Mikulski v. Selene Finance et al

Filing 25

ORDER signed by Magistrate Judge William E Duffin on 8/25/17. IT IS THEREFORE ORDERED that Selene Finance and Premium Mortgage Acquisition Trust's motion to dismiss the First Amended Complaint (ECF No. 20 ) is granted with respect to the first and fourth causes of action. As to the second cause of action in the First Amended Complaint, the motion is granted as to Premium Mortgage Acquisition Trust and denied as to Selene Finance. (cc: all counsel) (mlm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SCOTT MIKULSKI,
Plaintiff,
v.

Case No. 17-CV-179

WELLS FARGO BANK, N.A.,
SELENE FINANCE LP, and
PREMIUM MORTGAGE ACQUISITION TRUST.
Defendants.
DECISION AND ORDER
I.

Facts and Procedural History
Plaintiff Scott Mikulski filed the present action against defendants Wells Fargo

Bank, N.A. (Wells Fargo), Selene Finance, LP (Selene), and Premium Mortgage
Acquisition Trust (the Trust), alleging claims under the Real Estate Settlement
Procedures Act (RESPA), state common law, and Wisconsin Statute § 224.77(1), and
seeking injunctive relief. (ECF No. 19.) Defendants Selene and the Trust move for
dismissal of the action under Federal Rule of Civil Procedure 12(b)(6) for failure to state
a claim upon which relief can be granted. (ECF No. 21.) The parties have fully briefed

the motion, which is ready for resolution. All parties have consented to the full
jurisdiction of a magistrate judge. (ECF Nos. 6, 13, 16.)
Wells Fargo commenced a foreclosure action against Mikulski in April of 2011 in
Waukesha County Circuit Court. (ECF No. 19, ¶ 9.) The court entered a judgment of
foreclosure in October of 2011. (ECF No. 19, ¶ 10.) Mikulski subsequently “attempted to
cure any alleged default on his home mortgage by filing for bankruptcy protection;
however, he was unable to cure those defaults.” (ECF No. 19, ¶ 11.)
In spring 2016 Mikulski submitted a loan modification application to Wells Fargo
and Selene, the servicer of the loan. (ECF No. 19, ¶¶ 12-14.) Shortly thereafter Mikulski
received notice that he was denied a loan modification. (ECF No. 19, ¶ 15.) Believing
incorrect information was used in analyzing his eligibility for a loan modification,
Mikulski, by his attorney, sent a letter dated August 4, 2016, to Selene, purporting to
provide Selene with the “correct” information and asking to have his application re-run.
(ECF No. 19, ¶ 19; see also ECF No. 21-4.) Mikulski alleges that Selene never responded
to or investigated this inquiry. (ECF No. 19, ¶¶ 28-29.)
Selene’s alleged failure to respond or investigate Mikulski’s inquiry of August 4,
2016, forms the basis of Count I of Mikulski’s First Amended Complaint. (ECF No. 19.)
Mikulski’s allegations that Wells Fargo and Selene used incorrect information and
improperly analyzed his loan modification application, and that all defendants
improperly acted to sell Mikulski’s home at a sheriff’s sale, form the bases of Counts II,

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III, and IV. (ECF No. 19.) In response to the motion to dismiss, Mikulski concedes that
his third cause of action applies only to Wells Fargo (ECF No. 23 at 9), a defendant who
has not moved for dismissal.
II.

Motion to Dismiss Standard
“To survive a motion to dismiss under Rule 12(b)(6), a complaint must provide

enough factual information to ‘state a claim to relief that is plausible on its face’ and
‘raise a right to relief above the speculative level.’“ Thulin v. Shopko Stores Operating Co.,
771 F.3d 994, 997 (7th Cir. 2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570
(2007)). The court accepts as true all well-pleaded facts and then determines whether the
facts give rise to an entitlement of relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
III.

