MEMORANDUM AND ORDER
7. INTRODUCTION
Plаintiffs John J. O’Connor and Katherine P. O’Connor have filed suit against Nantucket Bank, a division of Sovereign Bank, N.A.,
77. STANDARD OF REVIEW
To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
The “tenet that a court must accept as true all of the allegations contained in a
This case largely revolves around the content of various letters not attached to the complaint. Rather, Defendants submitted them in connection with the motion to dismiss.
Because the authenticity of these letters has not been disputed, the letters were extensively referred to in the complaint, and Plaintiff has not objected, the court will consider the letters.
III. FACTUAL BACKGROUND
The following facts, culled from the complaint and letters, are assumed to be true for the purpose of this motion to dismiss.
On July 6, 2007, John and Katherine O’Connor received a residential loan from Nantucket Bank, a division of Sovereign Bank, N.A., to purchase their home in Nantucket, Massachusetts. Compl. ¶ 7. On June 20, 2011, the law firm Cohn & Dussi, LLC, made a demand for a debt allegedly due to Nantucket Bank under the loan on the property. Compl. ¶ 11. By a letter dated June 27, 2011, the O’Connors’ attorney Jamie Ranney informed Cohn & Dussi that the O’Connors disputed the debt, asked for debt validation, and requested that Cohn & Dussi not contact the O’Connors directly. Compl. ¶ 12. By a letter dated July 1, 2011, Cohn & Dussi replied, stating that “other counsel” was
On October 7, 2011, Attorney Ranney sent Nantucket Bank a “Qualified Written Request” (“QWR”) under the Real Estate Settlement Procedures Act (“RESPA”). The request was 21 pages long and stated in its introduction: “This letter is being sent to complain about the accounting and servicing of this mortgage and our client(s)’ need for understanding and clarification of various sale, transfer, funding source, legal and beneficial ownership, charges, credits, debits, transactions, reversals, actions, payments, analyses and records related to the servicing of this account from its origination to the present date.” Mot. to Dismiss, Tanner-Butler Deck, Ex. 1. The letter goes on to request copies of 30 various types of documents (for example, the twelfth requested document was “Any and all ‘Release of Interest’ agreement(s) between the nominal lender at the loan closing and any party or parties who could claim an interest in the loan closing or documents pertaining thereto and any GSE or other party.”) Id. at 6-8. Further, the letter includes ten additional categories of specifically requested information; each category contains multiple enumerated questions. Id. at 8-18. In total, these ten categories contain approximately 140 additional questions. Id.
A Nantucket Bank letter to Attorney Ranney dated November 1, 2011, stated: “On October 12, 2011 we received your correspondence dated October 7, 2011 ... We are currently conducting an investigation into your request and will provide you with a response within the allowable time frame.” Mot. to Dismiss, Tanner-Butler Deck, Ex. 2. By letter dated December 27, 2011, Nantucket Bank responded again with a cover letter stating, “To the extent that your letter identifies what you believe to be an error in your account or seeks specific information concerning the servicing of your loan, this response treats your letter, or those portions of your letter, as a qualified written request under RESPA.” Mot. to Dismiss, Tanner-Butler Deck, Ex. 3. The letter enclosed four documents, including: a copy of the note and mortgage the O’Connors signed, the O’Connors’ loan history, a copy of the loan modification documents executed by the O’Connors on or about November 3, 2010, and a copy of an appraisal for the property dated September 5, 2011. Id. The letter also stated, “To the extent that your letter requests information that is overly broad, vague, onerous and/or burdensome, we have not provided a response to such items, as we consider these requests to be improper requests and outside of the scope of what is intended to be covered under a qualified written request. If you provide us with a more narrow and specific request, we will consider your request and respond accordingly.” Id.
On April 9, 2012, Nantucket Bank conducted a non-judicial foreclosure sale of the home. Compl. ¶32. On April 13, 2012, Attorney Hayes sent the O’Connors a “notice to vacate” demanding that they vacate the property within 30 days. Compl. ¶ 33-36; Mot. to Dismiss, Deck Stephen P. Hayes, Ex. 4. The notice to vacate stated that the O’Connors “are liable for use and occupation at $200 per day from May 1, 2012.” Id. The notice also included a “Notice of Important Rights” under the FDCPA. Id. The Notice of Important Rights states that “Hayes & Hayes, Attorneys at Law, P.C. is acting as a debt collector, pursuant to the federal [FDCPA].” Id.
