United States District Court, D. Arizona
HONORABLE ROSEMARY MARQUEZ UNITED STATES DISTRICT JUDGE
before the Court are the Parties' Cross Motions for
Summary Judgment(Doc. 44, 51). On August 7, 2018, Plaintiff
filed a Motion Requesting a Decision on his Motion for
Summary Judgment (Doc. 55). Defendants filed a Motion to
Strike (Doc. 56). The Court will deny Plaintiff's Motion
for Summary Judgment (Doc. 51), grant Defendants' Motion
for Summary Judgment (Doc. 44), and grant Defendants'
Motion to Strike (Doc. 56).
Second Amended Complaint (“SAC”) (Doc. 8), filed
pro se, alleges that one or more of the Defendants claim to
possess an interest in a Note executed by Plaintiff on
January 5, 2007, naming Option One Mortgage as beneficiary.
(Doc. 8 at 2-3.) Plaintiff received notice of Arizona
Trustee's Sale No. 124965 on March 6, 2017-an action
brought as a means of enforcing the Note that was secured by
Plaintiff's property. (Id. at 2.) Plaintiff
claims that Defendants have not presented Plaintiff with a
“Chain of Title” and therefore do not have
“authority & standing to enforce a
contract[.]” (Id. at 3.) The SAC alleged
violations of the Real Estate Settlement Procedures Act
(“RESPA”) and the Truth in Lending Act, in
addition to a “chain of title” claim. (Doc. 8.)
Court granted Defendants Christina Harper and The Mortgage
Law Firm, PC's Motion to Dismiss (Doc. 15), and granted
in part and denied in part Defendants Deutsche Bank National
Trust Company and Specialized Loan Servicing, LLC's
Motion to Dismiss (Doc. 16). (Doc. 36.) Following resolution
of the motions to dismiss, only the RESPA claim based on 12
U.S.C. § 2605(k)(1)(D) against Deutsche and SLS
remained. (See id.)
January 2007 Plaintiff executed a $346, 500.00 Note and Deed
of Trust (“Deed”) on a residential property
located at 6480 N. Mona Lisa Road, Tucson, Arizona
(“the Property”). (Doc. 45 at 9, 14.) The Deed
named Option One Mortgage Corporation (“Option
One”) as beneficiary and First American Title Insurance
Company (“First American”) as trustee.
(Id. at 14.) In 2010, Sand Canyon Corporation,
formerly Option One, assigned the Deed to Deutsche Bank
National Trust Company (“Deutsche”) as trustee
for J.P. Morgan Mortgage Acquisition Trust 2007-HE1, Asset
Back Pass-Through Certificates Series 207-HE1 (“JP
Morgan Trust”). (Id. at 22.) Plaintiff was
notified on July 17, 2015 that his loan servicing was being
transferred (“Servicing Transfer Letter”) from JP
Morgan Chase Bank, N.A. (“Chase”) to Specialized
Loan Servicing, LLC (“SLS”). (Doc. 45 at 24.) The
Servicing Transfer Letter included SLS's contact
information, including an address and customer service
telephone number. (Id. at 25.)
receipt of the Servicing Transfer Letter, Plaintiff began
sending Chase requests regarding ownership of his loan and
contact information. (See Doc. 45 at 30-39.) Chase
informed Plaintiff by letter on August 3, 2015 that the
mortgage loan owner for the Property is Deutsche as trustee
for JP Morgan Trust, and provided him with a mailing address
and phone number for Deutsche. (Id. at 30.) By a
separate letter dated August 3, 2015, Chase informed
Plaintiff that, after review of his loan, Chase
“maintain[s] that [Plaintiff has] undertaken a valid,
binding, and legally enforceable obligation with
[Chase].” (Id. at 34.) That letter also
informs Plaintiff that the loan originated with Option One on
January 5, 2007 and that servicing for the loan was
transferred to Chase on May 1, 2007. (Id.)
response to the August 3rd letter, Plaintiff again wrote to
Chase. (Doc. 45 at 32.) In a letter dated August 12, 2015 and
titled “Hock-Huat Yap, Alleged Chase Account #
0024386195” Plaintiff asserted that Chase had
“neither Beneficiary Interest nor Standing to enforce
any alleged obligation.” (Id.) He additionally
explained that Chase failed to provide him with requested
information and asserted violations of the Fair Debt
Collection Practices Act (“FDCPA”). (Id.
at 32-33.) Plaintiff concluded the letter by indicating that
he planned to seek legal advice on how to proceed in this
matter. (Id. at 33.) Plaintiff re-sent Chase
essentially the same letter in September 2015. (Id. at
37.) A Notice of Trustee's Sale was recorded on March 2,
2017. (Doc. 45 at 41.)
RESPA - 12 U.S.C. § 2605(k)(1)(D)
(k)(1)(D) of Title 12 of the United States Code-one of the
Dodd-Frank additions to the Real Estate Settlement Procedures
Act (“RESPA”)-prohibits federally related
mortgage servicers from “fail[ing] to respond within 10
business days to a request from a borrower to provide the
identity, address, and other relevant contact information
about the owner or assignee of the loan[.]” 12 U.S.C.
§ 2605(k)(1)(D). “RESPA's provisions relating
to loan servicing procedures should be construed liberally to
serve the statute's remedial purpose.” Medrano
v. Flagstar Bank, FSB, 704 F.3d 661, 665-66 (9th Cir.
Qualified Written Request
servicer's duty to respond under certain RESPA
subsections is triggered when the servicer receives a
“qualified written request” (“QWR”).
