Santos v. Federal National Mortgage Ass'n
889 F. Supp. 2d 1363
S.D. Fla.2012Background
- Fannie Mae owns the mortgage and Bank of America, N.A. servicers the loan.
- Plaintiff alleges TILA §1641(f)(2) violation for failure to provide owner’s phone number after a QWR under RESPA.
- June 28, 2011 QWR sought owner information; BANA identified Fannie Mae but did not provide a phone number.
- Sept. 26, 2011 supplemental response identified owner but declined most of the request; phone number still missing.
- Feb. 29, 2012 second supplemental response provided Fannie Mae’s phone number; case filed and court grants in part, dismissing actual damages without prejudice while allowing other claims to proceed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BANA violated TILA by failing to provide the owner’s phone number | Plaintiff—Dimitrouleas—claims §1641(f)(2) violation. | BANA contends responses complied or were timely. | Plaintiff stated a TILA claim; initial response inadequate. |
| Whether supplemental RESPA responses may be considered at motion to dismiss | Supplemental letters support plaintiff’s claim. | Supplementals are not central to complaint at 12(b)(6). | Supplementals not considered; but claim survives on the complaint. |
| Whether safe harbor under TILA §1640(b) is applicable | Safe harbor may shield from liability. | Defendants contend safe harbor applies. | Not properly before the Court on a removal-to-dismiss motion. |
| Whether servicer liability under TILA extends to BANA | As assignee/owner, BANA can be liable for §1641(f)(2). | TILA liability limited to creditors/assignees; servicers generally not liable. | BANA may be liable where it was or is the owner of the obligation. |
| Whether Fannie Mae can be vicariously liable for BANA’s TILA violation | Owner liable for servicer violations; vicarious liability supported. | Fannie Mae not liable for servicer’s acts. | Court approves vicarious liability of Fannie Mae for BANA’s violation. |
Key Cases Cited
- Bradford v. HSBC Mortg. Corp., 829 F. Supp. 2d 340 (E.D. Va. 2011) (timing/deny safe harbor when response is inadequate)
- Khan v. Bank of N.Y. Mellon, 849 F. Supp. 2d 1377 (S.D. Fla. 2012) (servicer may be liable if it previously owned the obligation)
- Jones v. Bock, 549 U.S. 199 (Sup. Ct. 2007) (Rule 12(b)(6) and affirmative defenses context)
- Thomka v. A.Z. Chevrolet, Inc., 619 F.2d 246 (3d Cir. 1980) (safe harbor/algorithmic error considerations in some contexts)
- Ashcroft v. Iqbal, 556 U.S. 662 (Sup. Ct. 2009) (plausibility standard for pleadings)