In the time between Attorney Ranney’s May 17 letter and Attorney Hayes’ June 15 response, Sovereign Bank filed a summary process eviction action in Nantucket District Court against the O’Connors. Compl. ¶ 56. Filed on June 4, 2012, the eviction action included a demand for $9,600 in use and occupancy fees. Compl. ¶ 58. On June 5, 2013, the eviction case went to trial in Nantucket District Court. The Judge ruled in favor of the O’Connors on possession on the ground that Nantucket had failed to introduce into evidence documents that were statutory prerequisites to foreclosure. Trial Tr. at 166:3-167:7, Sovereign Bank v. O’Connor, No. 1288-SU-0013, (Nantucket District Court June 5, 2013).
On April 19, 2013, Plaintiffs filed the present complaint in the Massachusetts Superior Court for Nantucket County. On June 6, 2013, Defendants removed this case to federal court. Defendants now move to dismiss the complaint in its entirety. (Docket No. 8). The Court held a hearing on the motion to dismiss on September 12, 2013.
IV. DISCUSSION
A. Count One: Fair Debt Collection Statute
1. April 13 Letter
Plaintiffs allege that all three defendants violated the Fair Debt Collection Practices Act by demanding $200 per day in use and occupancy payments in their April 13, 2012, letter. This demand, Plaintiffs argue, was simply “made up” and was an “outrageous” attempt to “intimidate the O’Connors into leaving their home without going through the judicial eviction process.” Pls.’ Opp. at 7-8; Cоmpl. ¶ 50, 52. Defendants argue that the FDCPA does not apply to demands for anticipated or future payments as they do not constitute “debt” under the statute.
A viable claim for violation of the FDCPA requires that a plaintiff establish three elements: “(1) that she was the object of collection activity arising from consumer debt, (2) defendants are debt collectors as defined by the FDCPA, and (3) defendants engaged in an act or omission prohibited by the FDCPA.” Som v. Daniels Law Offices, P.C.,
The Notice to Vacate the O’Connors received was dated April 13, 2012, and made clear that the O’Connors would incur liability for use and occupancy fees starting May 1, 2012. Therefore, at the time they received the letter, the O’Connors had no existing obligation to pay Sovereign Bank any such fees. See Udell v. Kansas Counselors, Inc.,
2. Eviction Action
The complaint also alleges that the subsequent court action attempting to enforce Defendants’ demand for use and occupancy payments was a violation of the FDCPA. Plaintiffs allege that “defendants knowingly misstated the amounts allegedly due on the summary process summons and complaint as a further effort to coerce, intimidate and exert economic pressure on the O’Connors to vacate the premises without judicial process and before any trial.” Compl. ¶ 62. Under § 1692e of the FDCPA, “[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt,” including “[t]he false representation of ... the character, amount, or legal status of any debt”. § 1692e(2)(A). Further, “[a] debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.” § 1692d.
The restrictions of the FDCPA only apply to those defendants who meet the definition of “debt collector.” Under the statute, a debt collector is “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of debts, or who regularly collects or attеmpts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” § 1692a(6). In both the April 13 letter and the summary process eviction action, Sovereign Bank sought
The same cannot be said for Attorney Hayes and Hayes & Hayes, who filed the summary process action in order to obtain payment of funds allegedly due to Sovereign Bank. The Supreme Court has held that an attorney, who “regularly” through litigation tries to collect consumer debts may be a “debt collector” under the FDCPA. See Heintz v. Jenkins,
Where a Defendant is established as a debt collector and is alleged to have engaged in an act or omission prohibited by the FDCPA, all that remains is for the plaintiff to show “she was the object of collection activity arising from consumer debt.” Som,
The Supreme Court in Heintz held that the FDCPA “applies to the litigating activities of lawyers,” Heintz,
District courts have reached varying conclusions on whether eviction actions
The law remains unsettled in this area, and courts’ decisions regarding the applicability of the FDCPA to eviction actions have thus far been especially fact-sensitive. A synthesis of the existing cases that address the question suggests that an eviction action can implicate the FDCPA, particularly where the eviction action includes some demand for payment tied to the property at issue (e.g. a utility bill, or damages for unpaid rent). Here, Defendant Hayes sought to collect $9,600 in use and occupancy fees for Sovereign Bank by making an allegedly outrageous demand for payment in the post-foreclosure eviction complaint served upon Plaintiffs. Accordingly, Plaintiffs have sufficiently alleged that Defendant Hayes and Hayes & Hayes violated the FDCPA by filing the eviction action and misstating the owed amount of use and occupancy fees in its demand.