Analysis
The Home Affordable Mortgage Program (HAMP) emerged as a result of

Congress’s “response to rapidly deteriorating financial market conditions in the late
summer and early fall of 2008.” Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 556 (7th
Cir. 2012). The Secretary of the Treasury created the program to encourage home loan
servicers to modify loans of qualifying homeowners who were in danger of default. Id.
Although HAMP created obligations upon participating loan servicers, it did not create
a private right of action whereby homeowners could sue servicers for violations of
HAMP guidelines. Id. at 559, n.4. Thus, Mikulski does not allege that the defendants’
violation of HAMP guidelines directly gives rise to a cause of action. (ECF No. 23 at 1.)

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Rather, Mikulski asserts that “[d]efendants, by violating HAMP Guidelines, have
violated other state and federal laws.” (ECF No. 23 at 1.)
The moving defendants contend that Mikulski is effectively attempting to bring a
private right of action under HAMP by “reframing” a violation of HAMP guidelines as
various other legal claims. (ECF No. 21 at 6.) But the moving defendants’ argument
represents a rehashing of the “end-run” argument rejected by the court in Wigod. See id.
at 581-86. In Wigod, in addition to making various preemption arguments, Wells Fargo
argued that the plaintiff’s state law claims were an impermissible “end-run” around the
fact that Congress did not create a private cause of action under HAMP. Id. at 576-86.
Referring to this argument as “novel,” the court found it to be without legal support. Id.
at 581. “The absence of a private right of action from a federal statute provides no
reason to dismiss a claim under a state law just because it refers to or incorporates some
element of the federal law.” Wigod, 673 F.3d at 581.
For example, Wisconsin created a private right of action against a mortgage
banker who “[v]iolate[es] any … federal or state statute, rule, or regulation that relates
to practice as a mortgage banker ….” Wis. Stat. § 224.77(1)(k). Although Congress chose
not to create a private right of action for violations of HAMP, Wisconsin seemingly did
essentially just that. Therefore, the court rejects the contention that Mikulski’s claims are
barred on the ground that each represents an impermissible attempt to create a private

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right of action under HAMP. Accordingly, the court finds it necessary to address the
merits of each claim Mikulski raises as to the moving defendants.
A. The RESPA Claim
The First Cause of Action in the First Amended Complaint alleges “Violations of
RESPA, 12 U.S.C. §§ 2605(e)(1) and (2).” Specifically, it alleges that “Selene did not
properly analyze and assess Milulski’s loss mitigation application, in that Selene
(among other problems) used incorrect information to determine Mikulski’s
modification eligibility.” (ECF No. 19, ¶ 26.) It alleges that the August 4, 2016 letter was
a qualified written request (QWR) under RESPA (¶ 27), that Selene’s failure to respond
to the QWR violated 12 U.S.C. § 2605(e)(2) (¶ 30), and that Mikulski suffered damages
“as a result of the denial of a loan modification.” (ECF No. 19, ¶ 31.) The First Amended
Complaint does not allege that the Trust (or Wells Fargo) violated RESPA. Therefore, as
to this claim the only defendant is Selene.
A QWR is “written correspondence (other than notices on a payment coupon or
similar documents) from the borrower or her agent that requests information or states
reasons for the borrower's belief that the account is in error. 12 U.S.C. § 2605(e)(1)(B). To
qualify, the written request must also include the name and account of the borrower or
must enable the servicer to identify them. Id.” Catalan v. GMAC Mortg. Corp., 629 F.3d
676, 680 (7th Cir. 2011).