12 U.S.C. § 2605(e)(1)(A)-(B); Medrano, 704
F.3d at 666. The statute defines QWR, see 12 U.S.C.
§ 2605(e)(1)(B), but there are no “magic
words” required. Medrano, 704 F.3d at 666. Any
written inquiry that “(1) reasonably identifies the
borrower's name and account, (2) either states the
borrower's reasons for the belief that the account is in
error or provides sufficient detail to the servicer regarding
other information sought by the borrower, and (3) seeks
information relating to the servicing of the loan” is
considered a QWR. Id. (adopting and quoting the
Seventh Circuit's reasoning in Catalan v. GMAC
Mortgage Corp., 629 F.3d 676, 685-87 (7th Cir. 2011))
(internal quotations omitted). However, the third requirement
of the Medrano court's definition is
inapplicable here. See Medrano, 704 F.3d at 666. The
Medrano court made clear that the third part of its
definition was actually regarding what would trigger a
servicer's duty to acknowledge receipt of a QWR under
section 2605(e)(1)(A), which requires that the request be a
QWR and that the requested information in the QWR
relate to the servicing of the loan. Id. at 666
The Medrano court held that “letters
challenging only a loan's validity or its terms are not
qualified written requests that give rise to a duty to
respond under § 2605(e).” Id. at 667.
section 2605(k)(1)(D) is triggered only by QWRs, or if any
“request” will suffice is not completely clear.
The plain language of the subsection only prohibits servicers
from failing to respond to a “request from a borrower .
. . for information about the owner or assignee of the
loan[.]” Of the five subsections in section 2605(k)(1),
two refer generally to requests,  and one refers to
QWRs. Further, the QWR definition in section
2605(e)(1)(B) begins by limiting the definition's scope
“[f]or purposes of this subsection[.]” However,
other district courts have assumed that only QWRs will
trigger obligations under 2605(k)(1)(D). See e.g. Bever
v. Cal-Western Reconveyance Corp., No. 1:11-CV-1548,
2013 WL 5492154, at *5-6 (E.D. Cal. Oct. 2,
2013); Malifrando v. Real Time Resols.,
Inc., No. 2:16-CV-0223, 2016 WL 6955050, at *5 (E.D.
Cal. June 30, 2016).
borrower who alleges a violation of RESPA section 2605 is
entitled to “any actual damages to the borrower as a
result of the failure” to comply with the statue. 12
U.S.C. § 2605(f)(1). “A number of courts have read
the statute as requiring a showing of pecuniary damages in
order to state a claim.” Allen v. United Fin.
Mortg. Corp., 660 F.Supp.2d 1089, 1097 (N.D. Cal. 2009).
“Courts have interpreted this requirement to plead
pecuniary loss liberally.” Id. (quoting
Yulaeva v. Greenpoint Mortg. Funding Inc., No.
S-09-1504, 2009 WL 2880393, at *15 (E.D. Cal. Sept. 3,
2009)). In Watson v. Bank of America, N.A., the
Southern District of California listed a number of damages
claims that had been found to be actual damages for RESPA
purposes: costs incurred by a debtor in mailing QWRs to a
loan servicer, over calculation and overpayment of interest
on a loan, the costs of repairing a borrower's credit,
and the reduction or elimination of the borrower's credit
limits. No. 16-CV-513, 2016 WL 3552061, at *12-13 (S.D. Cal.
June 30, 2016). Even emotional distress and mental anguish
may constitute actual damages under RESPA.
Summary Judgment Standard
judgment should be granted where there is “no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). A
fact is material if it “might affect the outcome of the
suit under the governing law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute
is genuine if the evidence would enable a reasonable trier of
fact to resolve the dispute in favor of the nonmoving party.
See Id. At summary judgment, the judge's
function is not to weigh the evidence and determine the truth
but to determine whether there is a genuine issue for trial.
Anderson, 477 U.S. at 249. In evaluating a motion
for summary judgment, the Court must “draw all
reasonable inferences from the evidence” in favor of
the non-movant. O'Connor v. Boeing N. Am., Inc.,
311 F.3d 1139, 1150 (9th Cir. 2002). If the “evidence
yields conflicting inferences, summary judgment is improper,
and the action must proceed to trial.” Id.
the parties file cross-motions for summary judgment, the
court must consider each party's evidence, regardless
under which motion the evidence is offered.” Las
Vegas Sands, LLC v. Nehme, 632 F.3d 526, 532 (9th Cir.
2011). That is, the court may consider the plaintiff's
evidence from its cross-summary judgment motion to determine
defendant's summary judgment motion, and vice versa.
See Fair Housing Council v. Riverside Two, 249 F.3d
1132, 1136-37 (9th Cir. 2001). In this instance, the district
court “review[s] each motion . . . separately, giving
the nonmoving party for each motion the benefit of all
reasonable inferences.” Brunozzi v. Cable Comm.,
Inc., 851 F.3d 990, 995 (9th Cir. 2017), cert.
denied, 138 S.Ct. 167 (2017).
court need consider only the cited materials, but it may
consider any other materials in the record. Fed.R.Civ.P.
56(c)(3). If, after considering the arguments and materials
in the record, it appears that reasonable jurors could find
that the defendant is liable, then the court should not grant
summary judgment. Cornwell v. Electra Cent. Credit
Union, 439 F.3d 1018, 1027-28 (9th Cir. 2006). If,
however, jurors of reason could not determine that plaintiff
is entitled to a judgment in her favor, then summary judgment
is appropriate. Id.