As to Sovereign Bank, Count One is dismissed in its entirety. As to Attorney Hayes and Hayes & Hayes, Count One is dismissed with respect to the April 13 letter, but not with respect to the demand for use and occupancy fees in the post-foreclosure eviction litigation.
3. Mass. Gen. Laws ch. 93, § 49
The state counterpart to the federal Fair Debt Collection Practices Act, Mass. Gen. Laws ch. 93, § 49, titled “Debt collection in an unfair, deceptive or unreasonable manner”, provides generally that “[n]o one who is a creditor or an attorney for a creditor, or an assignee of a crеditor, of a natural person present or residing in Massachusetts who has incurred a debt primarily for personal, family or household purposes shall collect or attempt to collect such debt in an unfair, deceptive or unreasonable manner.” Mass. Gen. Laws ch. 93, § 49.
B. Count Three: RESPA Violation
Plaintiffs allege that Nantucket Bank violated the Real Estate Settlement Procedure Act by failing to respond to their October 7, 2011 letter, which was self-identified as a “qualified written request.” In the letter, Plaintiffs’ requested, among other things, that the bank provide copies of 30 documents and that the bank respond to ten enumerated categories of questions, which totaled around 140 specific requests for information. Defendants argue that this claim should fail for two reasons. First, Defendants assert that Plaintiffs October 7 letter did not constitute a qualified written request (“QWR”)under RESPA. Second, even if the letter did constitute a written request, Defendants argue that their November 1, 2011, acknowledgment of the letter and December 27, 2011, response constituted a sufficient rеply that satisfied RE SPA’s requirements. Plaintiffs dispute that Defendant’s response was adequate, arguing that it was deficient in two respects: first, defendants failed to specifically answer the approximately 140 enumerated questions and second, defendants failed to provide a key for the Plaintiffs to use to interpret their loan payment history information.
1. RESPA Requirements
RESPA requires the servicer of a federally-related mortgage loan to respond to certain borrower inquiries, which the statute terms “qualified written requests.” 12 U.S.C. § 2605 (2012). Under RESPA, a qualified written request: “shall be a written correspondence, other than notice on a payment coupon or other payment medium supplied by the servicer, that — (i) includes, or otherwise enables the servicer to identify, the name and account of the borrоwer; and (ii) includes a statement of the reasons for the belief of the borrower, to the extent applicable, that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower.” 12 U.S.C. § 2605(e)(1)(B). Under RESPA’s definitions, a servicer is “the person responsible for servicing of a loan (including the person who makes or holds a loan if such person also services the loan)” and the term “servicing” means “any scheduled periodic payments from a borrower pursuant to the terms of any loan, including amounts for escrow accounts described in section 2609 of this title, and making the payments of principal and interest and such other payments with respect to the amounts received from the borrower as may be required pursuant to thе terms of the loan.” § 2605(i)(2)-(3).
If a borrower’s correspondence constitutes a QWR, certain obligations attach to the servicer’s response. First, the servicer must acknowledge receipt of the QWR within twenty business days. § 2605(e)(1)(A).
In its response, “the servicer shall—
(A) make appropriate corrections in the account of the borrower, including the crediting of any late charges or penalties, and transmit to the borrower a written notification of such correction (which shall include the name and telephone number of a representative of the servicer who can provide assistance to the borrower);
(B) after conducting an investigation, provide the borrower with a written explanation or clarification that includes— (i) to the extent applicable, a statement of the reasons for which the servicer believes the account of the borrower is correct as determined by the servicer; and (ii) the name and telephone number of an individual employed by, or the office or department of, the servicer who can provide assistance to the borrower; or
(C) after conducting an investigation, provide the borrower with a written explanation or clarification that includes— (i) information requested by the borrower or an explanation of why the information requested is unavailable or cannot be obtained by the servicer; and (ii) the name and telephone number of an individual employed by, or the office or department of, the servicer who can provide assistance to the borrower.