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The United States Court of Appeals for the Seventh Circuit has held that no
“magic language” is required before a servicer must recognize written correspondence
as a QWR requiring a timely response. Catalan, 629 F.3d at 687. Thus, correspondence
need not contain the phrase “qualified written request.” Baehl v. Bank of Am., N.A., No.
3:12-cv-00029-RLY-WGH, 2013 U.S. Dist. LEXIS 46445, at *10 (S.D. Ind. Mar. 25, 2013)
(citing Vician v. Wells Fargo Home Mortg., No. 2:05-cv-144, 2006 U.S. Dist. LEXIS 26141,
2006 WL 694740, at *4 (N.D. Ind. Mar. 16, 2006)). “Any reasonably stated written request
for account information can be a qualified written request.” Catalan, 629 F.3d at 687.
However, a QWR must relate to servicing of the loan. Although subsection (B) of
12 U.S.C. § 2605(e)(1) does not state that a QWR must relate to the servicing of the loan,
the preceding subsection (imposing an obligation to acknowledge receipt of a QWR)
does. Absent this limitation, accepted by courts across the country, see, e.g., Williams v.
Wells Fargo Bank, N.A., 2010 U.S. Dist. LEXIS 36247, at *7 (N.D. Cal. 2014); see also Moore
v. FDIC, No. 08 C 596, 2009 U.S. Dist. LEXIS 110979, at *9 (N.D. Ill. Nov. 30, 2009) (“To
be deemed a qualified written request, the borrower’s written correspondence must also
request information relating to the ‘servicing’ of the loan. 12 U.S.C. § 2605(e)(1)(A).”),
the definition of a QWR would be so broad so as to lose any meaning. If a QWR was not
limited to inquiries related to the servicing of a mortgage loan, literally any request for
information made to a servicer would be a QWR as long as the borrower included his

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name and account. But loan servicers are not expected to provide every sort of
information upon demand.
If a servicer receives a QWR from a borrower, the servicer must respond. 12
U.S.C. § 2605(e)(1)(A). A “servicer” is “the person responsible for servicing of a loan,”
12 U.S.C. § 2605(i)(2), and “servicing” “means receiving any scheduled periodic
payments from a borrower pursuant to the terms of any loan … and making the
payments of principal and interest and such other payments with respect to the
amounts received from the borrower as may be required pursuant to the terms of the
loan.” 12 U.S.C. § 2605(i)(3). RESPA gives borrowers a cause of action against a servicer
for actual damages suffered as a result of a servicer’s failure to respond to a QWR. 12
U.S.C. § 2605(f)(1)(A).
In moving to dismiss Mikulski’s RESPA claim Selene argues that it did not
violate RESPA because Mikulski’s letter was not a QWR. Specifically, Selene contends
that “the letter does not allege an error with [Mikulski’s] loan account” nor does it seek
information relating to the servicing of Milulski’s loan. (ECF No. 21 at 8.) Instead, the
letter “simply takes issue with Selene’s purported process[ing] of the loan modification
application.” (Id.)
In response, Mikulski contends that his August 4, 2016 letter was a QWR under
RESPA. It “identifies Mr. Mikulski’s account and explains how the account is in error,”

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exactly what § 2605(e)(1)(B)(ii) says a QWR needs. (ECF No. 23 at 7.) He alleges that
Selene violated RESPA by failing to respond.
In reply, Selene argues that, because Mikulski had long been in default under the
loan and had “been converted into a foreclosure judgment” by the time the August 4,
2016 letter was sent, it was no longer servicing Mikulski’s loan in August 2016. (Id. at 34.)
Mikulski refers to the August 4, 2016 letter in his amended complaint. (ECF No.
19, ¶ 27.) Because the letter is a document that is “central to the complaint and …
referred to in it,” in ruling on the motion to dismiss the court may consider the letter,
which the moving defendants submitted along with their motion (see ECF No. 21-4),
without converting the motion to dismiss into one for summary judgment. Williamson v.
Curran, 714 F.3d 432, 436 (7th Cir. 2013) (citing Geinosky v. City of Chicago, 675 F.3d 743,
745 n.1 (7th Cir. 2012)).
Because the letter is short, the court will quote it here in its entirety:
RE:

Appeal from HAMP Denial
Borrower: Scott Mikulski Mortgage Loan # 741868
Property Address 3917 S. Woodhill Court, New Berlin, WI 53151

To Whom It May Concern,
We represent Scott Mikulski in respect to all mortgage and
foreclosure issues. Mr. Mikulski received notice of denial of his HAMP
modification, dated 7/7/16, and we are by this letter appealing from that
denial.

