United States District Court, S.D. Ohio, Eastern Division
Elizabeth P. Deavers Chief Magistrate Judge
OPINION AND ORDER
D. MORRISON UNITED STATES DISTRICT JUDGE.
2, 2018, Plaintiff Elizabeth Cameron filed a Complaint
alleging, among other things, that Defendant Ocwen Loan
Servicing, LLC, (“Ocwen”) had violated Real
Estate Settlement Procedures Act (“RESPA”)
Regulation X (Count Three). (Compl., at 12-14, 16-18, 21-24,
ECF No. 1.) Specifically, Ms. Cameron alleged that she had
sent Ocwen a Notice of Error (“NOE”) and that
Ocwen's response had been statutorily deficient.
(Id. ¶¶ 101-06.) Plaintiff requested
actual and statutory damages, costs, and attorney's fees
as a result of the alleged RESPA violation. (Id.
¶¶ 112-14.) Subsequently, Ocwen made a Motion for
Summary Judgment on Count Three, which relied almost entirely
on the argument that Ocwen had responded to Ms. Cameron's
NOE in compliance with Regulation X. (ECF No. 27, at 12-15.)
Ms. Cameron opposed the motion (ECF No. 28) but did not
request summary judgment herself.
Court subsequently ordered Ocwen, pursuant to Rule 56(f)(1),
to provide evidence as to why the Court should not grant
summary judgment in favor of Ms. Cameron on Count Three.
Cameron v. Ocwen Loan Servicing, LLC, No.
2:18-CV-428, 2019 WL 6020585, at *9 (S.D. Ohio Nov. 14,
2019). Ocwen has filed a statement as to why it did not
believe summary judgment was appropriate (ECF No. 36), and
Ms. Cameron filed a statement in support of summary judgment
(ECF No. 38).
repeat the key facts, Defendant Deutsche Bank National Trust
Company (“Deutsche”), the noteholder on Ms.
Cameron's mortgage, sought to foreclose on Ms.
Cameron's home (the “Foreclosure Action”).
See Cameron, 2019 WL 6020585, at *1. Ms. Cameron
subsequently sought to enter into various modifications of
her mortgage payments (the “Modifications”),
including a modification in December 2010 (the
“December 2010 Modification”), with Ocwen, her
loan servicer. See Id. at *1-4. After Ocwen began to
reject Ms. Cameron's mortgage payments, counsel for Ms.
Cameron sent a letter to Ocwen in November 2013 alleging that
Ocwen was not complying with the Modifications. (ECF No.
1-12, at 27.) Ocwen responded that it could find no record of
an executed modification. (Howard Handville Dep., 43:5-14,
ECF No. 30-1.)
February 5, 2018, counsel for Ms. Cameron, Whitney Kaster,
sent an NOE to Ocwen. (ECF No. 1-13.) On April 17, 2018,
counsel for Ocwen, Sarah Wilson, timely responded to Ms.
Kaster (the “Response Letter”). (ECF No. 1-16.)
On May 22, 2018, the Foreclosure Action was terminated,
although the reason why is not entirely clear. (ECF No.
27-16, at 1.)
detailed in the Court's November Opinion and Order, Ocwen
was obligated to comply with § 1024.35(e)(1) in crafting
its Response Letter. Cameron, 2019 WL 6020585, at
*8. Accordingly, the Response Letter should have either
corrected the identified error or contained the following
information: 1) a statement that Ocwen had determined that no
error occurred, 2) a statement of the reason(s) for this
determination, and 3) a statement of the borrower's right
to request the documents relied upon by Ocwen in reaching
this determination, along with 4) information on how to do so
and 5) contact information, including a phone number.
continues to insist that its Response Letter met these five
requirements. (ECF No. 36, at 4-5.) It indisputably did not.
Principally, the Response Letter did not state that no error
occurred. (ECF No. 1-16.) It merely stated that an
investigation was ongoing. (Id.) The Response Letter
stated that Ocwen had been unable to locate a signed copy of
the December 2010 Modification, (id.), but that does
not categorically establish that an error had not occurred.
If anything, it demonstrates Ocwen's concern that an
error may actually have occurred. Nor can it be said
that such a statement provides a reason for Ocwen's
“determination” when it is apparent that Ocwen
failed to make any determination at all. The Response Letter
also did not state that Ms. Cameron had a right to request
documents from Ocwen, and, in fact, it requested documents of
Ms. Cameron. It did not provide information on how to request
documents. (Id.) The Response Letter did include
what appears to be Ms. Wilson's phone number.
(Id.) Accordingly, the Court finds that the Response
Letter did not comply with the first four of these five
requirements one and two, Ocwen argues that the Response
Letter stated “that there is no evidence that the
alleged errors occurred” and says that the failure to
find a signed copy of the December 2010 Modification was the
asserted reason for that “determination.” (ECF
No. 36, at 4.) In the first instance, that is not what the
Response Letter says. In relevant part, the Response Letter
Please be advised that Ocwen's investigation of the above
issues is ongoing, as Ocwen has been unable to determine why
[the Modifications] were not implemented by [the prior loan
servicer], and why the Loan was not boarded with Ocwen as
modified by [the December 2010 Modification]. As of the date
of this correspondence, Ocwen has been unable to locate a
signed copy of [the December 2010 Modification], nor has
Ocwen been able to locate any Order entered by the Bankruptcy
Court approving [the December 2010 Modification] to be
implemented by [the prior loan servicer].
(ECF No. 1-16.) The Response Letter never stated-or even
implied-that no error occurred. It merely stated that Ocwen
had been unable to find any information as to the
circumstances surrounding the Modifications. But §
1024.35(e)(1) demands a determination. An expression
of uncertainty, as here, is entirely the opposite of a
determination. Ocwen cites no case law to support its
contention that such dithering can satisfy a mortgage
servicer's obligations under Regulation X. The Court is
not persuaded that it can, particularly because RESPA, as a
remedial statute, “is construed broadly to effectuate
its purposes.” Marais v. Chase Home Fin. LLC,
736 F.3d 711, 719 (6th Cir. 2013) (per curiam).
Ocwen acknowledges that its Response Letter never
“directly state[d]” that Ms. Cameron could
request the documents relied upon by Ocwen in reaching its
“determination” and never provided information on
how to do so. (ECF No. 36, at 4.) It insists that this is
because “there are no such documents to obtain.”
(Id.) That is nonsense. Regulation X demands that a
loan servicer provide documents on which it relies,
not just documents that might support a borrower's
stating that “Ocwen has been unable to locate a signed
copy of” the December 2010 Modification, Ocwen
acknowledges, as it must, that it looked somewhere to locate
such a document, perhaps a database or a file. These are
“document[s]” on which Ocwen relied in reaching
its “determination, ” assuming the Response
Letter can be classified as such. Ocwen also has provided in
this litigation unsigned copies of the December 2010
Modification, additional documents that it no doubt relied on
in responding to the NOE. If indeed Ocwen searched high and
low to find signed modification documents but came up empty,
it could have provided-indeed was legally obligated to
provide-documentary evidence from this search.
even though Ocwen's Response Letter was deficient,
“not all RESPA violations are actionable.”
Ranger v. Wells Fargo Bank N.A., 757 Fed.Appx. 896,
901 (11th Cir. 2018). Ms. Cameron must prove 1) that she
suffered actual damages and 2) that those damages were caused
by Ocwen's violation. See id.; 12 U.S.C. §
2605(f)(1) (2018) (providing for actual damages “as a
result of” a servicer's failure to comply with the
statute). Ms. Cameron contends that she did suffer damages as
a result of Ocwen's deficient Response Letter.