Bivens v. Bank of Am., N.A.

• Decision Date: 17 August 2017
• Docket Number: No. 16-15119,16-15119
• Citation: 868 F.3d 915
• Parties: Steven BIVENS, Plaintiff–Appellant, v. BANK OF AMERICA, N.A., Defendants, Select Portfolio Servicing, Inc., Defendant–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

868 F.3d 915

Steven BIVENS, Plaintiff–Appellant,

v. BANK OF AMERICA, N.A., Defendants,Select Portfolio Servicing, Inc., Defendant–Appellee.

No. 16-15119

United States Court of Appeals, Eleventh Circuit.

August 17, 2017

Wayne Charles, Wayne Charles, PC, Fayetteville, GA, for Plaintiff–Appellant.

Elizabeth Joy Campbell, Alexandra Marie Dishun, Locke Lord, LLP, Atlanta, GA, W. Scott Hastings, Locke Lord, LLP, Dallas, TX, for Defendant–Appellee.

Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges.

JILL PRYOR, Circuit Judge:

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

I. FACTS

In 2006, Bivens borrowed money from Mortgage Lenders Network to purchase a home. After a few years, he stopped paying the mortgage. On December 4, 2012, SPS sent Bivens a letter announcing that Bank of America had assigned it the servicing rights to his mortgage. The letter provided Bivens with three separate addresses to use for correspondence—one for General Correspondence, one for Disputes/Inquiries, and one for Payment Remittance. The otherwise identical addresses had different post office box numbers. SPS's letter explained:

If you wish to send a written request about your account or dispute any of the information on this statement, please do not include it with your monthly payment. All written requests must be sent to the address listed below for Disputes/Inquiries, as this is our exclusive address for processing these matters. If you send your request or dispute to any other address, it may not be processed in accordance with our Customer Service Timelines.

December 4 Letter at 2 (Doc. 89–3 at 69.)¹

Bivens, through his attorney, responded by sending a letter to SPS's General Correspondence address, not its Disputes/Inquiries address. In the letter, Bivens stated, "It is my understanding that [SPS] ... is now going to be the servicer of [my] loan." December 17, 2012 Letter at 1 (Doc. 90–6). He asserted that he "d[id] not believe SPS ha[d] the standing to enforce this obligation" and asked SPS to "fully identify the owner of the loan by name, address and phone number." Id. at 3–4. He also requested from SPS "a certified copy of [his] promissory note in its current condition showing all endorsements and/or any allonge that show that the purported ‘owner’ of the loan maintains legal ‘holder in due course’ status as of today's date." Id. at 4. Bivens designated his letter as a "qualified written request" ("QWR") under RESPA, 12 U.S.C. § 2605(e).

SPS received Bivens's letter at its General Correspondence address and forwarded it to its Disputes/Inquiries department. It sent Bivens two letters in response to his letter. SPS's first letter identified the holder of Bivens's note as Wells Fargo Bank, N.A., as Trustee, in Trust for SASCO 2007–MLN1 Trust Fund. Its second letter informed Bivens that he had mailed his letter to the wrong address, and once again provided him with its Disputes/Inquiries address. SPS did not, however, timely provide Bivens a certified copy of his note in its current condition, as he had requested.

Bivens sued SPS in the district court, alleging that he was entitled to actual and statutory damages based on SPS's failure to provide an appropriate response to his letter, which he claimed qualified as a QWR under RESPA.² SPS moved for summary judgment on the grounds that (1) Bivens's letter was not a QWR because he had not sought information regarding the servicing of his loan; (2) SPS's acknowledgment and response obligations under RESPA were not triggered because Bivens failed to mail his letter to the correct address; and (3) Bivens could not prove actual damages or recover statutory damages. The district court granted SPS summary judgment, determining, among other things, that SPS had no duty to respond because Bivens had mailed his QWR to the wrong address. Bivens timely appealed.

II. STANDARD OF REVIEW

A litigant is entitled to summary judgment if it shows there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). We review summary judgment decisions de novo , drawing all reasonable inferences and reviewing all evidence in the light most favorable to the nonmoving party. Likes v. DHL Express (USA), Inc. , 787 F.3d 1096, 1098 (11th Cir. 2015). "An agency's interpretation of its own regulations is ‘controlling unless plainly erroneous or inconsistent with the regulation.’ " Sierra Club v. Johnson , 436 F.3d 1269, 1274 (11th Cir. 2006) (quoting Auer v. Robbins , 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) ).

