Patricia ROTH, individually and on behalf of a class of borrowers similarly situated, a/k/a Patricia McCarthy, Plaintiff-Appellant, v. CITIMORTGAGE INC., Defendant-Appellee.
No. 13-3839-cv
United States Court of Appeals, Second Circuit.
June 24, 2014
756 F.3d 178
Argued: April 1, 2014.
As to the second claim on appeal—seeking a declaratory ruling that Local Law No. 1 was invalid as a matter of law—the statute was not being enforced against Castine when the district court rendered judgment (about two-and-a-half years after her reinstatement to the Board of Elections). This timing raises substantial question whether that claim was (and/or is) moot. We therefore vacate the judgment and remand to the district court to consider the question of mootness in the first instance. Alternatively, on remand, the district court should consider whether, simply as a matter of discretion, it would be preferable tо decline to exercise supplemental jurisdiction over this novel, complex matter involving the interplay between state and local law, see
CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED in part and VACATED in part and REMANDED.
James C. Schroeder, Mayer Brown LLP, Chicago IL (Therese Craparo, Mayer Brоwn LLP, New York, N.Y., on the brief), for Defendant-Appellee.
Before: WALKER, CHIN, and DRONEY, Circuit Judges.
PER CURIAM:
Defendant CitiMortgage Inc. services a second residential mortgage for plaintiff Patricia Roth. Roth alleges that CitiMortgage‘s responses to requests for information about her mortgage violated the Real Estate Settlement Procedures Act (“RESPA“),
BACKGROUND
Because the district court dismissed Roth‘s claims on the pleadings, we must limit our consideration “to the factual allegations in [the] amended complaint, which are accepted as true, to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiffs’ possession or of which plaintiffs had knowledge and relied on in bringing suit.” Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993).
Since September 2008, Roth has been in default and has made no payments on her second residential mortgage serviced by CitiMortgage. On April 8 and 9, 2011, Roth‘s lawyer sent two nearly-identical letters to CitiMortgage1 requesting many specific pieces of information about her mortgage, each of which stated: “Please treat this letter as a ‘qualified written request’ under the Real Estate Settlement Procedures Act.” CitiMortgage responded to Roth‘s lawyer on April 18, acknowledging the “numerous questions about thе origination and/or servicing of [Roth‘s] mortgage loan,” but noting that “it appears [Roth‘s] immediate concern is obtaining financial assistance.” On June 11, 2011, Roth‘s lawyer sent another letter, which was identical to the two April letters except that it asked to be treated “as a SECOND ‘qualified written request‘” and it stated that CitiMortgage‘s April 18 letter had not complied with RESPA. The three letters from Roth‘s lawyer to CitiMortgage were sent to two addresses: one in O‘Fallon, Missouri,2 and another in Des Moines, Iowa.
After Roth‘s lawyer sent his letters, CitiMortgage sent at least three letters directly to Roth. On July 11, 2011, CitiMortgage sent Roth a packet with a financial information form to determine her eligibility for loan modification programs. On March 14, 2012, CitiMortgage wrote to Roth in response to a complaint she had filed with the N.Y. Department of Financial Services, stating that her allegations of imрroper servicing of her loan were “unsubstantiated” but that CitiMortgage would research and respond to any specific servicing questions. And on April 10, 2012, CitiMortgage sent Roth a notice that her loan was 1322 days in default and that CitiMortgage might commence legal action if the mаtter was not resolved within ninety days.
On May 16, 2012, Roth commenced this action, alleging violations under RESPA, FDCPA, and
We review the dismissal of a complaint under Fed.R.Civ.P. 12(b)(6) de novo, drawing all rеasonable inferences in the plaintiff‘s favor and dismissing only if the complaint does not “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (internal quotation marks omitted). As we explain below, thе district court did not err in dismissing Roth‘s claims under RESPA, FDCPA, or
I. Real Estate Settlement Procedures Act
CitiMortgage‘s duties under RESPA are triggered if it receives a qualified written request (“QWR“), defined as correspondence that identifies a borrower‘s account and “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.”
