Walker v. Branch Banking & Trust Co.

Decision Date23 February 2017
Docket NumberCase No. 16–cv–62791–BLOOM/Valle
Citation237 F.Supp.3d 1326
CourtU.S. District Court — Southern District of Florida
Parties Jessica WALKER, and Clifford Walker, Plaintiffs, v. BRANCH BANKING AND TRUST COMPANY, Defendant.

Matthew David Bavaro, Bavaro Legal, Plantation, FL, Michael Abraham Citron, Fort Lauderdale, FL, for Plaintiffs.

David Stockton Hendrix, Gray Robinson, PA, Tampa, FL, for Defendant.



THIS CAUSE is before the Court upon Defendant Branch Banking and Trust Company's ("Defendant") Motion to Dismiss, ECF No. [10] (the "Motion"). The Court has carefully reviewed the Motion, the record, the parties' briefs, and the applicable law. For the reasons that follow, the Motion is granted in part and denied in part.


Plaintiffs Jessica and Clifford Walker ("Plaintiffs") allege that Defendant violated the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601 et seq. ("RESPA"), and its implementing regulation, 12 C.F.R. § 1024 et seq. ("Regulation X"). ECF No. [1] ("Complaint"). Specifically, Plaintiffs seek remedies for Defendant's alleged failure to comply with § 2605(k) of RESPA, §§ 1024.35 and 1024.36 of Regulation X, and § 1026.36 of Regulation Z (12 C.F.R. § 1026 et seq. ). See id. ¶ 3. As the basis for their claims, Plaintiffs allege that on May 26, 2009, they entered into a promissory note agreement with WCS Lending, LLC (the "Note"), secured by a mortgage on Plaintiffs' property. See id. ¶¶ 12–13. Defendant initiated a foreclosure action against Plaintiff Clifford Walker in state court on March 1, 2016, and Plaintiffs retained current counsel thereafter. See id. ¶¶ 14–15. On or about May 9, 2016, Plaintiffs' counsel mailed a Request for Information ("RFI") to Defendant on behalf of Plaintiffs, asking that Defendant "(1) provide an accurate statement of the total outstanding balance of the loan; (2) provide the full name, address and telephone number of the current owner of the original mortgage note; (3) provide a complete pay history for the life of the loan; and finally (4) to clarify with specificity the details of unexplained charges which were assessed on the Plaintiffs' loan." Id. ¶¶ 17, 19. Among other specific information, Plaintiffs sought to obtain "answers as to how and why in one statement alone, Plaintiffs accrued seven (7) separate and unexplained or verified charges on their mortgage loan account amounting to $4,821.28." Id. ¶ 16 (referring to May 16, 2016 mortgage statement). The RFI requests "a detailed explanation of various charges," listing seven separate charges totaling $4,821.28. ECF No. [1–3] ("RFI") at 2 (emphasis in the original). The RFI also requests that Defendant provide "the basis for charging to the account," and include supporting documentation. Id. Further, the RFI requests that Defendant "[p]lease provide a complete pay history for the life of the loan." Id.

Plaintiffs received Defendant's response to the RFI one week later, and received further written correspondence from Defendant on May 24 and June 3, 2016. See Complaint ¶¶ 27–29. Defendant's response is substantial, but, according to Plaintiffs, is nonetheless deficient. For example, Plaintiffs allege that rather than explain a specific basis for the fee/charges described in the RFI, Defendant merely notes that "[c]urrently there are late fees in the amount of $356.35 owed on the account," and that a "$3,244.66 fee classified as ‘Total Fees and Late Charges' ... comprised ‘the total amount of fees and corporate advance owed on the account.’ " Id. ¶ 32(a)(i)-(ii) (quoting ECF No. [1–6] at 1). Defendant's response includes a "ledger" of fees, which Plaintiffs complain "merely regurgitated those fees without any explanation as was requested by the Plaintiffs' RFI." Id. ¶ 32(a)(ii). Finally, regarding Plaintiffs' request for invoices, Plaintiffs allege Defendant responded that the documents would "not be provided, without explanation." Id. ¶ 32(d). Having received Defendant's response, Plaintiffs sent a follow up letter intended to serve as "notice of your error and an opportunity to cure the error." ECF No. [1–7] at 1 (Notice of Error ("NOE")). Defendant sent a response letter, and Plaintiffs filed suit. See ECF Nos. [1–8], [1–9]. Defendant filed the instant Motion to Dismiss on December 29, 2016. Plaintiffs' Response and Defendant's Reply timely followed. See ECF Nos. [18], [22].


