ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS COUNT I OF PLAINTIFFS’COMPLAINT
THIS CAUSE is bеfore the Court upon Defendant’s Motion to Dismiss Count I of Plaintiffs’ Complaint [DE 17] (“Motion”). The Court, has reviewed the Motion, Plaintiffs’ Response [DE 21], Defendant’s Reply [DE 32], and the record in this case, and is otherwise advised in the premises. For the reasons discussed herein' the Court will grant in part the Motion, dismissing Plаintiffs’ claim for statutory damages and limiting the actual damages that Plaintiffs may pursue under Count I.
I. BACKGROUND
On or about February 17, 2012, Plaintiffs. George and Christine Miranda signed a promissory note secured by a mortgage encumbering their home in Fort Lauder-dale, Florida. DE 1 ¶¶ 16-17. Défendant Ocwen Loan Servicing, LLC' (“Ocwen”) is the sеrvicer of the loan. Id. ¶¶ 10,19. On or about January 8, 2015, Loan Lawyers mailed a written request for information (“RFI”) to Defendant on behalf of Plaintiffs. Id. ¶ 21. Ocwen received the RFI on or about January 10, 2015. Id. The RFI requested the following items: (1) the complete life of the loan; (2) an accurate
a. Please state if you have any reason to believe the subject property is vacant and/or not in good condition, and if yes, please state the reason.
b. Please identify the specific section of the mortgage that you rely upon to authorize any property inspections on the subject property.
c. Please advise why you believe that monthly property inspections are rеasonable or appropriate to protect the lender’s interest in the subject property.
d. Please identify the date upon which you first ordered a property inspection to be conducted on the subject property.
e. Please state the frequency with which you conduct or cause to be conducted property inspections upon the subject property.
f. Please state whether you received specific instructions from the owner/lender of the subject loan to conduct or cause to be cоnducted property inspections upon the subject property.
g. The date each property inspection was conducted.
h. Copies of each and every property inspection invoice, report, photographs taken (if applicable).
i. Proof of payment for the amounts specified and charged to the account.
Id ¶ 24. On or about January 16, 2015, Defendant acknowledged receipt of Plaintiffs’ RFI. Id. ¶ 27. Defendant provided a payoff statemеnt on January 20, 2015, and a pay history on January 22,, 2015. Id On January 29, 2015, Loan Lawyers sent correspondence to Defendant on behalf of Plaintiffs as a reminder that Plaintiffs still had not received the ownership information. Id ¶ 29. On February 7, 2015, Defendant provided Plaintiffs with the original owner information. Id ¶ 31. On March 6, 2015, Loan Lawyers, on behalf of Plaintiffs, sent another correspondence to Defendant seeking responses to Plaintiffs’ unanswered interrogatories, but Defendant “failed or refused to adequately respond.” Id ¶¶ 33, 35.
On July 10, 2015, Plaintiffs filed the instant action against Defendant. Count I alleges a violation of the Real Estate Settlement Procedures Act, 12 U.S.C §§ 2601, et seq. (“RESPA”). Id ¶¶ 61-72. Count I also alleges a “pattern or practice” of RESPA violations by Defendant with respect to four loans in addition to Plaintiffs’. Id ¶¶ 70-71. Count II alleges violations of the Florida Consumer Collection Practices Act, Fla. Stat. §§ 559.55-559.785 (“FCCPA”). Id ¶¶ 73-80.
On August 28,2015, Defendant moved to dismiss Count I under Federal Rule of Civil Procedure 12(b)(6), See DE 17. Defendant argues in the Motion that the Complaint fails to allege sufficient facts to establish that (1) Defendant’s response to the RFI was untimely and inadequate as a matter of law and (2) Plaintiffs are entitled to actual and stаtutory damages. Id In support of the Motion, Defendant offered for the Court’s consideration two composite exhibits, which were not attached to the Complaint. Id, Composite Exs. 3 & 5.
II. LEGAL STANDARD
A defendant may move to dismiss a complaint pursuant to Rule 12(b)(6) if the
To survive a Rule 12(b)(6) motion to dismiss, the complaint “does not need detailed factual allegations”; however, the “plaintiffs obligation to provide the ‘grounds’ of his ‘entitlepnent] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level____” Bell Atl. Corp. v. Twombly,
III. DISCUSSION
As a preliminary matter, the present Motion to Dismiss has not been converted into a motion for summary judgment in accordance with Federal Rule of Civil Procedure 12(d). A court ordinarily cannot consider matters outside the pleadings when evaluating a motion to dismiss under Rule 12(b)(6). See Brooks v. Blue Cross & Blue Shield of Fla., Inc.
