Roth v. CitiMortgage Inc.
2014 U.S. App. LEXIS 11854
| 2d Cir. | 2014Background
- Roth, defaulted on a second mortgage serviced by CitiMortgage since September 2008.
- Roth's lawyer sent three letters in 2011–2012 purporting to be qualified written requests (QWRs) to CitiMortgage at addresses Roth alleges were not designated QWR addresses.
- CitiMortgage responded to Roth's lawyer, and sent Roth direct communications, including a loan-modification packet and later default notices.
- Roth filed suit in May 2012 alleging RESPA, FDCPA, and NY GBL §349 violations; the district court dismissed under Rule 12(b)(6).
- The court of appeals affirmed, holding Roth's letters were not QWRs because not sent to CitiMortgage's designated QWR address, among other reasons.
- Roth sought leave to amend on appeal, which the court denied as futile.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Roth's letters were QWRs triggering RESPA duties | Roth asserts her lawyer's letters were QWRs seeking servicing information | CitiMortgage argues letters were not QWRs because not sent to the designated QWR address | No RESPA duties; letters not QWRs |
| Whether CitiMortgage violated FDCPA by its post-default communications | CitiMortgage's communications constitute debt collection activity | CitiMortgage is not a debt collector under FDCPA for debt not in default when obtained | FDCPA claims fail; CitiMortgage not a debt collector for this debt |
| Whether CitiMortgage violated NY GBL § 349 | Inadequate QWR notice constitutes deceptive act or practice | Notice was adequate; RESPA and related provisions not triggered | NY GBL § 349 claim failed |
| Whether leave to amend should be granted on appeal | Amendment could cure defects | Amendment would be futile; exhibits already considered | Leave to amend denied |
Key Cases Cited
- Berneike v. CitiMortgage, Inc., 708 F.3d 1141 (10th Cir. 2013) (designated QWR address required for RESPA duties to attach)
- Freeman v. Quicken Loans, Inc., 132 S. Ct. 2034 (S. Ct. 2012) (RESPA is a consumer-protection statute with specific duty timing)
- DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104 (2d Cir. 2010) (plausibility standard for Rule 12(b)(6) review)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (pleading standard to state a claim is plausibility-based)
- Kirsch v. Fleet St., Ltd., 148 F.3d 149 (2d Cir. 1998) (leave to amend and futility considerations on appeal)
- Williams v. Citigroup Inc., 659 F.3d 208 (2d Cir. 2011) (standards for leave to amend and amendment futility)