12 U.S.C. § 2605(e)(2)
Failure to comply with RESPA requirements renders the servicer “liable to the borrower for each such failure ... [i]n the ease of any action by an individual, an amount equal to the sum of — (A) any actual damages to the borrower as a result of the failure; and (B) any additional damages, as the court may allow, in the case of a pattern or practice of noncompliance with the requirements of this section, in an amount not to exceed $2,000.” § 2605(f). To make out a claim under § 2605(e), a plaintiff must allege sufficient facts to “show: (1) that the servicer failed to comply with the statute’s [qualified written request] rules; and (2) that the plaintiff incurred ‘actual damages’ as a consequence of the servicer’s failure.” Jones v. Bank of New York, CIV.A. 12-11503-RWZ,
2. Was the October 7, 2011 Letter a Qualified Written Request?
Defendants argue that the October 7, 2011, letter was so over-broad and burdensome that it failed to qualify as a QWR under RESPA and that consequently, none of the Bank’s obligations to respond were triggered upon its receipt. The O’Connors concede that some of the requests in their letter “had no obvious relevance to their loan” but argue that the letter still constituted a QWR since “[m]ost of the requests ... clearly related to the ‘servicing’ of the O’Connors’ loan under their mortgage with Nantucket Bank.” Pis.’ Opp. at 12-13.
Under RESPA, in order to constitute a Qualified Written Request, a communication must “include[ ] a statement of the reasons for the belief of the borrower, to the extent applicable, that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower.” 12 U.S.C. § 2605(e)(1)(B). The Seventh and Ninth Circuits have interpreted this scope of this provision liberally, stating that a QWR
The Ninth Circuit, however, made clear that: “the third of those requirements— that the letter must request information relating to servicing — ensures that the statutory duty to respond does not arise with respect to all inquiries or complaints from borrowers to servicers.... ‘Servicing,’ so defined [under RESPA], does not include the transactions and circumstances surrounding a loan’s origination-facts that would be relevant to a challenge to the validity of an underlying debt or the terms of a loan agreement. Such events precede the servicer’s role in receiving the borrower’s payments and making payments to the borrower’s creditors. Perhaps for that reason, Congress drafted the statute so as not to include those matters.” Id. So, while a the form of the request may be construed somewhat liberally, the substance of that request must pertain specifically to servicing in order to trigger an obligation to respond under RESPA.
That brings the Court to the question: to what extent does an over-inclusive request for both servicer- and non-servicerrelated information constitute a QWR under RESPA? The caselaw on this question is evolving. At least at the district level, many courts have held that even overbroad requests may constitute a valid QWR to the extent that they contain servicer-related questions. See Kassner v. Chase Home Fin., LLC, CIV.A. 11-10643-RWZ,
Here, Plaintiffs’ blitzkrieg approach of lobbing 140 specific requests at the bank
3. The Bank’s December 27 Response under RESPA
Plaintiffs do not contest the timeliness of Defendants’ response to their request. The Bank acknowledged receipt of the October 7 letter on November 1, 2011, and followed up on December 27, 2011, with a more comprehensive response within the statutory time-frame under § 2605(e)(2). Rather, Plaintiffs contend that the Bank’s Decеmber 27 response was deficient because it did not specifically respond to the 30 requests for documents and approximately 140 questions related to the loan, and Defendants did not include a key to interpret Plaintiffs’ loan history.
