RACHEL LANDAU v. ROUNDPOINT MORTGAGE SERVICING CORPORATION
No. 17-11151
United States Court of Appeals, Eleventh Circuit
June 11, 2019
D.C. Docket No. 0:16-cv-62795-BB
[PUBLISH]
Appeal from the United States District Court for the Southern District of Florida
(June 11, 2019)
Before ED CARNES, Chief Judge, ROSENBAUM, and HULL, Circuit Judges.
Abraham Lincoln is said to have once posed the following riddle: “If I should call a sheep‘s tail a leg, how many legs would it have?” https://quoteinvestigator.com/2015/11/15/legs/ (last visited May 31, 2019) (quoting What the President Said, Daily Milwaukee News, Sept. 23, 1862, at 1). His answer? “[O]nly four; for my calling the tail a leg would not make it so.” Id. That riddle describes the problem Plaintiff-Appellant Rachel Landau has herе.
Landau‘s home was the subject of an order of foreclosure sale. After that order was entered, Defendant-Appellee RoundPoint Mortgage Servicing Corporation (“RoundPoint“), Landau‘s mortgage-loan servicer, approved Landau for a trial loan-modification plan. Because the previously issued order of sale had set a foreclosure sale during what became Landau‘s six-month trial loan-modification period, RoundPoint filed a motion to reschedule the sale so it would not be held unless Landau failed to comply with her loan-modification plan during the trial period.
Landau sued, pointing to
After careful review, we agree with the district court: a motion to reschedule a previously ordered foreclosure sale is not a mоtion for order of sale any more than a tail is a leg. The language of
I.
We set forth the relevant facts as alleged in Landau‘s complaint, construing them in the light most favorable to her. See Henderson v. Washington Nat‘l Ins. Co., 454 F.3d 1278, 1281 (11th Cir. 2006).
In September 2000, Lаndau entered into an adjustable-rate promissory note that was secured by a mortgage on her residence in Coral Springs, Florida, held by Random Properties Acquisition Corp., III (“Random“). In June 2014, after Landau had become delinquent in her mortgage payments, Random filed a foreclosure action in Florida state court (the “foreclosure action“).
Following the filing of the foreclosure action, Landau attempted to enter а loss-mitigation program in an effort to save her home. Landau was unsuccessful, and the foreclosure action proceeded until Random obtained a “Final Summary Judgment” order in the foreclosure action on February 3, 2016. In addition to entering judgment in favor of Random, the order set a foreclosure sale for Landau‘s property for June 2, 2016. This sale date was continued a number of times because Landau was being evaluated for a loan modification, but the final foreclosure sale was ultimately reset to take place on October 5, 2016.
In the meantime, Landau‘s mortgage loan was transferred to RoundPoint for servicing. With a renewed sense of hope, Landau submitted a loss-mitigation application to RoundPoint. Landau‘s persistence was rewarded.
In early September 2016, RoundPoint sent Landau a letter informing her that she had been approved to “enter into a trial period plan for a mortgage modification.” The plan required Landau to satisfy a schedule of six monthly payments in the amount of $1,721.01, beginning on October 1, 2016. In the letter, RoundPoint also explained that if Landau accepted the offer, RoundPoint would “not refer [her] loan to foreclosure or [would] suspend foreclosure if [her] loan had already been referred.” Landau accepted the offer.
After Landau‘s acceptance, on September 22, 2016, Random filed its “Motion to Cancel October 5, 2016 Foreclosure Sale and Reschedule Foreclosure Sale” in the foreclosure action. The motion noted that a Final Judgment of Foreclosure had been entered in the case on February 3, 2016, and that a foreclosure sale was scheduled to occur on October 5, 2016. Noting that Landau was “in active loss mitigation,” the motion asked the court to “cancel the October 5, 2016 foreclosure sale and reschedule the foreclosure sale to occur no sooner than thirty (30) days from the entry of an Order on said Motion.”
