Roth v. CitiMortgage Inc., No. 13–3839–cv.

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtPER CURIAM:
Citation756 F.3d 178
PartiesPatricia ROTH, individually and on behalf of a class of borrowers similarly situated, a/k/a Patricia McCarthy, Plaintiff–Appellant, v. CITIMORTGAGE INC., Defendant–Appellee.
Docket NumberNo. 13–3839–cv.
Decision Date24 June 2014

756 F.3d 178

Patricia ROTH, individually and on behalf of a class of borrowers similarly situated, a/k/a Patricia McCarthy, Plaintiff–Appellant,
v.
CITIMORTGAGE INC., Defendant–Appellee.

No. 13–3839–cv.

United States Court of Appeals,
Second Circuit.

Argued: April 1, 2014.
Decided: June 24, 2014.


[756 F.3d 179]


Rosario G. Sicuranza, Sicuranza Law Firm LLC, Melville, N.Y., for Plaintiff–Appellant.

James C. Schroeder, Mayer Brown LLP, Chicago IL (Therese Craparo, Mayer Brown LLP, New York, N.Y., on the brief), for Defendant–Appellee.


Before: WALKER, CHIN, and DRONEY, Circuit Judges.

PER CURIAM:

Defendant CitiMortgage Inc. services a second residential mortgage for plaintiff Patricia Roth. Roth alleges that CitiMortgage's responses to requests for information about her mortgage violated the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. §§ 2601–2617, the Fair Debt Collection Practices Act (“FDCPA”),

[756 F.3d 180]

15 U.S.C. §§ 1692–1692p, and N.Y. General Business Law (“GBL”) § 349. The district court (Feuerstein, J.) dismissed Roth's complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a claim, and we AFFIRM.

BACKGROUND

Because the district court dismissed Roth's claims on the pleadings, we must limit our consideration “to the factual allegations in [the] amended complaint, which are accepted as true, to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit.” Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.1993).

Since September 2008, Roth has been in default and has made no payments on her second residential mortgage serviced by CitiMortgage. On April 8 and 9, 2011, Roth's lawyer sent two nearly-identical letters to CitiMortgage 1 requesting many specific pieces of information about her mortgage, each of which stated: “Please treat this letter as a ‘qualified written request’ under the Real Estate Settlement Procedures Act.” CitiMortgage responded to Roth's lawyer on April 18, acknowledging the “numerous questions about the origination and/or servicing of [Roth's] mortgage loan,” but noting that “it appears [Roth's] immediate concern is obtaining financial assistance.” On June 11, 2011, Roth's lawyer sent another letter, which was identical to the two April letters except that it asked to be treated “as a SECOND ‘qualified written request’ ” and it stated that CitiMortgage's April 18 letter had not complied with RESPA. The three letters from Roth's lawyer to CitiMortgage were sent to two addresses: one in O'Fallon, Missouri,2 and another in Des Moines, Iowa.

After Roth's lawyer sent his letters, CitiMortgage sent at least three letters directly to Roth. On July 11, 2011, CitiMortgage sent Roth a packet with a financial information form to determine her eligibility for loan modification programs. On March 14, 2012, CitiMortgage wrote to Roth in response to a complaint she had filed with the N.Y. Department of Financial Services, stating that her allegations of improper servicing of her loan were “unsubstantiated” but that CitiMortgage would research and respond to any specific servicing questions. And on April 10, 2012, CitiMortgage sent Roth a notice that her loan was 1322 days in default and that CitiMortgage might commence legal action if the matter was not resolved within ninety days.

On May 16, 2012, Roth commenced this action, alleging violations under RESPA, FDCPA, and N.Y. GBL § 349. She filed an amended complaint on August 8, 2012. On September 11, 2013, the district court granted CitiMortgage's motion to dismiss under Rule 12(b)(6).

[756 F.3d 181]

Roth v. CitiMortgage Inc., No. 12–CV–2446, 2013 WL 5205775 (E.D.N.Y. Sept. 11, 2013). Roth timely appealed.

DISCUSSION

We review the dismissal of a complaint under Fed.R.Civ.P. 12(b)(6) de novo, drawing all reasonable inferences in the plaintiff's favor and dismissing only if the complaint does not “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)) (internal quotation marks omitted). As we explain below, the district court did not err in dismissing Roth's claims under RESPA, FDCPA, or N.Y. GBL § 349, and Roth should not be granted leave to amend her complaint.