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The denial indicates Mr. Mikulski was denied a HAMP Tier 1 and
HAMP Tier 2 modification based on negative NPV tests. I have enclosed
documentation showing that:
A. Property Value (Item 7) was incorrect. On the NPV test you used
$279,000 as the value. Mr. Mikulski is in a chapter 13 bankruptcy,
and in that bankruptcy, he valued the house at $295,000, Neither
Selene nor the lender objected to this valuation, and so the value is
agreed by each to be $295,000.
B. The unpaid principal balance you used is incorrect. (Item 19).
You used $250,572. The actual amount, per bankruptcy filings by
the lender, is $255,300.
C. The interest rate before modification you used is 2.88%. It should
have been 3.0%.
Please re-run the tests and approve Mr. Mikulski for a modification
under HAMP. Thank you, and if you need further information, please
communicate directly with me.
(ECF No. 21-4.)
District courts within the Seventh Circuit have held that correspondence related
to a loan modification are not QWRs that trigger the servicer’s duty to respond under
RESPA. See Turner v. Nationstar Mortg., LLC, No. 1:15-cv-01363-RLY-DKL, 2017 U.S. Dist.
LEXIS 5975, at *15 (S.D. Ind. Jan. 17, 2017) (“[A] QWR must relate to servicing; thus, a
borrower’s request for loan origination information or for a loan modification does not
qualify.”); Mayer v. EMC Mortg. Corp., No. 2:11-cv-147, 2014 U.S. Dist. LEXIS 55521, at
*14-15 (N.D. Ind. Apr. 22, 2014) (“A servicer’s denial of a permanent loan modification
and any actions related to any loan modification are outside the term ‘servicing’, and
thus cannot be pursued under RESPA.”); Vangsness v. Deutsche Bank Nat'l Tr. Co., No. 12
C 50003, 2012 U.S. Dist. LEXIS 169388, at *13 (N.D. Ill. Nov. 29, 2012) (“The letters ask
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for a loan modification and they ask for a response to the request for a loan
modification. They do not ask for any information or allege any errors in the account.
Plaintiffs do not cite any authority supporting a claim that a request for loan
modification constitutes a qualified written request ….”).
Turner involved multiple alleged QWRs. The one that is relevant to this case was
submitted after the servicer denied the borrower’s request to modify the loan. In it the
borrower “asked [the servicer] to answer questions regarding the proposed monthly
payment, including ‘the amount of the ‘proposed monthly payment’; the interest rate
used to calculate the ‘proposed monthly payment’; [and] the amount used as ‘verified
income’ as that term is used in the Denial Letter.’” Turner, 2017 U.S. Dist. LEXIS 5975, at
*17. The court concluded that, because the servicer had no obligation to provide the
borrower with a loan modification, it had no obligation under RESPA to respond to the
letter. Id. at *18 (citing In re Salvador, 456 B.R. 610, 623 (Bankr. M.D. Ga. 2011) (holding
that RESPA does not obligate servicers to respond to requests for information
pertaining to a failed attempt to modify a loan; such information is “outside the scope
of the term ‘servicing’ as defined in [RESPA's implementing regulations, codified at 24
C.F.R. § 3500.2]”); Saucedo v. Bank of America, N.A., No. 3:11-cv-00813-MO, 2011 U.S.
Dist. LEXIS 138824, 2011 WL 6014008, at *2 (D. Or. Dec. 1, 2011) (“The denial of a loan
modification is not ‘servicing.’”); Williams v. Wells Fargo Bank, N.A., Inc., No. C 10-00399
JF (HRL), 2010 U.S. Dist. LEXIS 36247, 2010 WL 1463521 at *3 (N.D. Cal. April 13, 2010)

