Steven Bivens v. Select Portfolio Servicing, Inc.
2017 U.S. App. LEXIS 15519
| 11th Cir. | 2017Background
- In December 2012 SPS sent Bivens a notice that it had been assigned servicing rights and listed three separate mailing addresses: General Correspondence, Disputes/Inquiries, and Payment Remittance.
- Bivens (through counsel) mailed a letter to SPS’s General Correspondence address that asserted SPS lacked standing and requested identification of the loan owner and a certified copy of the promissory note, labeling the letter a "qualified written request" (QWR) under RESPA § 2605(e).
- SPS received the letter at its General Correspondence address, forwarded it to its Disputes/Inquiries unit, replied identifying the note holder and told Bivens he had mailed to the wrong address, but did not timely provide the certified note.
- Bivens sued under RESPA § 2605(e) for statutory and actual damages for SPS’s alleged failure to respond to a QWR; SPS moved for summary judgment arguing the letter was not a QWR and that its duties were not triggered because Bivens mailed to the wrong address.
- The district court granted summary judgment for SPS; the Eleventh Circuit affirmed, holding Regulation X permitted servicers to designate a particular address for QWRs and that a borrower must send the QWR to that address to trigger the servicer’s duties.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether SPS’s notice established a designated address for QWRs | Bivens: SPS did not specifically label any address for "qualified written requests," so his letter to General Correspondence qualified as a QWR | SPS: Its Disputes/Inquiries address was a designated, exclusive address for written requests/QWRs and the borrower must send QWRs there | Held: SPS’s notice (directing "all written requests" to Disputes/Inquiries) reasonably designated the QWR address; borrower must mail to the designated address to trigger duties |
| Whether a servicer must maintain an office devoted solely to QWR processing | Bivens: Regulation X requires a "separate and exclusive office" solely for QWRs | SPS: The regulation allows designating an office as the exclusive address for QWRs even if that office handles other mail | Held: "Separate and exclusive office" means an office designated as the exclusive place to receive QWRs; it need not be used only for QWRs |
| Whether use of more general language ("written requests") is sufficient to designate a QWR address | Bivens: Using non‑technical terms failed to put a reasonable borrower on notice that the address was for QWRs | SPS: Lay terms like "written requests," "disputes," and "inquiries" sufficiently notify borrowers to send QWRs there | Held: Using "written requests/disputes/inquiries" is reasonably clear to a lay borrower and satisfies the regulation so long as the designation is not vague |
| Whether SPS had any duty to respond given Bivens mailed to the wrong address | Bivens: His letter was a QWR regardless of address; SPS had to respond | SPS: Regulation X requires delivery to the designated address to trigger duties; because Bivens mailed to General Correspondence, no duty was triggered | Held: Because Bivens did not send the QWR to SPS’s designated address, SPS had no duty to respond; summary judgment for SPS affirmed |
Key Cases Cited
- Sierra Club v. Johnson, 436 F.3d 1269 (11th Cir.) (agency interpretation of its regulation controlling unless plainly erroneous)
- Auer v. Robbins, 519 U.S. 452 (1997) (deference to an agency's interpretation of its own regulation)
- Roth v. CitiMortgage Inc., 756 F.3d 178 (2d Cir.) (failure to send request to designated address does not trigger servicer duties under RESPA)
- Berneike v. CitiMortgage, Inc., 708 F.3d 1141 (10th Cir.) (receipt at designated address necessary to trigger RESPA duties)
- Renfroe v. Nationstar Mortg., LLC, 822 F.3d 1241 (11th Cir.) (RESPA is remedial and construed liberally)