Four days later, Landau responded by filing an emergency “Motion to Cancel Sale” in the foreclosure case. In her motion, Landau informed the foreclosure
Two weeks later, Landau‘s counsel sent RoundPoint a Notice of Error under
Before Landau received a substantive response from RoundPoint, she filed a complaint alleging violations of RESPA, Regulation X, and the Fair Debt Collection Practices Act,
RoundPoint filed a motion to dismiss under
The district court granted RoundPoint‘s motion and dismissed Landau‘s Complaint with prejudice. It concluded that RESPA and Regulation X did not prohibit a request for a foreclosure sale to be rescheduled while the borrower is engaged in a modification plan where the foreclosure judgment and order of sale were entered before the commencement of the modification plan. And since the FDCPA clаim was based on the alleged RESPA violation, the district court dismissed both counts in the Complaint.
Landau now appeals.
II.
We review de novo the district court‘s order granting a motion to dismiss for failure to state a claim, under
III.
For purposes of this appeal, we assume without deciding that the actions of Random, including the filing of the motiоn to reschedule the foreclosure sale, are attributable to RoundPoint. We recognize that RoundPoint disputes this proposition, but because we affirm the dismissal of the Complaint on other grounds, we do not decide this issue.
Once we get past that assumption, the facts of this case are undisputed. This appeal centers on what Regulation X‘s
When we construe regulations, we begin with the language of the regulation, just as we do for statutes. Feaz v. Wells Fargo Bank, N.A., 745 F.3d 1098, 1105-06 (11th Cir. 2014). We evaluate whether the plain language of the regulation unambiguously answers the question at issue when we consider the regulatory language itself, the particular context in which that language appears, and the broader context and purpose of the regulatory scheme as a whole. Id. (citation omitted). If our rеview of the regulatory language unambiguously answers the question at issue, that is the end of the matter, and we do not consider how the
Section 1024.41 of Title 12, C.F.R. contains Regulation X‘s loss-mitigation procedures. Subsection (g) of that regulation, in turn, sets forth prohibitions relating to foreclosure sales:
If a borrower submits a complete loss mitigation application after a servicer has made the first notice or filing required by applicable law for any judicial or non-judicial foreclosure process but more than 37 days before a foreclosure sale, a servicer shall not move for
foreclosure judgment or order of sale, or conduct a foreclosure sale . . . .
The plain language of the regulation provides only that “a servicer shall not move for foreclosure judgment or order of sale, or conduct a foreclosure sale.”
Regulation X does not define “order of sale.” We therefore look to the common usage of the phrase for its meaning. See, e.g., Consol. Bank, N.A., Hialeah, Fla. v. U.S. Dep‘t of Treasury, Office of Comptroller of Currency, 118 F.3d 1461, 1464 (11th Cir. 1997). To assist in that endeavor, we enlist the aid of dictionaries. See CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1223 (11th Cir. 2001).
The word “order” means “[a] command, direction, or instruction.” See Order, Black‘s Law Dictionary (10th ed. 2014). It also means “[a] written direction or command delivered by a government official, esp. a court or judge. The word
generally embraces final decrees as well as interlocutory directions or commands.” Id.
As for “of,” the United States Supreme Court has recognized that commonly, that word can be “used as a function word indicating a possessive relationship.” Bd. of Trustees of the Leland Stanford Junior Univ. v. Roche Molecular Sys., Inc., 563 U.S. 776, 788 (2011) (quoting Webster‘s Third New International Dictionary 1565 (2002); also citing New Oxford American Dictionary 1180 (2d ed. 2005) (defining “of” as “indicating an association between two entities, typically one of belonging“); and Webster‘s New Twentieth Century Dictionary 1241 (2d ed. 1979) (defining “of” as “belonging to“)).
Finally, the word “sale” means the “transfer of propеrty or title for a price.” See Sale, Black‘s Law Dictionary (10th ed. 2014). A “judicial sale“—at least under Florida law (where this foreclosure sale was set to take place)—“has been held not to be final and complete until, confirmed by the trial court.” Allstate Mortg. Corp. of Fla. v. Strasser, 286 So. 2d 201, 202 (Fla. 1973) (citation omitted).
