Miranda v. Ocwen Loan Servicing, LLC
148 F. Supp. 3d 1349
S.D. Fla.2015Background
- In February 2012 George and Christine Miranda executed a mortgage; Ocwen Loan Servicing, LLC services the loan.
- On January 8, 2015 Plaintiffs’ counsel (Loan Lawyers) sent a written request for information (RFI/QWR) to Ocwen requesting loan life, payoff statement, owner of the note, and nine interrogatories about property inspections.
- Ocwen acknowledged receipt January 16, 2015 and sent letters on January 20, January 22, and February 7, 2015; Plaintiffs allege those responses were incomplete as to the nine inspection-related questions.
- Plaintiffs sent follow-up correspondence (including a March 6, 2015 letter) indicating unanswered interrogatories; Plaintiffs filed suit July 10, 2015 asserting RESPA violations (Count I) and FCCPA claims (Count II).
- Ocwen moved to dismiss Count I under Rule 12(b)(6), arguing Plaintiffs failed to plead inadequate response as a matter of law and failed to plead recoverable damages; court considered three Ocwen letters attached to the motion as central and undisputed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of response to QWR | Miranda: Ocwen failed to provide full answers to nine inspection-related interrogatories within 30 days | Ocwen: its January 20 letter sufficed to answer and was timely | Court: Plaintiffs plausibly pleaded an inadequate response; January 20 letter did not establish adequacy as a matter of law |
| Timeliness of responses | Miranda: several required items remained unanswered ~55 days after receipt | Ocwen: timely letters were sent within statutory window | Court: timing allegations (no complete answers by ~55 days) support a plausible claim of inadequate response |
| Actual damages under RESPA | Miranda: seeks photocopying/postage and attorney fees tied to follow-up correspondence | Ocwen: Plaintiffs improperly seek costs incurred preparing initial RFI | Court: Costs incurred preparing/mailing initial RFI are not recoverable, but costs and reasonable attorney’s fees incurred after the inadequate response (e.g., follow-up letters) are recoverable |
| Statutory damages (pattern or practice) | Miranda: alleges a pattern/practice of RESPA violations involving four other loans serviced by Ocwen | Ocwen: Plaintiffs fail to plead factual basis for pattern or practice | Court: Allegations regarding four other loans are conclusory and insufficient; statutory damages claim dismissed without prejudice |
Key Cases Cited
- Grossman v. Nationsbank, 225 F.3d 1228 (11th Cir.) (pleadings and attached exhibits treated as true at motion to dismiss)
- GSW, Inc. v. Long Cty., 999 F.2d 1508 (11th Cir.) (court limits consideration to pleadings and attachments on 12(b)(6))
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility standard for pleading)
- Horsley v. Feldt, 304 F.3d 1125 (11th Cir.) (when documents attached to motions may be considered if central and undisputed)
- Day v. Taylor, 400 F.3d 1272 (11th Cir.) (authenticity requirement for documents considered on motion to dismiss)
- Lockwood v. Beasley, 211 Fed. Appx. 873 (11th Cir.) (document is central if plaintiff would need it to prove the claim)