Kelly v. Fairon & Associates, 842 F. Supp. 2d 1157

This case involves a refinanced mortgage from LoanNow Financial to Kelly on property in Richfield, Minnesota, with two promissory notes totaling $270,000 secured by the property.
Kelly served QWRs to Chase Home Finance, seeking information about the servicing and ownership of the loan; Chase supplied documents but not notice of the current holder’s identity.
Kelly filed suit June 30, 2010 against BNC Mortgage, LoanNow, Chase, MERS, Aurora Bank, and Aurora Loan Services, asserting RESPA, TILA, and Minnesota consumer protection claims, among other theories.
Kelly seeks partial summary judgment on RESPA and TILA claims against Chase.
The court denied Kelly’s motion for partial summary judgment, ruling on RESPA not violated for lack of servicing-related information and on damages and TILA arguments as discussed below.
The decision discusses the proper scope of RESPA QWR responses, RESPA damages, and the scope of TILA liability for servicers versus creditors.

Issue	Plaintiff's Argument	Defendant's Argument	Held
RESPA QWR scope about note holder identity and servicer	Kelly; notes owner/servicer info relates to servicing	Chase; ownership info not servicing	Chase did not violate RESPA by withholding note holder/master servicer info
Damages element for RESPA claim	Damages need not be proven at this stage	Damages required for RESPA liability	No actual or statutory damages proven; damages element not satisfied
TILA private right of action against servicers	Servicer liability under TILA §1640(a) supported by §1641(f) cross-reference	TILA liability does not extend to servicers, only creditors	Summary judgment denied for TILA; servicers not liable under private action
Overall entitlement to partial summary judgment on RESPA/TILA	Requests partial SJ on RESPA/TILA claims against Chase	Questions of damages and liability require trial	Motion denied; issues remain for trial on damages and TILA liability
Vicarious liability under §1641(f)(2) discussed but not before the court			Not addressed as a live issue in this ruling

DeVary v. Countrywide Home Loans, Inc., 701 F.Supp.2d 1096 (D.Minn.2010) (ownership does not relate to servicing; RESPA not violated by note ownership info)