Taking these definitions together, an “order of sale” is a legal document issued by a court that commands or directs property to be sold so that a transfer of ownership of title to the property will occur for a price. Under this definition, we do not view a motion to simply reschedule a foreclosure sale that was previously set in accordance with an already-existing order of sale as the same thing as a motion for
The context of
Landau‘s proposed interpretation of
Here, as we have noted, RoundPoint moved only to reschedule the foreclosure sale, which was already pending because the foreclosure court had entered the foreclosure judgment in the foreclosure case before Landau submitted her application for loan modification to RoundPoint, аnd that judgment included within it an order of sale setting a foreclosure sale. RoundPoint‘s motion did not itself seek the entry of a previously non-existent order of sale.5 Because RoundPoint already
had secured a foreclosure judgment and order of sale before Landau submitted her completed loss-mitigation application,
Nor, as Landau argues, does the Consumer Financial Protection Bureau‘s (“CFPB“) interpretation of Regulation X affect the analysis. First, as we have noted, where, as here, the regulatory language unambiguously answers the question at issue, we do not consider the administering agency‘s interpretation of its regulation. See Lage, 839 F.3d at 1010. And second, even if we did, the CFPB‘s commentary concerning Regulation X‘s prohibition of servicers from moving for foreclosure judgment or order of sale comports with the plain language of the regulation for two reasons.
First, the CFPB suggests that Regulation X prohibits only the filing of dispositive motions, as opposed to non-dispositive motions:
The prohibition on a servicer moving for judgment or order of sale includes making a dispositive motion for foreclosure judgment, such as a motion for default judgment, judgment on the pleadings, or summary judgment which may directly result in a judgment of foreclosure or order of sale.
and that it sought to move full-steam ahead with the foreclosure sale. The language of RoundPoint‘s motion demonstrates this is not accurate.
See Mortgage Servicing Rules Under the Real Estate Settlement Procedures Act (Regulation X), 78 Fed. Reg. 10,696, 10,897 (Feb. 14, 2013) (emphasis added). But as we have noted, a motion to reschedule is not a dispositive motion. So Regulation X does not prohibit the filing of such a motion by a servicer.
Second, RoundPoint‘s suspension of foreclosure proceedings when it filed its motion to reschedule was consistent with the CFPB‘s discussion of the propriety of suspending a sale during a trial modification plan. The CFPB explained that “it is appropriate to suspend a foreclosure sale when a borrower is performing under an agreement on a loss mitigation option.” See Mortgage Servicing Rules Under the Real Estate Settlement Procedures Act (Regulation X), 78 Fed. Reg. at 10,833 (emphasis added). The CFPB has also stated, “[I]t is already standard industry practice for a servicer to suspend a foreclosure sale during any period where a borrower is making payments pursuant to the terms of a trial loan modification.” Id. And the CFPB has commented that, under the regulation, “it is a covеred error for a servicer to fail to . . . suspend a foreclosure sale when, for example, the borrower is performing under a loss mitigation agreement.” Id. at 10,847.
“To suspend” means “[t]o hold in abeyance; defer . . . .” See Suspend, The American Heritage Dictionary of the English Language (5th ed. 2011). That is very different from canceling something altogether, like Landau asserts RoundPoint should have done with the previously existing order of sale. “To cancel” means “[t]o
annul or invalidate . . . .” See Cancel, The American Heritage Dictionary of the English Languаge (5th ed. 2011). The CFPB‘s discussion unambiguously contemplates “suspen[sion],” not cancellation, of a foreclosure sale when a borrower is performing under a loss-mitigation agreement.
Here, as we have noted, RoundPoint suspended the foreclosure proceedings when it filed its motion to reschedule. RoundPoint also informed the court that a loss-mitigation plan was pending. Significantly, the foreclosure sale did not take place. And although RoundPoint sought for the court to reschedule the foreclosure sale for a future date, it still asked the court to delay the sale pending the outcome of the trial loss-modification plan. That outcome is consistent with how the CFPB intended Regulation X to operate.
IV.
In short, we agree with the district court that Landau failed to state a claim for
AFFIRMED.