, at *7–9 (N.D. Ill. May 6, 2010) (where modification
agreement does not completely replace prior mortgage, consumer is not entitled to new TILA
disclosures for that transaction); In re Sheppard, 299 B.R. 753, 761–64 (Bankr. E.D. Pa. 2003)
(same, citing cases); In re Hart, 246 B.R. 709, 738 (Bankr. D. Mass. 2000) (mortgage
modification was not a refinancing and thus did not trigger renewed TILA disclosure
obligations). Here, the Modification Agreement clearly supplements the terms of the existing
home equity line of credit, rather than replacing the original agreement. [ECF No. 21-5 at 2] (“all
other terms and conditions of the original Note . . . shall remain in full force and effect”). Thus,
because TILA allows the modification of the terms of a home equity line of credit without
mandating additional disclosures, and because a creditor is not required to make additional
disclosures where a mortgage is modified, Defendants were not obligated to make additional
disclosures at the time that the home equity line of credit was modified. Accordingly, Plaintiffs
have failed to state a claim for a violation of TILA. 7
A separate provision of TILA requires a creditor to correct billing errors, and sets forth a
procedure for the obligor to notify the creditor of such errors. 15 U.S.C. § 1666. Plaintiffs do not
In addition, Ditech/Green Tree cannot be held liable for any disclosure violations under
TILA, because TILA imposes disclosure requirements only on the creditor, not the servicer. 15
U.S.C. § 1641; see also Iroanyah v. Bank of Am., 753 F.3d 686, 688, n.2 (7th Cir. 2014)
(explaining that servicer of loan “cannot be liable for damages under TILA”).
RESPA requires loan servicers to respond to a “Qualified Written Request” (“QWR”). 12
U.S.C. § 2605(e)(1)(A). A QWR is a written request that identifies the name and the account of
the borrower and describes the “reasons for the belief” that “the account is in error” or “provides
sufficient detail to the servicer regarding other information sought by the borrower.” 12 U.S.C. §
2605(e)(1)(B). The information sought through a QWR must relate to the servicing of a loan. 12
U.S.C. § 2605(e)(1)(A). “Servicing” of a loan includes “receiving any scheduled periodic
payments from a borrower” or “the making of . . . payments of principal and interest and such
other payments with respect to the amounts received from the borrower . . . .” 12 U.S.C. §
2605(i)(3). The definition of “‘[s]ervicing’ . . . does not include the transactions and
circumstances surrounding a loan’s origination—facts that would be relevant to a challenge to
the validity of an underlying debt or the terms of a loan agreement.” Medrano v. Flagstar Bank,
FSB, 704 F.3d 661, 666–67 (9th Cir. 2012). The requirement that the QWR “must request
information relating to servicing . . . ensures that the statutory duty to respond does not arise with
respect to all inquiries or complaints from borrowers to servicers.” Id. at 666.
invoke this provision, nor do they allege that they followed the required procedure for notifying
the creditor of errors. Another section of TILA requires a creditor, assignee, or servicer to send
the obligor a statement each billing cycle. 15 U.S.C. § 1638(f). Plaintiffs do not seem to claim
that they did not receive statements; at one point, they state that they were “consistently”
provided information about balances due. Rather, Plaintiffs’ allegation appears to be that the
information contained in the statements was incorrect.