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(a request for documents relating to borrowers’ options for loan modification, short
sale, or bankruptcy was not a request for information relating to the servicing of the
loan)).
Mikulski’s letter does not allege that his “account is in error.” See 12 U.S.C.
§ 2605(e)(1)(B). Rather, it alleges there was an error in his loan modification application.
RESPA does not protect borrowers from errors in loan modification applications or
provide borrowers a means for correcting such errors.
Nor did the letter relate to the “servicing” of the loan. By the letter, Mikulski
simply sought to alter the terms of his loan. That is necessarily outside the definition of
“servicing,” which relates to payments according to the terms of the loan. 12 U.S.C.
§ 2605(i)(3).
In substance, the letter was an allegation that the denial of the loan modification
was improper and was a request for reconsideration. But such matters are not within
the scope of a QWR. See Nash v. PNC Bank, N.A., Civil Action No. TDC-16-2910, 2017
U.S. Dist. LEXIS 60697, at *19 (D. Md. Apr. 20, 2017) (citing Sutton v. CitiMortgage, Inc.,
2017 U.S. Dist. LEXIS 4841, *15 (S.D.N.Y. 2017); Farraj v. Seterus, Inc., No. 15-cv-11878,
2015 U.S. Dist. LEXIS 166642, 2015 WL 8608906, at *3-4 (E.D. Mich. Dec. 14, 2015)).
Therefore, the court will grant Selene’s motion to dismiss Mikulski’s claim that Selene
violated RESPA.

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Because this case is before the court pursuant to 28 U.S.C. § 1331 and the court
finds that the lone claim presenting a federal question must be dismissed, the court
must consider whether it is appropriate for the court to continue to exercise
supplemental jurisdiction over the state law claims. See 28 U.S.C. § 1367(c)(3). Because
the parties have not addressed this question, the court finds it inappropriate to decline
to exercise supplemental jurisdiction at this time. Additionally, the court notes that,
although it is not alleged in the complaint, it is plausible that the court also has
jurisdiction under 28 U.S.C. § 1332. Mikulski alleges he is a Wisconsin citizen and
nothing in the complaint suggests that any defendant is a citizen of Wisconsin.
Although the complaint does not allege the amount in controversy, it appears plausible
that it is more than $75,000. If Mikulski intends to proceed in federal court on the basis
of diversity jurisdiction, he must promptly seek to amend his complaint to adequately
allege a basis for such jurisdiction. Barring that, the defendants may ask that the court
decline to exercise supplemental jurisdiction and the court will resolve the matter upon
consideration of the briefs of the parties.
B. Wisconsin Statute 224.77(1)
The Second Cause of Action in the First Amended Complaint purports to assert a
claim for “Violations of Wis. Stats. § 224.77(1).” It alleges that “Selene and Wells Fargo
are mortgage bankers subject to the requirements of Wis. Stat. § 224.” (ECF No. 19,
¶ 33.) It alleges that Selene failed to comply with the standard of professional conduct

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for mortgage bankers set forth in 12 C.F.R. 1024.41 by not using “reasonable diligence in
gathering information for Mikulski’s modification application” and by mishandling the
modification. (ECF No. 19, ¶¶ 34-36.) It further alleges that all three defendants,
including the Trust, “acted to move Mikulski’s house to a sheriff’s sale despite not
having complied with HAMP procedures and federal regulation [sic].” (ECF No. 19,
¶ 37.) As a result, it alleges that Mikulski “has suffered emotional and financial distress,
and damages, as alleged herein, and is thus aggrieved by defendant’s actions.” (ECF
No. 19, ¶ 40.) Therefore, all three defendants are alleged to have violated Wis. Stat.
§ 224.77(1)(i), (k), (l) and (m). (ECF No. 19, ¶ 39.)
Wisconsin law proscribes various actions by “a mortgage banker.” Wis. Stat.
§ 224.77(1). Selene, as a mortgage servicer, falls within the statutory definition of
“mortgage banker.” Wis. Stat. § 224.71(3)(e). Mikulski does not allege that the Trust was
a mortgage banker. Nor does he allege some other way in which the Trust is subject to
the provisions of the statute. (ECF No. 19, ¶ 33 (“Selene and Wells Fargo are mortgage
bankers to subject to the requirements of Wis. Stat. § 224.”).) Therefore, Mikulski has not
adequately alleged a claim against the Trust for any violation of Wis. Stat. § 224.77(1).
Although the statute contains a long list of prohibited conduct, the First
Amended Complaint does not identify which specific provision Selene allegedly
violated. Given Mikulski’s allegation that Selene did something that “is not competent
for a mortgage banker” to do (ECF No. 19, ¶ 38) and references Selene’s purported