III. ANALYSIS

RESPA is a consumer protection statute that imposes a duty on servicers of mortgage loans to acknowledge and respond to inquiries from borrowers. See 12 U.S.C. § 2605(e) ; Freeman v. Quicken Loans , 566 U.S. 624, 132 S.Ct. 2034, 2038, 182 L.Ed.2d 955 (2012). When a borrower submits a QWR—written correspondence that includes the borrower's name and account and sufficient detail about the information sought—the servicer must provide "a written response acknowledging receipt of the correspondence" and take certain other responsive actions within specified time periods. 12 U.S.C. § 2605(e)(1)(A), (e)(1)(B), (e)(2).

RESPA originally authorized the Secretary of the Department of Housing and Urban Development "to prescribe such rules and regulations" and "make such interpretations ... as may be necessary to achieve [the statute's] purposes." 12 U.S.C. § 2617 (repealed 2011). Under this authority, the Secretary promulgated Regulation X, 24 C.F.R. § 3500.21 (repealed 2014), RESPA's primary implementing regulation. See Lage v. Ocwen Loan Servicing LLC , 839 F.3d 1003, 1005 (11th Cir. 2016). Section 3500.21(e)(1), among other things, authorized servicers to "establish a separate and exclusive office and address for the receipt and handling of qualified written requests." 24 C.F.R. § 3500.21(e)(1).³ The final rulemaking notice from the Secretary explained that if a servicer established a designated address for receiving QWRs, "then the borrower must deliver its request to that office in order for the inquiry to be a ‘qualified written request.’ " Real Estate Settlement Procedures Act, Section 6, Transfer of Servicing of Mortgage Loans (Regulation X), 59 Fed. Reg. 65,442, 65,446 (Dec. 19, 1994).

The district court held that because Bivens had not mailed his QWR to the appropriate address, SPS had no duty to respond to it. Bivens argues Regulation X did not apply to his QWR because SPS (1) did not properly designate an exclusive address for receipt of QWRs and (2) processed both QWRs and other types of correspondence at the same office. We conclude, however, that SPS properly designated an exclusive address for receiving QWRs and that the regulation did not require SPS to use that office solely for the purpose of processing QWRs. The district court did not err, then, in granting summary judgment to SPS.

The Secretary's construction of § 3500.21(e)(1) was neither "plainly erroneous [n]or inconsistent with the regulation." Sierra Club , 436 F.3d at 1274 (internal quotation marks omitted). To the contrary, common sense suggests that if a servicer may designate an address for receiving QWRs, it may require borrowers to send QWRs to that address in order to receive a response. We thus accord authoritative weight to the Secretary's construction of § 3500.21(e)(1). If a servicer designates a particular address for receiving QWRs, Regulation X requires a borrower to mail a QWR to that address to trigger the servicer's duty to respond.⁴

Bivens argues that he was not required to deliver his letter to the address for Disputes/Inquiries for it to qualify as a QWR because SPS failed to establish a designated address for receiving QWRs. He contends that SPS designated no such address because it never (1) identified an address for QWRs specifically or (2) established an office solely to process QWRs. We conclude that SPS properly designated an address for receiving QWRs and that its use of that address for additional purposes is of no moment.

First, Bivens argues that SPS failed to designate an address for receiving QWRs because it provided him with an address only for "written requests." SPS's letter to Bivens said, "All written requests must be sent to the address listed below for Disputes/Inquiries, as this is our exclusive address for processing these matters." December 4 Letter (Doc. 88–2 at 82). Bivens contends that § 3500.21 required SPS to use the term "qualified written requests"; designating an address merely for written requests, he says, did not suffice. We disagree.

By directing borrowers to send all written requests to the specified address, SPS necessarily directed them to send "qualified" written requests to that address. Its notice used more accessible language than Regulation X required: borrowers likely would be more familiar with the lay terms "disputes," "inquiries," and "written requests" than with the statutory term of art, "qualified written request." 24 C.F.R. § 3500.21(e)(1). SPS subjected itself to the administrative burden of evaluating and prioritizing a larger quantity of mail to identify QWRs, perhaps so as to minimize...