Here, Plaintiffs allege that they sent QWRs to both the servicer, Ditech/Green Tree, and
the assigned lender, Citizens. [ECF Nos. 26 at 4, 26-2 at 3–5, 7–9]. Since Citizens was not the
servicer, it had no duty to respond. See, e.g., McAndrew v. Deutsche Bank Nat’l Trust Co., 977
F. Supp. 2d 440, 445–46 (M.D. Pa. 2013) (dismissing RESPA claim against owner of loan for
failure to respond to QWR because it was not the servicer); Ford v. Saxon Mortg. Servs., Inc.,
No. CV-10-RRA-989-M, 2012 WL 2862035 (N.D. Ala. June 14, 2012) (dismissing RESPA
claim against non-servicer defendants, including owner of loan); Beacham v. Bank of Am., N.A.,
No. 3:12-CV-0801-G (BF), 2012 WL 236219, at *2 (N.D. Ala. May 25, 2012) (dismissing
RESPA claim against owner of loan), report and recommendation adopted, 2012 WL 2862036
(N.D. Ala. July 9, 2012). 8
Plaintiffs filed a copy of a QWR that they sent to Green Tree and a QWR they sent to
Citizens, both dated March 28, 2015. [ECF No. 26-2 at 3–5, 9]. 9 Although Plaintiffs allege in
their complaint that they sent QWRs “on more than four occasions over a four year period” [ECF
No. 26 at 4], the dates the other QWRs were sent are not specified, nor have copies of the other
letters been provided to the Court. In the QWRs that Plaintiffs did provide, they primarily
requested documentation regarding the ownership of the note and any assignments that had been
made, as well as demanding that the lender and servicer prove that they had legal authority to
collect payments. [ECF No. 26-2 at 3–5, 9]. Plaintiffs also requested “copies of ALL documents
related to the loan from the time of its creation, through to the present day,” including the
Plaintiffs have not alleged that Citizens is vicariously liable for any RESPA violation
committed by Ditech/Green Tree. The First Circuit has not addressed the issue of vicarious
liability under RESPA, and other courts are split. Bowen v. Ditech Fin. LLC, No. 2:16-CV00195-JAW, 2017 WL 4158601, at *15 (D. Me. Sept. 19, 2017). A New Hampshire court has
determined that vicarious liability does not exist under RESPA. Id. (citing Rouleau v. U.S. Bank
N.A., No. 14-cv-568-JL, 2015 WL 1757104 (D.N.H. Apr. 17, 2015)).
Plaintiffs provided two copies of the letter addressed to Green Tree; these appear to be
duplicate copies of the same letter. [ECF No. 26-2 at 5, 9].
original note and “the accounting records of the loan in its entirety,” and asked for specific
information about what Plaintiffs refer to as “Corporate Advances” and “all references to
‘insurance’ and costs associated with insurance and/or taxes.” Id. The complaint alleges that
Defendants “failed to comply on all requests” made in the QWRs, but in the next sentence,
Plaintiffs state that “[s]ome replies provided copies of monthly statements, some provided a
spreadsheet accounting with amounts that made no sense and made no provisions for the
assessed debited amounts.” [ECF No. 26 at 4]. The Court interprets these statements to mean that
Defendants did respond to the QWRs, but that Plaintiffs considered the responses to be
insufficient. Plaintiffs have not stated when they received the responses, nor have they provided
sufficient detail as to the content of the responses or why they were lacking.
First, because the complaint is unclear as to whether Defendants responded to all or only
some of Plaintiffs’ letters and does not adequately explain how any responses were deficient
under RESPA, Plaintiffs have not stated a claim for a RESPA violation. See Gutierrez v. PNC
Mortgage, No. 10-cv-01770, 2012 WL 1033063, at *8 (S.D. Cal. Mar. 26, 2012) (“Without
alleging more, the simple assertion that Defendants failed to comply with the statute is not
enough.”); Mantz v. Wells Fargo Bank, N.A., No. 09-12010-JTL, 2011 WL 196915, at *4 (D.
Mass. Jan. 19, 2011) (to state claim under RESPA, plaintiff must explain, inter alia, “how the
defendant failed to respond to the request”); Delino v. Platinum Cmty. Bank, 628 F. Supp. 2d
1226, 1232 (S.D. Cal. 2009) (mere allegation that defendants “fail[ed] to respond to Plaintiff’s
QWR” insufficient to state a claim under RESPA).
Next, most of the information sought by Plaintiffs through their purported QWRs is not
documentation covered by the statute. 10 The information sought through a QWR must relate to
The Court notes that Plaintiffs’ letters contained a broad request for “all” loan documentation,
including “the accounting records of the loan in its entirety,” which ostensibly included
the servicing of a loan. 12 U.S.C. § 2605(e)(1)(A). Information concerning the ownership of the
loan, the original promissory note, or any assignments of the mortgage does not relate to the
servicing of the loan. See e.g., Poindexter v. Mercedes-Benz Credit Corp., 792 F.3d 406, 413
(4th Cir. 2015) (explaining that statutory definition of “servicing” “does not include the
transactions and circumstances surrounding a loan’s origination” (quoting Medrano, 704 F.3d at
666–67); Helman v. Udren Law Offices, P.C., 85 F. Supp. 3d 1319, 1331 (S.D. Fla. 2014)
(letters that requested copies of documents and proof of transfer of the loan but did not pertain to
servicing or explain why the loan was in error did not constitute a QWR); Ward v. Sec. Atl.
