Loewy v. CMG Mortg., Inc.
Loewy v. CMG Mortg., Inc.
Opinion of the Court
ORDER GRANTING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [Dkt. 32];
ORDER REMANDING CASE
Honorable Larry Alan Burns, Chief United States District Judge *1085Currently before the Court is Defendant CMG Mortgage, Inc.'s motion for summary judgment. Dkt. 32. That motion is GRANTED as to Plaintiffs' federal claims. The state claims are REMANDED to San Diego County Superior Court.
BACKGROUND
In August 2013, Plaintiffs Arthur and Viridiana Loewy obtained a secured residential mortgage loan that was serviced by Defendant CMG Mortgage, Inc. See Loewy Decl., Dkt. 33-1, at ¶¶ 3, 5. The Loewys missed several mortgage payments over the following years, although the parties disagree about the number of payments missed and the total arrearages owed. See id. at ¶ 4; Kelbaugh Decl., Dkt. 32-2, at ¶ 5. In early 2015, the Loewys first applied to CMG for a mortgage modification. See Kelbaugh Decl. at ¶ 6. Around this same time, the Loewys also applied to Keep Your Home California ("KYHC"), a state program designed to assist delinquent homeowners at risk of foreclosure. See Loewy Decl. at ¶¶ 8-10. In July 2015, KYHC approved the Loewys' application for mortgage assistance and sent $100,000 to CMG to be applied to the Loewys' loan. Id. at ¶ 12.
CMG informed the Loewys that, under the KYHC guidelines, the use of these funds was contingent on the parties entering into a loan recast or modification agreement, and that the funds must first be applied to arrearages, with the balance going to principal. See Kelbaugh Decl. at ¶ 8. Over the next year, the parties went back and forth regarding various potential modifications. One of the key problems, at least according to CMG, was that the Loewys' loan was federally insured by the Federal Housing Administration ("FHA"). See id. at ¶¶ 12-13. The requirements imposed by KYHC (on how the funds must be applied) combined with the requirements of the FHA (on the terms of any recast or modification) made it unusually difficult to come up with a modification that was palatable to all parties involved. Id. For example, CMG notified the Loewys on August 12, 2016 that they were ineligible for an FHA standard modification because "[their] income is insufficient to qualify for any foreclosure alternative programs," and that they did not qualify for an FHA home affordable modification because their "housing expense to income ratio ... does not meet the requirement for a loan modification." See id. at Ex. 9. Further complicating matters, the Loewys objected to the way CMG sought to apply the KYHC funds. Arguing that it was bound by the KYHC guidelines, CMG conditionally applied the $100,000 first to arrearages owed, with the balance (roughly $70,000) going to principal. See id. at ¶ 9. The Loewys argued that all the KYHC funds should go to principal reduction, or, at a minimum, that CMG was misrepresenting the arrearages actually owed. See id. at ¶¶ 10-12. And if all that wasn't enough, the Loewys went into Chapter 7 bankruptcy in August 2016, which hampered CMG's ability to modify the loan for the duration of the bankruptcy proceedings. See id. at ¶ 15.
In an attempt to streamline matters, CMG purchased the Loewys' FHA loan from its original owner, Ginnie Mae, in October 2016, purportedly so that it could offer the Loewys additional recast/modification options not available under the FHA regulations. See id. at ¶ 17. But the parties were still unable to reach a mutually *1086acceptable agreement as to how the loan should be modified and how the KYHC funds should be applied. Once the deadline for applying the KYHC funds passed in late 2016 and the parties were still unable to reach an agreement, CMG returned the money to KYHC. The KYHC program is now closed and the Loewys claim they are ineligible to receive any further funds. See Loewy Decl. at ¶ 37. The Loewys have made no further mortgage payments, but CMG has not foreclosed on the property. See Kelbaugh Decl. at ¶ 21.
The Loewys brought this suit in San Diego Superior Court in January 2017, alleging four causes of action against CMG: (1) violation of the federal Real Estate Settlement Procedures Act ("RESPA"), (2) violation of the federal Truth in Lending Act ("TILA"), (3) negligence, and (4) violation of California's Rosenthal Act. See Complaint, Dkt. 1-2. CMG timely removed the case to this Court.
ANALYSIS
CMG moves for summary judgment on each of the Loewys' four causes of action. For the reasons below, that motion is granted as to the two federal claims, but the Court declines to exercise supplemental jurisdiction over Plaintiffs' state claims and therefore does not reach the merits of those claims.
1. RESPA
Plaintiffs allege that CMG violated RESPA by failing to provide loan servicing information in response to two qualified written requests ("QWR") that they sent to CMG. Because CMG complied with RESPA's requirements in responding to Plaintiffs' QWRs, summary judgment is warranted.
RESPA requires loan servicers like CMG to respond to certain correspondence (i.e., QWRs) from borrowers.