Rule 8 of the Federal Rules requires that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Although a complaint "does not need detailed factual allegations," it must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; see Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (explaining that Rule 8(a)(2)'s pleading standard "demands more than an unadorned, the defendant-unlawfully-harmed-me accusation"). In the same vein, a complaint may not rest on " ‘naked assertion [s] devoid of ‘further factual enhancement.’ " Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 557, 127 S.Ct. 1955 (alteration in original)). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. These elements are required to survive a motion brought under Rule 12(b)(6) of the Federal Rules of Civil Procedure, which requests dismissal for "failure to state a claim upon which relief can be granted."

When reviewing a motion under Rule 12(b)(6), a court, as a general rule, must accept the plaintiff's allegations as true and evaluate all plausible inferences derived from those facts in favor of the plaintiff. See Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration Alliance , 304 F.3d 1076, 1084 (11th Cir. 2002) ; AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC , 608 F.Supp.2d 1349, 1353 (S.D. Fla. 2009). However, this tenet does not apply to legal conclusions, and courts "are not bound to accept as true a legal conclusion couched as a factual allegation." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ; see Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ; Thaeter v. Palm Beach Cnty. Sheriff's Office , 449 F.3d 1342, 1352 (11th Cir. 2006). Moreover, "courts may infer from the factual allegations in the complaint ‘obvious alternative explanations,’ which suggest lawful conduct rather than the unlawful conduct the plaintiff would ask the court to infer." Am. Dental Ass'n v. Cigna Corp ., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal , 556 U.S. at 682, 129 S.Ct. 1937 ). A court considering a Rule 12(b) motion is generally limited to the facts contained in the complaint and attached exhibits, including documents referred to in the complaint that are central to the claim. See Wilchombe v. TeeVee Toons, Inc ., 555 F.3d 949, 959 (11th Cir. 2009) ; Maxcess, Inc. v. Lucent Technologies, Inc ., 433 F.3d 1337, 1340 (11th Cir. 2005) ("[A] document outside the four corners of the complaint may still be considered if it is central to the plaintiff's claims and is undisputed in terms of authenticity.") (citing Horsley v. Feldt , 304 F.3d 1125, 1135 (11th Cir. 2002) ).


Plaintiffs claim that Defendant violated RESPA at 12 U.S.C. § 2605(k)(1)(C) and (E) by inadequately responding to the RFI. See Complaint ¶¶ 48, 53. Section 2605 of RESPA governs the "servicing of mortgage loans and administration of escrow accounts." Section 2605(k)(1)(E) implicates Regulation X by providing in relevant part that "[a] servicer of a federally related mortgage shall not ... fail to comply with any other obligation found by the Bureau of Consumer Financial Protection, by regulation, to be appropriate to carry out the consumer protection purposes of this chapter." Plaintiffs claim that Defendant is liable under RESPA for failing or refusing to comply with § 1024.36(d) of Regulation X. See id. ¶¶ 53–54. Section 1024.36(d)(2)(i)(B) provides, in pertinent part, that "[a] servicer must comply with the requirements of paragraph (d)(1)" no later "than 30 days (excluding legal public holidays, Saturdays, and Sundays) after the servicer receives the information request." As to § 1024.36(d)(1) itself, the subsection requires servicers to respond to a borrower's requests for information by either:

(i) Providing the borrower with the requested information and contact information, including a telephone number, for further assistance in writing; or
(ii) Conducting a reasonable search for the requested information and providing the borrower with a written notification that states that the servicer has determined that the requested information is not available to the servicer, provides the basis for the servicer's determination, and provides contact information, including a telephone number, for further assistance.

12 C.F.R. § 1024.36(d)(1). RESPA provides for the recovery of actual damages, and statutory damages where a pattern or practice of noncompliance is established. See 12 U.S.C. § 2605(f)(1).

In order to survive a motion to dismiss, a plaintiff must sufficiently allege that "1) Defendant is a loan servicer; 2) Defendant received a QWR [ ("Qualified Written Request") ] from Plaintiff; 3) the QWR relates to servicing of 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. , 2015 WL 899942, at *3 (M.D. Fla. Mar. 3, 2015) ; see Miranda v. Ocwen Loan Servicing, LLC , 148 F.Supp.3d 1349, 1354 (S.D. Fla. 2015) ; Correa v. BAC Home Loans Serv. LP , 2012 WL 1176701, at *6 (M.D. Fla. Apr. 9, 2012) (citing Frazile v. EMC Mortg. Corp ., 382 Fed.Appx. 833, 836 (11th Cir. 2010) ). An RFI can qualify as a QWR. See Miranda , 148 F.Supp.3d...

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