Mortg. Elec. Registration Sys., Inc., 858 F. Supp. 2d 561, 574 (E.D.N.C. 2012) (letter seeking,
inter alia, copies of loan documents, promissory note, and loan transactional history was not a
QWR); Junod v. Dream House Mortg. Co., No. CV 11-7035-ODW VBKX, 2012 WL 94355, at
*3–4 (C.D. Cal. Jan. 5, 2012) (letter requesting, inter alia, copy of promissory note, loan
transactional history, MERS Milestone Reports, and information concerning holder of note were
“not the type of information RESPA contemplates” and therefore, did not constitute a QWR). 11
Moreover, to the extent that Plaintiffs seek to challenge the validity of the loan or to dispute its
terms, a QWR is not the appropriate mechanism to do so and correspondence in that vein does
not qualify as a QWR. See Medrano, 704 F.3d at 667 (holding that “letters challenging only a
documents relating to servicing, such as monthly statements. At the same time, Plaintiffs
acknowledged that they received copies of statements and an accounting of the loan. [ECF No.
26 at 4]. Thus, on the current record, the Court cannot conclude that Plaintiffs have stated a claim
that Ditech/Green Tree violated RESPA by failing to disclose this type of information.
RESPA does require a servicer to respond “to a request from a borrower to provide the
identity, address, and other relevant contact information about the owner or assignee of the
loan.” 12 U.S.C. § 2605(k)(1)(D). Here, however, Plaintiffs do not allege that they requested
contact information for Citizens, the owner of the loan, and in fact, it appears that they were in
possession of that information and used it to send letters to Citizens. Instead, Plaintiffs requested
a copy of the original note, information about prior assignments of the note, and “validation” of
the debt, which is outside the scope of section 2605(k)(1)(D).
loan’s validity or its terms are not qualified written requests that give rise to a duty to respond
under” the relevant provision of RESPA); Perron ex rel. Jackson v. J.P. Morgan Chase Bank,
N.A., 845 F.3d 852, 857 (7th Cir. 2017) (explaining that a QWR cannot “be used to collect
information about, or allege an error in, the underlying mortgage loan” (citing Medrano, 704
F.3d at 667–67)). 12 To the extent that Plaintiffs’ letters focused on obtaining information
concerning the validity of the note, assignments, and the right to collect on the debt, the letters
did not satisfy the statutory criteria for QWRs, and Ditech/Green Tree therefore had no
obligation under RESPA to respond.
Further, even if Plaintiffs could demonstrate that the servicer failed to respond to a valid
QWR, they must also demonstrate that they “incurred actual damages as a consequence of the
servicer’s failure.” Foregger v. Residential Credit Sols., Inc., No. 12-11914-FDS, 2013 WL
6388665, at *4 (D. Mass. Dec. 5, 2013). “In order to plead ‘actual damages’ sufficiently, a
plaintiff must allege specific damages and identify how the purported RESPA violations caused
those damages.” Id. Plaintiffs state that damages would be “hard to measure,” but that is not
enough to plead damages resulting from a RESPA violation. See, e.g., Saade v. Pennymac Loan
Servs., LLC, No. 15-12275-IT, 2016 WL 4582083, at *8–9 (D. Mass. Aug. 31, 2016) (plaintiff
failed to state claim under RESPA because “damages [were] not properly alleged”). When
Plaintiffs “[allege] a breach of RESPA duties alone without alleging actual damages and the
proximate cause of the breach of duty to those damages, [they] fail to state a RESPA claim.”
Hutchinson v. Del. Sav. Bank, FSB, 410 F. Supp. 2d 374, 383 (D.N.J. 2006) (citing 12 U.S.C. §
Similarly, RESPA does not require the servicer to respond to any loan modification request
contained in a purported QWR. See, e.g., Mbakpuo v. Civil Wells Fargo Bank, N.A., No. RWT13-2213, 2015 WL 4485504, at *8 (D. Md. July 21, 2015) (letter disputing denial of request for
modification did not relate to servicing of loan as defined by RESPA); Van Egmond v. Wells
Fargo Home Mortg., No. SACV 12-0112 DOC, 2012 WL 1033281, at *4 (C.D. Cal. Mar. 21,
2605(f)(1)(A)). Because Plaintiffs have not provided a sufficiently detailed explanation
concerning their damages or how the damages they claim to have suffered were connected to the
alleged RESPA violations, they have failed to state a claim under RESPA.