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violations of the HAMP procedures and a federal regulation (ECF No. 19, ¶ 37), the
court presumes Mikulski’s claim is based on Wis. Stat. § 224.77(1)(i), which states that a
mortgage banker may not “[d]emonstrate a lack of competency to act as a mortgage
banker, mortgage loan originator, or mortgage broker in a way that safeguards the
interests of the public,” and/or Wis. Stat. § 224.771(1)(k), which prohibits mortgage
bankers from “[v]iolat[ing] any provision of this subchapter, ch. 138, or any federal or
state statute, rule, or regulation that relates to practice as a mortgage banker, mortgage
loan originator, or mortgage broker.”
The moving defendants argue that Mikulski failed to allege that he suffered any
actual concrete injury as required under Wis. Stat. § 224.80(2), which permits suits for
violations of Wis. Stat. § 224.77(1) only by “[a] person who is aggrieved by an act which
is committed by a mortgage banker ….” They argue that any damages suffered by
Mikulski were caused by his default and the subsequent foreclosure, both of which
occurred well before he applied for the loan modification. He had no right to a loan
modification, and as such there is no causal connection between his alleged emotional
and financial distress and the defendants’ conduct related to the loan modification.
(ECF No. 21 at 9-10.)
Mikulski responds that he suffered an actual injury when he lost his home to
foreclosure. He contends that this injury is traceable to the moving defendants because,
but for their missteps in handling his loan modification application, his loan would

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have been modified, he would have resumed making payments, and he would have
retained possession of the home. (ECF No. 23 at 8-9.)
“[A] person is aggrieved pursuant to Wis. Stat. § 224.80(2) only if he or she can
show some injury or damage.” Avudria v. McGlone Mortg. Co., 2011 WI App 95, ¶31, 334
Wis. 2d 480, 802 N.W.2d 524. The causal chain that Mikulski identifies is sufficient to
survive a motion to dismiss. Whether Mikulski can adequately prove this causal
connection is a factual matter not appropriately before the court on a motion to dismiss.
See Wigod, 673 F.3d at 579. But, for present purposes, the court concludes that Mikulski
has alleged an actual injury that is “not conjectural or hypothetical.” See Spokeo, Inc. v.
Robins, 136 S. Ct. 1540, 1548, 194 L.Ed.2d 635, 644 (2016). Therefore, the court finds that
Mikulski’s alleged injures are sufficient to satisfy Article III and to survive the motion to
dismiss.
C. Interference with Contract
The First Amended Complaint’s Fourth Cause of Action is “Interference with
Contract.” (ECF No. 19.) That cause of action alleges that Selene interfered with the
contract that Mikulski had with the “owner/investor of their [sic] loan” “by improperly
analyzing the modification application.” (ECF No. 19, ¶¶ 47-48). Specifically, it alleges
that “Selene did not seek out information it had available and failed to reassess the
application even after the errors were pointed out to it.” (ECF No. 19, ¶ 49.) “Had
Selene properly analyzed the application, Mikulski would have again been able to begin