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 borrower; 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.
Although the Ninth Circuit hasn't weighed in on the issue, the two circuits that have-the Second and Tenth Circuits-each have held that a servicer's obligation to respond to a QWR isn't triggered unless the QWR is sent to the address the servicer has designated for receipt and handling of QWRs. See Berneike v. CitiMortgage, Inc. ,
The Loewys sent CMG two documents they contend were valid QWRs that triggered CMG's duty to respond under RESPA. The first was an email sent to CMG on or about September 8 or 9, 2016, while the Loewys were in bankruptcy. See Joint Statement of Undisputed Fact ("SUF"), Dkt. 34, at ¶ I.1. The second was a letter sent to CMG on October 20, 2016. See
It's undisputed that the Loewys did not send the original email to CMG's designated QWR address,
But regardless of whether the QWRs were properly perfected, the undisputed evidence shows that CMG timely responded under RESPA, so summary judgment is warranted. The Loewys' original email was sent on September 8, 2016, meaning that CMG had at least until October 21, 2016-or 30 business days-to either respond to the QWR or request a 15-day extension. See
Finally, even if CMG's actions did violate RESPA, summary judgment would still be warranted because the Loewys have not shown any damages causally linked to CMG's alleged delays in responding to the QWRs. The failure to provide evidence of actual damages resulting from an alleged violation is fatal to a RESPA claim. Cf. Kitty Yinling Zhang v. Countrywide Home Loans, Inc. ,
Because CMG's actions were consistent with RESPA and because Plaintiffs have failed to demonstrate any damages causally linked to CMG's alleged RESPA violations, CMG's motion for summary judgment as to this claim is GRANTED .
2. TILA
The Loewys allege that CMG violated the TILA when it stopped sending required monthly loan statements after the Loewys went into bankruptcy. Summary judgment is warranted against the Loewys on this claim for the simple reason that the TILA's provisions do not apply once a borrower goes into bankruptcy. While a mortgage servicer is generally required to provide a borrower with a "periodic statement ... for each billing cycle," a servicer becomes "exempt from the[se] requirements" if "any consumer on the mortgage loan is a debtor in bankruptcy."
The Loewys argue that even if CMG wasn't required to send periodic statements while they were in bankruptcy, it was required to begin sending statements again after the bankruptcy was discharged. But the language of the TILA forecloses this argument, too. Once a debtor emerges from bankruptcy, he or she *1089must either "reaffirm personal liability for the loan [or] request in writing that the servicer provide a periodic statement."
3. State Law Claims
In addition to the Loewys' two federal claims-which are dismissed for the reasons discussed above-CMG moves for summary judgment as to their two state law claims, negligence and violation of the Rosenthal Act. But without the federal claims, this Court must first decide whether to retain and rule on the state claims or to remand the claims to state court.
In choosing whether to exercise jurisdiction over pendent state law claims, a district court should "consider and weigh in each case, and at every stage of litigation, the values of judicial economy, convenience, fairness, and comity." Carnegie-Mellon University v. Cohill ,
The Court concludes that remand is appropriate here. Both of the Loewys' state claims implicate important and rapidly evolving issues of law. With respect to their negligence claim, for example, there is an emerging split of authority as to whether a loan servicer owes borrowers a duty of care in processing loan modifications. Compare Lueras v. BAC Home Loans Servicing , LP,
CONCLUSION
For the reasons above, CMG's motion for summary judgment is GRANTED as *1090to the Loewys' RESPA and TILA claims.
IT IS SO ORDERED.
At all times relevant to the dispute, CMG's designated address for QWRs was PO Box 77423, Ewing, NJ 08628. See Kelbaugh Decl., Ex. 6 (an August 2, 2016 letter from CMG to the Loewys stating, among other things, "Qualified Written Requests, notifications of error, or requests for information concerning your loan must be directed to: PO Box 77423, Ewing, NJ 08628");
Plaintiffs argue that CMG sent its response to the Loewy's old address and that they therefore did not receive the documents for more than a month. The parties share equal blame here. At the end of the email QWR the Loewys sent to CMG-which appears to be a boilerplate form letter-the email states, "Please send these requested documents to: «Your name and address here»," apparently forgetting to fill in the actual address where they wanted the documents sent. See Kelbaugh Decl., Ex. 10. Although CMG may have chosen an inconvenient address to send the requested documents, Plaintiffs have not shown that this violated RESPA.
CMG has made various evidentiary objections to Arthur Loewys' declaration. This evidence is immaterial to the outcome here, so CMG's objections are DENIED AS MOOT . Dkt. 35 at 3-4.
Reference
- Full Case Name
- Arthur A. LOEWY and Viridiana Loewy v. CMG MORTGAGE, INC.
- Cited By
- 3 cases
- Status
- Published