Bracco v. Mortgage, Case No. 8:16-cv-1640-T-33TBM

• Decision Date: 29 August 2016
• Docket Number: Case No. 8:16-cv-1640-T-33TBM
• Parties: XAVIER A. BRACCO, Plaintiff, v. PNC MORTGAGE, Defendant.
• Court: U.S. District Court — Middle District of Florida

XAVIER A. BRACCO, Plaintiff, v. PNC MORTGAGE, Defendant.

Case No. 8:16-cv-1640-T-33TBM

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

August 29, 2016

ORDER

This matter comes before the Court in consideration of Defendant PNC Mortgage's Motion to Dismiss Plaintiff's Amended Complaint (Doc. # 15), filed on July 7, 2016. Plaintiff Xavier A. Bracco filed a response in opposition on July 22, 2016. (Doc. # 20). The Motion is ripe for review and, for the reasons stated below, the Court grants the Motion.

I. Background

This action arises from an alleged violation of the Real Estate Settlement Procedures Act, 12 U.S.C. §§ 2601, et seq. (RESPA) and its implementing regulation, Regulation X. Specifically, Bracco alleges that PNC Mortgage violated § 2605(k) of RESPA and § 1024.36 of Regulation X by failing to timely acknowledge receipt of Bracco's request for information (RFI). Regulation X dictates that "[w]ithin five days (excluding legal public holidays, Saturdays, and Sundays) of a servicer receiving an information request from a borrower, the servicer shall provide to the borrower a written response acknowledging receipt of the information request." 12 C.F.R. § 1024.36(c).

According to the Amended Complaint, Bracco, through his counsel, Korte and Wortman, P.A., mailed to PNC Mortgage a written RFI pursuant to Regulation X. (Doc. # 2-1). Bracco attaches a USPS Product & Tracking Information page and a certified mail receipt, which Bracco alleges "confirm[s] the date the written request was received." (Doc. # 2 at ¶ 15). The RFI was delivered to PNC Mortgage on October 26, 2015, making the response acknowledging receipt due November 2, 2015. (Id.). Bracco alleges that he did not receive a written acknowledgment within the statutory deadline. (Id. at 16). Subsequently, through Korte and Wortman, P.A., Bracco sent PNC Mortgage a follow up Notice of Error (NOE) letter. (Id. at ¶ 16).

Bracco's damages are based on PNC Mortgage's failure to comply with Regulation X. Specifically, Bracco alleges he incurred damages of "less than $100.00 for mailing the NOE" and "attorney's fees and costs" because PNC Mortgage did notsend the written acknowledgment of the RFI during the five business days. (Id. at ¶ 27).

PNC Mortgage's Motion provides a more detailed description of the parties' interaction. On January 31, 2013, a Foreclosure Action was filed against Bracco's property, which resulted in the issuance of a Final Judgment of Foreclosure in favor of PNC Mortgage on March 10, 2015. (Doc. # 15 at 3-4). A short sale followed, leading PNC Mortgage to record a Satisfaction of Mortgage on April 30, 2015. (Id. at 4). Six months later, on October 26, 2015, PNC received Bracco's purported RFI. (Id.). PNC Mortgage asserts that it acknowledged Bracco's RFI on November 3, 2015, and substantively responded to the RFI on December 9, 2015. (Id.). On April 11, 2016, four months after PNC Mortgage provided a substantive response to Bracco's RFI, Bracco's counsel mailed the NOE. (Id.).

On May 10, 2016, Bracco filed a Complaint in County Court for the Sixth Judicial Circuit, in and for Pinellas County, Florida, which was amended on June 3, 2016. (Doc. # 2). PNC Mortgage timely removed the action to this Court, which has federal question jurisdiction pursuant to 28 U.S.C. § 1331. (Doc. # 1). Thereafter, PNC Mortgage filed its Motion to Dismiss Plaintiff's Amended Complaint with prejudice pursuantto Federal Rule of Civil P. 12(b)(6) on July 7, 2016. (Doc. # 15). Bracco responded to the Motion on July 22, 2016. (Doc. # 20). On August 3, 2016, PNC Mortgage filed a Notice of Supplemental Authority regarding its Motion. (Doc. # 21). The Motion is ripe for adjudication.