In ruling on the Motion, the Court did not consider Composite Exhibit 5, Defendant’s letter dated March 26, 2015, because Plaintiffs contest its authenticity. DE 21 at 2. Moreover, viewing the Complaint in the light most favorable to Plaintiffs, the Court does not find that Composite Exhibit 5 is central to Plaintiffs’ RESPA claim. The letter is dаted after the thirty-day statutory window in which Defendant was required to respond to the RFI, and therefore Plaintiffs could have brought the same RESPA claim regardless of whether Defendant sent this letter. Therefore, the Court did not consider the letter in resolving the present Motion.
The Court did, howevеr, consider Composite Exhibit 3. The Exhibit includes three letters from Defendant to Plaintiffs
Moving to the substance of the Motion, Defendant argues that Plaintiffs have failed to sufficiently plead a RE SPA claim. To state a RESPA claim for failure to respond to a qualified written request (“QWR”), a plaintiff must allege: “(1) the defendant is a loan servicer under the statute; (2) the plaintiff sent a [QWR] consistent with the requirements of the statute; (3) the defendant failed to respond adequately within the statutorily required days; and (4) the plaintiff has suffered actual or statutory damages.” Correa v. BAC Home Loans Serv. LP, No. 6:11-cv-1197-Orl-22DAB,
A. Adequacy of Response
Plaintiffs have sufficiently pled that Defendant failed to provide an adequate response to their RFI within the statutory period. A loan servicer must- rеspond to a request for information, other than information about the identity and contact information of the owner or assignee of a mortgage, within thirty days (excluding legal public 'holidays, Saturdays, and Sundays) of receiving the request. 12 C.F.R. § 1024.36(d)(2)®. The Complaint alleges that Plaintiffs submitted nine interrogаtories to Defendant about the subject property and that “[w]eeks went by and Plaintiffs still had not received responses to the nine informational requests regarding the property inspections.” DE 1 ¶32. By March 6, 2015, approximately fifty-five days after Defendant’s receipt of the RFI, Plaintiffs аllegedly still had not received all of the information that they requested. Id. ¶33. These allegations are “enough facts to state a claim that is plausible on its face” that Defendant failed to respond adequately to Plaintiffs’ RFI. See Twombly,
In challenging'the Complaint, Defendant argues that it answered Plaintiffs’ interrogatories in its letter dated January 20, 2015. DE 17 at 9. The letter notified Plaintiffs-that, “If -you- become[] delinquent on you loan, this fee may be charged for an inspection of the property to make sure that it is still in good condition.” Id. It is unclear to the Court how this statement is responsive to all, if any, of Plaintiffs’ specific interrogatories regarding the property inspection fees. Construing any ambiguities in favor of Plaintiffs, the Court does'not find-that Defendant’s January 20, 2015, letter renders Defendant’s response adequate as a matter óf law.
B. Damages
A RESPA claim requires damages. See Frazile,
i. Actual Damages
Plaintiffs have alleged actual damages recoverable under RESPA.' “[C]osts incurred while preparing a qualified written request for information from a servicer cannot serve as a basis for damages because, at the time, those expenses are incurred, there has been no RESPA violation.” Long v. Residential Credit Sols., Inc., No. 9:15-CV-80590,
The Complaint seeks actual damages for “(1) photocopying costs and postage costs incurred in mailing Plaintiffs RFI; and (2) photocopying costs, postage costs, and reasonable attorney’s fees incurred as a result of having to send additional correspondences due to OCWEN’s failure to adequately respond to Plaintiffs RFI.” DE 1 ¶ 69. Plaintiffs are mistaken that they can seek damages for costs incurred in preparing and mailing the RFI. See Long,
ii. Statutory Damages
Unlike the claim for actual damages, the Complaint does not adequately. plead statutory damages. In order to recover statutory damages, the plaintiff must show “a pattern or practice of noncompliance.” 12 U.S.C. § 2605(f)(1)(B). “Pattern or practice” is not defined by а specific number of offenses; rather, the term suggests a standard or routine way of operating. Compare In re Tornasevic,
Here, Plaintiffs state that Defendant once provided them with an inadequate response and that Defendant failed to comply with RE SPA regulations for four other loans that it services. DE 1 ¶71. The Complaint identifies the loans by number but provides nо other information about them or how Defendant violated RESPA in servicing them. Accordingly, the blanket assertion that Defendant violated RESPA regulations as to four other loans, without any further facts to support that claim, is too conclusory and vague to support a claim for statutory damages under RESPA. Therefore, the claim for statutory damages must be dismissed.
IV. CONCLUSION
For the reasons explained in this Order, Defendant’s Motion to Dismiss Count I of Plaintiffs’ Complaint [DE 17] is GRANTED in part and DENIED in part as follows:
1. As to Count I, Plaintiffs’ claim for expenses incurred in preparing the RFI shall be excluded from their сlaim for actual damages.
2. As to Count I, Plaintiffs’ claim for statutory damages is DISMISSED without prejudice.
3.Plaintiffs may file an amended complaint within fourteen (14) days from the date of this Order. Failure to do so on or before that date will result in this case proceeding only on actual damages for Plaintiffs’ RESPA claim.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, this 1st day of December, 2015.