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making payments on his loan, but he could not do so without a loan modification; thus,
as a result of Selene’s actions it interfered with the Plaintiff’s ability to perform under
the contract and caused damages to the Plaintiff’s [sic] including all damages alleged
herein above.” (ECF No. 19, ¶ 49.) No allegation is made against the Trust.
Selene argues that there can be no cause of action for tortious interference with
contract because the contract that Selene allegedly interfered with was the contract
between Mikulski and the mortgagee which Mikulski had breached years before he
sought a loan modification. (ECF Nos. 21 at 12; 24 at 7-8.). Having already breached the
contract by the time he sought a loan modification, Selene says, Mikulski cannot argue
that the conduct of the moving defendants several years later “caused [Mikulski] to
breach the loan agreement[.]” (ECF No. 24 at 8.)
The First Amended Complaint is explicit that the contract that is the subject of
the tortious interference claim is the contract between Mikulski and the ”owner/investor
of their [sic] loan.” (ECF No. 19, ¶ 47.) However, his argument depends on an obvious
non sequitur. Mikulski asserts that Selene prevented him from performing under the
contract because he could not afford the payments unless he received a modification.
(ECF No. 23 at 10 (Mikulski appears to have omitted the “not” in the relevant sentence
but the court reads it in because the sentence makes no sense without it); see also (ECF
No. 19, ¶ 50 (“Had Selene properly analyzed the application, Mikulski would have
again been able to begin making payments on his loan, but he could not do so without a

16

loan modification ….”)). Performance under a modified contract is necessarily not
performance under an original contract. Thus, Selene’s alleged actions in thwarting
Mikulski’s modification efforts plausibly interfered with the contract that existed
between Mikulski and the mortgagee only if Mikulski had a contractual right to a
modification. Mikulski does not allege he had any such right. Therefore, the court finds
that Mikulski’s fourth cause of action in the First Amended complaint, which the court
reads as being against Selene alone, fails to state a claim upon which relief may be
granted. Therefore, the court will grant Selene’s motion to dismiss as to this claim.
IV.

Conclusion
In the August 4, 2016 letter, Mikulski sought to correct alleged errors in his

mortgage modification application. Mikulski did not allege that his mortgage loan
account was in error. Nor did the letter did not relate to the “servicing” of his loan.
Therefore, the letter was not a QWR and his RESPA claim fails.
The court, however, denies Selene’s motion to dismiss Mikulski’s second cause of
action. Mikulski has sufficiently alleged that he was aggrieved by Selene’s alleged
violation of Wis. Stat. § 224.77(1). And as explained in Wigod, this sort of state law claim
that depends upon HAMP is not foreclosed by the absence of a private right of action
under HAMP.
Selene’s motion to dismiss Mikulski’s fourth cause of action will be granted. As
framed by Mikulski, the claim that Selene prevented him from performing his contract

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with the mortgagee is without merit. Mikulski was not performing under that contract
and admittedly could not do so. Accepting as true Mikulski’s allegations that Selene
thwarted his pursuit of a loan modification, that cannot constitute a tortious
interference with the mortgage contract. Mikulski does not allege that he had a right to
a loan modification under the mortgage contract and a modification is necessarily not
performance under the contract.
Mikulski’s request for injunctive relief is now moot (ECF No. 23 at 10). Therefore,
the court does not consider Selene’s and the Trust’s arguments seeking dismissal of this
request for relief.
Finally, because the request for injunctive relief is now moot, the court will
dismiss the Trust as a defendant in this action. As noted above, the First Amended
Complaint does not allege that the Trust violated RESPA. (ECF No. 19, ¶¶ 24-31.) Nor
does the First Amended Complaint allege that the Trust was a mortgage banker or
otherwise subject to the requirements of Wis. Stat. § 224.77. (ECF No. 19, ¶ 33.)
Therefore, Mikulski has failed to state a claim against the Trust for any violation of Wis.
Stat. § 224.77.
IT IS THEREFORE ORDERED that Selene Finance and Premium Mortgage
Acquisition Trust’s motion to dismiss the First Amended Complaint (ECF No. 20) is
granted with respect to the first and fourth causes of action. As to the second cause of

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action in the First Amended Complaint, the motion is granted as to Premium Mortgage
Acquisition Trust and denied as to Selene Finance.
Dated at Milwaukee, Wisconsin this 25th day of August, 2017.

_________________________
WILLIAM E. DUFFIN
U.S. Magistrate Judge

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