United States District Court, D. Colorado
BRENDA A. OGDEN, Plaintiff,
PNC BANK, a National Association, Defendant.
ORDER ADOPTING RECOMMENDATION AND GRANTING MOTION TO DISMISS
MARCIA S. KRIEGER, Chief District Judge.
THIS MATTER comes before the Court on the Magistrate Judge's Recommendation (#40) to grant Defendant PNC Bank's Motion for to Dismiss (#27). Plaintiff Brenda Ogden filed a timely Objection (#41).
I. ISSUE PRESENTED
Ms. Ogden's Amended Complaint (#24) alleges that Defendant PNC Bank ("PNC") violated the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2605,  by failing to respond properly to a qualified written request ("QWR") she submitted in December 2012.
The following facts are derived from the Amended Complaint.
PNC is the servicer of Ms. Ogden's mortgage loan. RESPA imposes certain requirements upon loan servicers, including a duty to respond to borrower inquiries in a timely and specific fashion. § 2605(e). Once a servicer receives a QWR from a borrower, it has thirty days to conduct an investigation and (i) make any appropriate corrections to the borrower's account; (ii) explain in writing why no correction is necessary; or (iii) explain in writing why the requested information is "unavailable or cannot be obtained." § 2605(e)(2). A servicer that fails to comply with this, or any other, RESPA provision is liable to the borrower for "an amount equal to the sum of - (A) any actual damages to the borrower as 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." § 2605(f)(1).
In December 2012, Ms. Ogden sent PNC a QWR "request[ing] information about why [PNC] was changing the [loan's monthly] payment to $709.11, and how the payment was broken down between principal, interest, and escrow." Ms. Ogden also "requested a reinstatement quote, a payoff quote, and a complete loan history report." PNC did not respond to Ms. Ogden.
Ms. Ogden's alleges that PNC violated RESPA by failing to respond to her December 2012 QWR. She requests "actual damages, including non-economic damages of emotional distress, " statutory damages, and reasonable attorney fees and costs.
In its Motion to Dismiss, PNC argues that the Amended Complaint fails to state a claim for which relief may be granted because (1) the December 2012 letter was not a QWR subject to RESPA's requirements because it did not concern the servicing of Ms. Ogden's loan; and (2) Ms. Ogden failed to sufficiently allege that she was entitled to an award of damages, either actual or statutory.
The Motion was referred to the Magistrate Judge who recommended that the Court grant the Motion to Dismiss. The Magistrate Judge concluded that the Amended Complaint alleged sufficient facts to support a claim that the December 2012 letter concerned the servicing of Ms. Ogden's mortgage and, therefore, was subject to RESPA's requirements. However, the Magistrate Judge concluded that Ms. Ogden failed to state a plausible claim for either actual or statutory damages. As to actual damages, the Magistrate Judge found that Ms. Ogden's allegations were insufficient because she alleged only that she suffered "emotional distress" and "a RESPA claim permits only the award of actual economic damages compared to damages for emotional distress." As to statutory damages, the Magistrate Judge found that the Amended Complaint alleged that PNC failed to properly respond to only two QWRs, which was insufficient to support a "pattern or practice of noncompliance" as required by the statute.
Ms. Ogden objects only to the portion of the Recommendation concluding that the Amended Complaint does not sufficiently allege actual damages.
III. STANDARD OF REVIEW
When a magistrate judge issues a recommendation on a dispositive motion, the parties may file specific, written objections within fourteen days after being served with a copy of the recommendation. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The district court reviews de novo determination those portions of the recommendation to which a timely and specific objection is made. See ...