RESPA is a consumer-protection statute, see Freeman v. Quicken Loans, Inc., — U.S. —, 132 S.Ct. 2034, 2038, 182 L.Ed.2d 955 (2012), and it imposes short timeframes for mortgage servicers to respond to potentially detаiled inquiries.3 To aid servicers with this task of providing consumers with timely information, RESPA‘s implementing regulations allow (but do not require) servicers to establish a designated address for QWRs. See
We agree with the Tеnth Circuit that “Regulation X‘s grant of authority to servicers to designate an exclusive address is a permissible construction of RESPA,”
Roth does not dispute that each of her mortgage statements from CitiMortgage designated a QWR address, or that her lawyer failed to use these addresses. For example, the “Customer Service” section of Roth‘s April and May 2011 statements states:
PURSUANT TO § 6 OF RESPA, A “QUALIFIED WRITTEN REQUEST” REGARDING THE SERVICING OF YOUR LOAN MUST BE SENT TO THIS ADDRESS: CITIMORTGAGE, INC. ATTN: CUSTOMER RESEARCH TEAM, PO BOX 9442, GAITHERSBURG, MD 20898-9442. A “qualified written request” is written correspondence, other than notice on a payment coupon or statement, which includes your name, account number and the reason(s) for the request.
Her March 2012 mortgage statement contains an identical notice but with a new P.O. Box in Hagerstown, Maryland.4 As described above, Roth has alleged that her lawyer sent his requests only to addresses in O‘Fallon, Missouri, and Des Moines, Iowa.
Roth argues that CitiMortgage‘s QWR address notice failed to comply with the obligations of Regulation X in three ways, but none of these arguments have merit.
First, Roth argues that the change in the QWR address on the back of her mortgage statеments and the fact that other departments apparently handled her lawyer‘s letters suggest that CitiMortgage may not have had just one “separate and exclusive office and address for the receipt and handling” of QWRs as required by
Second, Roth argues that the notice on the back of her mortgage statements is not “separately delivered.” But in specifying that notice may be “either included in the Noticе of Transfer or separately delivered,”
Third, Roth argues that notice of CitiMortgage‘s QWR address was insufficient because it was “buried in fine print.” However, CitiMortgage‘s notice clearly specifies in capital letters, and in the same font size as the rest of the information on her mortgage statement, that “A ‘QUALIFIED WRITTEN REQUEST’ REGARDING THE SERVICING OF YOUR LOAN MUST BE SENT TO THIS ADDRESS.” Roth relies on Catalan v. RBC Mortgage Co., No. 05 C 6920, 2008 WL 2741159, at *7 (N.D.Ill. July 8, 2008), in which the district court found notice insufficient when it stated that “[c]ommunication regarding this notice should be sent to” a specified person without providing her address or mentioning RESPA. But
In sum, we conclude that Roth has failed to allege that CitiMortgage did not properly designate a QWR address or that any of her lawyer‘s letters were sent to the designated address. Because Roth‘s lawyer‘s letters are not QWRs, CitiMortgage‘s RESPA duties were not triggered, and therеfore the district court properly dismissed Roth‘s RESPA claims.
II. Fair Debt Collection Practices Act
Roth also alleges that CitiMortgage violated FDCPA provisions that prohibit a “debt collector” from “communicat[ing] with a consumer in connection with the collection of any debt . . . if the debt collector knows the сonsumer is represented by an attorney” and from taking actions to “harass, oppress, or abuse any person in connection with the collection of a debt.”
However, the amended complaint does not allege that CitiMortgage acquired Roth‘s debt after it was in default аnd so fails to plausibly allege that CitiMortgage qualifies as a debt collector under FDCPA. See
III. New York General Business Law § 349
The final count of Roth‘s complaint alleges violations of
IV. Request for Leave to Amend
Finally, Roth argues for the first time on appeal that if we conclude that her claims were properly dismissed, we should grant her leаve to amend her complaint. “The court should freely give leave [to amend] when justice so requires.” Fed.R.Civ.P. 15(a)(2). However, “[w]hen a plaintiff has not moved for leave to amend in the district court, we are ordinarily disinclined to exercise our discretion to grant his belated request on appeal.” Kirsch v. Fleet St., Ltd., 148 F.3d 149, 171 (2d Cir. 1998). Furthermore, leave to amend need not be granted where the proposed amendment would be futile. Williams v. Citigroup Inc., 659 F.3d 208, 214 (2d Cir. 2011) (per curiam). Roth does not propose any specific changes to the complaint beyond adding the exhibits that were inсluded with the original complaint but mistakenly omitted from the amended complaint. However, those exhibits were considered by both the district court and this court, and they are insufficient to save Roth‘s claims. Roth‘s request for leave to amend is denied.
For the reasons stated above, we AFFIRM the judgment of the district court.
PER CURIAM