In a similar case, Kassner,
This case is distinguishable from Kassner. Here, not only did the Bank provide Plaintiffs’ loan history and a contact person at the Bank, the Bank also included a copy of the Note and Mortgage, copies of loan modification documents the plaintiffs executed, and a recent appraisal of the Property. Further, the Bank offered additional information if the Plaintiffs clarified their request, .stating explicitly in the cover letter: “If you provide us with a more narrow and specific request, we will consider your request and respond accordingly.” Mot. Dismiss, Tanner-Butler Deck Ex. 3. It is true that thе bank did not provide a key to interpret the loan history, and it was not self explanatory. Nonetheless, Plaintiffs have not alleged that they followed up with the bank after receiving the December 27 letter to get a better explanation, nor have they asserted that they made any good faith effort to narrow their request. In fact, at oral argument this Court requested that Plaintiffs narrow down for the court which specific questions they felt entitled them to a response. Plaintiffs’ counsel has failed to do so.
Given the Bank’s response to an overly broad information request, the Court finds that the Bank complied with its requirements under RESPA. Therefore, the Court hereby dismisses Count Three with prejudice.
C. Count Two: Massachusetts General Law Chapter 93A
The O’Connors assert that defendants Nantucket Bank, Hayes &
As to Nantucket Bank, the O’Connors pleaded both that the bank engaged in unfair or deceptive conduct and that the bank engaged in commerce. Compl. ¶ 9, 31, 52, 54. Plaintiffs failed, however, to specifically allege that they sent a demand letter to Nantucket Bank. See Epps v. Bank of America, N.A., No. 12-1282,
As to the attorney defendants, Attorney Hayes and Hayes & Hayes, Plaintiffs satisfied Chapter 93A’s demand letter requirement. Compl. ¶ 52, 54. However, the O’Connors failed to plead that either Hayes & Hayes or Attorney Hayes was engaged in trade or commerce, a required element of a Chapter 93A claim. See Klairmont, 465 Mass, at 174,
When a non-client asserts a chapter 93A claim against an attorney, the attorney must have been acting in a business context vis-a-vis plaintiffs. McDermott,
V. ORDER
As to Count One, against Attorney Hayes and Hayes & Hayes, P.C., defendants’ Motion to Dismiss is DENIED in relation to the post-foreclosure eviction action, and ALLOWED in relation to the April 13 letter. As to Sovereign Bank, the Motion to Dismiss is ALLOWED in its entirety as to Count One. As to Counts Two and Three, the Court ALLOWS the Motion to Dismiss for all defendants.
Notes
. On October 23, 2013, Nantucket Bank notified the Court that as of October 17, 2013, Sovereign Bank officially changed its name to Santander Bank, N.A. (Docket No. 27). For consistency and simplicity’s sake, the Court refers to the parties as they were originally named in the pleadings.
. Specifically, Defendants included the following in their motiоn to dismiss: a copy of a letter dated October 7, 2011, addressed to Nantucket Bank and signed by attorney Jamie Ranney, a letter dated November 1, 2011, addressed to Jamie Ranney and signed by Emily Hamilton, Vice President of Operations at Nantucket and a letter dated December 27, 2011, addressed to Jamie Ranney and signed by Emily Hamilton. These letters were attached to a declaration of Zona V. Tanner-Butler, Market Executive of Nantucket Bank, for the purpose of authenticating the documents. Defendants also included a copy of the Notice to Vacate dated April 13, 2012, addressed to the O’Connors and signed by attorney Hayes as attorney for Sovereign Bank, N.A., and a copy of a letter dated May 17, 2012, addressed to attorney Hayes and signed by Jamie Ranney. These lеtters were attached to a declaration of Stephen Hayes.
. Despite both parties’ repetitive citation to the “Massachusetts Fair Debt Collection Practices Act’’, there is no statute with that name under Massachusetts law.
. The Dodd-Frank Wall Street Reform and Consumer Protection Act shortened the amount of time given to mortgage servicers to respond to borrower inquiries. That change took effect on January 21, 2013. See Pub. L. No. 111-203 § 1463(c), 124 Stat. 1376 (2010).
. Specifically, the bank included: an ARM Mortgage Loan Disclosure Statement, Notice of the Right to Cancel statements, Truth in Lending Disclosure Statement and HUD 1-Settlement Statement. Kassner,
. Mass. Gen. Laws ch. 93A, § 9(3) provides that ‘‘[a]t least thirty days prior to the filing of any such action, a written demand for relief, identifying the claimant and reasonably describing the unfair or deceptive act or practice relied upon and the injury suffered, shall be mailed or delivered to any prospective respondent.”