The FDCPA was enacted to protect consumers from abusive debt collection practices. 15
U.S.C. § 1692(e). “The statute creates a private cause of action against ‘any debt collector.’”
Dean v. Compass Receivables Mgmt. Corp., 148 F. Supp. 2d 116, 118 (D. Mass. 2001) (quoting
15 U.S.C. § 1692k). To bring a claim against a particular defendant, that defendant must be a
“debt collector,” and the communication at issue must have been made “in connection with the
collection of any debt.” Stagikas v. Saxon Mortg. Servs., Inc., 795 F. Supp. 2d 129, 138 (D.
Mass. 2011); see also 15 U.S.C. §§ 1692a(6), 1692c(a)–(b). Therefore, a viable claim for
violation of the FDCPA requires that a plaintiff establish: “(1) that [the plaintiff] was the object
of collection activity arising from consumer debt, (2) [that] defendants are debt collectors as
defined by the FDCPA, and (3) [that] defendants engaged in an act or omission prohibited by the
FDCPA.” O’Connor v. Nantucket Bank, 992 F. Supp. 2d 24, 30–31 (D. Mass. 2014) (internal
quotations and citations omitted).
Here, Plaintiffs have not established that Ditech/Green Tree is a “debt collector” as
defined by the FDCPA. Under the FDCPA, for an entity to qualify as a “debt collector,” the debt
at issue must have been in default at the time it was obtained by that entity. 15 U.S.C. § 1692a
(6)(F)(iii). A failure to plead that the debt was in default at the time the defendant began
servicing the loan is fatal to the claim. See, e.g., Crepeau, 2011 WL 6937508, at *5 (dismissing
claim under FDCPA where plaintiff failed to allege that loan was in default when defendant
began servicing it); Fogle v. Wilmington Fin., No. 08-cv-388-JD, 2011 WL 90229, at *2 (D.
N.H. Jan. 11, 2011) (same). 13
Here, Plaintiffs have not pleaded that the loan was in default at the time that servicing
rights were transferred to Ditech/Green Tree, and the complaint does not provide sufficient detail
to allow the Court to infer that the loan was in default when it was transferred. A letter attached
to the complaint indicates that servicing rights were transferred to Green Tree on August 25,
2010. [ECF No. 26-2 at 49]. Plaintiffs allege that once the loan’s initial “draw period” was over
and they were required to begin making payments toward principal and interest, they nonetheless
sent only partial, “interest only” payments. [ECF No. 26-1 at 1]. They state that this occurred in
the “fifth year” of the home equity loan, which originated in June 2005, but they do not identify
any specific or approximate dates as to when the draw period ended or when they began making
the partial payments. Id.; [ECF No. 26 at 1]. Attached to the complaint, however, is a letter from
Plaintiffs to the Massachusetts Attorney General stating that “the note became due as a principal
and interest payment” in November 2010. [ECF No. 26-1 at 11]. Thus, based on the allegations
and information provided by Plaintiffs, it appears that the earliest date that the loan could have
been in default was November 2010, which was three months after servicing rights were
transferred to Ditech/Green Tree. Accordingly, Plaintiffs have not alleged that Ditech/Green
Tree was a “debt collector” as defined by the FDCPA.
Furthermore, even if Ditech/Green Tree did meet the definition of a debt collector,
“The FDCPA does not provide a definition of default.” Skerry v. Mass. Higher Educ.
Assistance Corp., 73 F. Supp. 2d 47, 51 (D. Mass. 1999). The fact that a debtor has fallen behind
on payments does not necessarily mean that the loan is in default. Alibrandi v. Fin. Outsourcing
Servs., Inc., 333 F.3d 82, 86 (2d Cir. 2003). To determine whether a debt is in default, courts
“look to any underlying contracts . . . governing the debt at issue.” Dionne v. Fed. Nat’l Mortg.
Ass’n, No. 15-cv-56-LM, 2016 WL 6892465, at *11 (D.N.H. Nov. 21, 2016) (quoting De Dios
v. Int’l Realty & Invs., 641 F.3d 1071, 1074 (9th Cir. 2011)). In this case, the home equity loan
agreement states that Plaintiffs “will be in default if . . . any payment required by the Agreement
or this Mortgage is not made when it is due.” [ECF No. 21-2 at 6].