II. Legal Standard

On a motion to dismiss, this Court accepts as true all the allegations in the complaint and construes them in the light most favorable to the plaintiff. Jackson v. Bellsouth Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). Further, this Court favors the plaintiff with all reasonable inferences from the allegations in the complaint. Stephens v. Dep't of Health & Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990) (stating "[o]n a motion to dismiss, the facts stated in [the] complaint and all reasonable inferences therefrom are taken as true"). However:

[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.

Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). Courts are not "bound to accept as truea legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986).

Furthermore, "[t]he scope of review must be limited to the four corners of the complaint." St. George v. Pinellas Cty., 285 F.3d 1334, 1337 (11th Cir. 2002). A "court may consider a document attached to a motion to dismiss without converting the motion into one for summary judgment if the attached document is (1) central to the plaintiff's claim and (2) undisputed. In this context, 'undisputed' means that the authenticity of the document is not challenged." Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005)(internal citation omitted).

III. Analysis

Enacted as a consumer protection statute, RESPA provides a mechanism for regulating the real estate settlement process, placing requirements on entities or persons responsible for servicing federally related mortgage loans. McLean v. GMAC Mortg. Corp., 398 F. App'x 467, 471 (11th Cir. 2010)(per curiam). RESPA is to be construed liberally to best serve Congress's intent. Id. To state a RESPA claim for failure to respond to a qualified written request (QWR), a plaintiff must allege: "(1) defendant is a loan servicer under the statute; (2) defendant received a QWR from plaintiff; (3)the QWR relates to servicing of [a] mortgage loan; (4) defendant failed to respond adequately; and (5) plaintiff is entitled to actual or statutory damages." Porciello v. Bank of Am., N.A., No. 8:14-cv-1511-T-17AEP, 2015 WL 899942, at *3 (M.D. Fla. Mar. 3, 2015); see also Correa v. BAC Home Loans Servicing LP, No. 6:11-cv-1197-ORL-22, 2012 WL 1176701, at *6 (M.D. Fla. Apr. 9, 2012).

Only the first element is undisputed. Because the Court finds that Bracco has failed to plead that the RFI is a qualified written request related to the servicing of a mortgage loan, discussion of the fourth and fifth elements is unnecessary.

A. Qualified Written Request

For the purposes of Regulation X § 1024.36, a "qualified written request (QWR) that requests information relating to the servicing of the mortgage loan is a request for information." 12 C.F.R. § 1024.36(a); see also Hudgins v. Seterus, Inc., No. 16-cv-80338-BLOOM/Valle, 2016 WL 3636859, at *3 (S.D. Fla. June 29, 2016)("An RFI can qualify as a QWR.").

RESPA provides definitions for the terms "qualified written request" and "servicing." A "qualified written request" is

a written correspondence, other than notice on a payment coupon or other payment medium supplied by the servicer, that—

(i) includes, or otherwise enables the servicer to identify, the name and account of the borrower; and

(ii) 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.

12 U.S.C. § 2605(e)(1)(B).

RESPA defines "servicing" as "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). For Bracco's RFI to sustain a Regulation X § 1024.36(c) claim, at least one of the RFI's requests must fit within these definitions.

Bracco's RFI to PNC Mortgage includes the following seven requests,

Specifically, I am requesting the following information for the period beginning January 10, 2014, until your receipt of this request (the 'applicable period'):

1. All correspondence between your company, subsidiaries, [and] servicers attached to this loan that were sent to the borrower from January 10, 2014, through to the present; and proof of mailing, including but not limited to fed extracking numbers, certified mail receipts, and/or a letter log showing the date the letter was sent.

2. All five (5) day letters between your company, subsidiaries, [and] servicers following any loss mitigation applications/submissions to this loan that were sent to the borrower from January 10, 2014, through to the present; and proof of mailing, including but not limited to fed ex tracking numbers, certified mail receipts, and/or a letter log showing the date the letter was sent.

3. All thirty (30) day letters between your company, subsidiaries, [and] servicers following any loss mitigation applications/submissions to this loan that were sent to the borrower from January 10, 2014, through to the present; and proof of mailing, including but not limited to fed ex tracking numbers, certified mail receipts, and/or a letter log showing the date the letter was sent.

4. All letter [sic] explaining the right to appeal the denial of the modification (if applicable) between your company, subsidiaries, [and] servicers following any loss mitigation applications/ submissions to this loan that were sent to the borrower from January 10, 2014, through to the present; and proof of mailing, including but not limited to fed ex tracking numbers, certified mail receipts, and/or a letter log showing the date the letter was sent.

5. All system notes/logs that show the receipt of the loss mitigation submission and that reflect

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