I. Real Estate Settlement Procedures Act

CitiMortgage's duties under RESPA are triggered if it receives a qualified written request (“QWR”), defined as correspondence that identifies a borrower's account 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.” 12 U.S.C. § 2605(e)(1)(B)(ii). Roth alleges that the three letters sent by her lawyer in April and June 2011 are QWRs, and that CitiMortgage is liable for failing to provide the requested information (in violation of § 2605(e)(2)) and for providing information about overdue payments to credit agencies during the sixty-day period following receipt of the letters (in violation of § 2605(e)(3)). We conclude that the district court properly dismissed these claims on the basis that her lawyer's letters were not sent to CitiMortgage's designated QWR address, and the requests are thus not QWRs under RESPA.

RESPA is a consumer-protection statute, see Freeman v. Quicken Loans, Inc., ––– U.S. ––––, 132 S.Ct. 2034, 2038, 182 L.Ed.2d 955 (2012), and it imposes short timeframes for mortgage servicers to respond to potentially detailed...

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131 practice notes
  • Mahala A. Church v. Accretive Health, Inc., CIVIL ACTION 14-0057-WS-B
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • December 16, 2014
    ...collector under the FDCPA." Simmons v. Med-I-Claims, 2007 WL 486879, *7 (C.D. Ill. Feb. 9, 2007). 6. See, e.g., Roth v. CitiMortgage Inc., 756 F.3d 178, 183 (2nd Cir. 2014) (affirming dismissal of FDCPA claims where "the amended complaint does not allege that CitiMortgage acquired Roth's de......
  • Sutton v. CitiMortgage, Inc., 16 Civ. 1778 (KPF)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 12, 2017
    ...pertinent information, or to evidence correction of pertinent errors, in writing to borrowers. See generally Roth v. CitiMortgage Inc. , 756 F.3d 178, 181 (2d Cir. 2014) (per curiam); Friedman v. Maspeth Fed. Loan & Sav. Ass'n , 30 F.Supp.3d 183, 189 (E.D.N.Y. 2014) (citations omitted). Pri......
  • Saget v. Trump, 18-CV-1599 (WFK) (ST)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • December 14, 2018
    ...in the plaintiff's possession or of which the plaintiff had knowledge and relied on in bringing suit. Roth v. CitiMortgage Inc. , 756 F.3d 178, 180 (2d Cir. 2014) (citation omitted). "Agency determinations and administrative findings are public records of which a court may properly take jud......
  • Auracle Homes, LLC v. Lamont, No. 3:20-cv-00829 (VAB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • August 7, 2020
    ...A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes."); Roth v. CitiMortgage Inc. , 756 F.3d 178, 180 (2d Cir. 2014) (consideration of a complaint is limited "to the factual allegations in [the] ... complaint, which are accepted as true......
  • Request a trial to view additional results
131 cases
  • Mahala A. Church v. Accretive Health, Inc., CIVIL ACTION 14-0057-WS-B
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • December 16, 2014
    ...collector under the FDCPA." Simmons v. Med-I-Claims, 2007 WL 486879, *7 (C.D. Ill. Feb. 9, 2007). 6. See, e.g., Roth v. CitiMortgage Inc., 756 F.3d 178, 183 (2nd Cir. 2014) (affirming dismissal of FDCPA claims where "the amended complaint does not allege that CitiMortgage acquired Roth's de......
  • Sutton v. CitiMortgage, Inc., 16 Civ. 1778 (KPF)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 12, 2017
    ...pertinent information, or to evidence correction of pertinent errors, in writing to borrowers. See generally Roth v. CitiMortgage Inc. , 756 F.3d 178, 181 (2d Cir. 2014) (per curiam); Friedman v. Maspeth Fed. Loan & Sav. Ass'n , 30 F.Supp.3d 183, 189 (E.D.N.Y. 2014) (citations omitted). Pri......
  • Saget v. Trump, 18-CV-1599 (WFK) (ST)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • December 14, 2018
    ...in the plaintiff's possession or of which the plaintiff had knowledge and relied on in bringing suit. Roth v. CitiMortgage Inc. , 756 F.3d 178, 180 (2d Cir. 2014) (citation omitted). "Agency determinations and administrative findings are public records of which a court may properly take jud......
  • Auracle Homes, LLC v. Lamont, No. 3:20-cv-00829 (VAB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • August 7, 2020
    ...A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes."); Roth v. CitiMortgage Inc. , 756 F.3d 178, 180 (2d Cir. 2014) (consideration of a complaint is limited "to the factual allegations in [the] ... complaint, which are accepted as true......
  • Request a trial to view additional results

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