Plaintiffs have still failed to state a claim for a FDCPA violation. The FDCPA prohibits the use
of “any false, deceptive or misleading representation” in connection with the collection of a debt.
15 U.S.C. § 1692(e)(10). Courts evaluate whether a collection practice violates the FDCPA
based on whether an objective, “least sophisticated debtor” would find the practice threatening or
misleading. See Martin v. Sands, 62 F. Supp. 2d 196, 199 (D. Mass. 1999). This standard is
considered to be “low.” In re Hart, 246 B.R. 709, 730 (Bankr. D. Mass. 2000) (quoting Avila v.
Rubin, 84 F.3d 222, 226 (7th Cir. 1996)). In this case, Plaintiffs have not identified or described
which particular statement they believe to be “false, deceptive, or misleading,” nor have they
provided a copy of any documents they contend include misleading information. Instead,
Plaintiffs allege generally that Defendants “misrepresent[ed] the amount” owed, “or” that
Defendants “inflat[ed] the amount” and did “not provid[e] a proper accounting,” which thus
“held the Plaintiffs to an inflated debt.” [ECF No. 26 at 7–8]. Without more detail, this allegation
is not sufficient to indicate that Defendants violated the FDCPA, nor does it provide Defendants
with sufficient notice to defend against the claim. Cf. Dolan v. Schreiber & Assocs., P.C., No.
01-10177-MLW, 2002 U.S. Dist. LEXIS 6005, at *11–13 (D. Mass. Mar. 29, 2002) (plaintiffs
stated FDCPA claim where complaint identified sentence in letter alleged to be false and
misleading). Accordingly, Plaintiffs have failed to state a claim for a FDCPA violation, and the
claim must be dismissed.
Lastly, although it is unclear whether Plaintiffs intended to bring their FDCPA claim
against Citizens, any such claim would also be dismissed. The FDCPA applies only to a “debt
collector,” not the creditor. See 15 U.S.C. § 1692 et seq.; Moss v. Ditech Fin., LLC, No. PWG15-2065, 2016 WL 4077719, at *4 (D. Md. Aug. 1, 2016) (owner of loan was a “creditor” not a
“debt collector” under the FDCPA where it acquired the loan for its own account instead of on
the behalf of others). Citizens, the current holder of the note and mortgage, retained
Ditech/Green Tree to collect the debt on its behalf. [ECF No. 21 at 14]. Because Citizens is not
itself attempting to collect a debt owed to another, Plaintiffs may not bring a FDCPA claim
MOTION FOR PRELIMINARY INJUNCTION
Plaintiffs included a request for a preliminary injunction in their Second Amended
Complaint. [ECF No. 26]. To evaluate whether Plaintiffs are entitled to a preliminary injunction,
the Court must analyze four factors: “(1) the likelihood of success on the merits; (2) the potential
for irreparable harm [to the movant] if the injunction is denied; (3) the balance of relevant
impositions, i.e., the hardship to the nonmovant if enjoined as contrasted with the hardship to the
movant if no injunction issues; and (4) the effect (if any) of the court’s ruling on the public
interest.” Esso Standard Oil Co. (Puerto Rico) v. Monroig-Zayas, 445 F.3d 13, 18 (1st Cir. 2006)
(internal quotation marks omitted). “The party seeking the preliminary injunction bears the
burden of establishing that these four factors weigh in its favor.” Id. “The sine qua non of this
four-part inquiry is likelihood of success on the merits: if the moving party cannot demonstrate
that he [or she] is likely to succeed in his [or her] quest, the remaining factors become matters of
idle curiosity.” Id. (internal quotation marks and citation omitted). Here, Plaintiffs have not
shown that they are likely to succeed on the merits of their claim, for the reasons discussed
supra. Therefore, they are not entitled to a preliminary injunction.
To the extent that Plaintiffs attempt to bring a claim for the breach of quiet enjoyment, that
claim fails. The covenant of quiet enjoyment concerns a duty that a landlord owes to a tenant of a
rental property. See, e.g., Simon v. Solomon, 431 N.E.2d 556, 564–65 (Mass. 1982). The
concept is not applicable here.
Accordingly, the motion for leave to file a Second Amended Complaint [ECF No. 22] is
GRANTED, and the motion to dismiss [ECF No. 21] is GRANTED. Plaintiffs’ motion for a
preliminary injunction [ECF No. 26] is DENIED.
March 7, 2018
/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
U.S. DISTRICT JUDGE
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