Eleventh Circuit Says No Benefits Under RESPA If You Address Your Mail Incorrectly

Eleventh Circuit Court of Appeals, Atlanta

Eleventh Circuit Court of Appeals, Atlanta

In Bivens v. Select Portfolio Servicing, Inc., No. 16-15119 (11th Cir. Aug. 17, 2017), the Eleventh Circuit upheld the rejection of the homeowner’s Real Estate Settlement Procedures Act (“RESPA”) claim, all because he mailed a letter to the wrong address.

Bivens received a letter from Select Portfolio Servicing (“SPS”) indicating it would be his new loan servicer on his home loan.  Through his attorney, he wrote a letter to SPS–an attempt at a “qualified written request” (“QWR”) under RESPA–“demanding proof of its authority to service his loan.”  But he did not send the letter to the address SPS had designated for receiving QWRs–instead he used a “general correspondence” address.  SPS responded, but did not provide Bivens all the information he requested, so Bivens sued SPS for an alleged RESPA violation.

The district court granted summary judgment for SPS because Mr. Bivens had failed to mail his QWR to the designated address.  On appeal, the 11th Circuit agreed and affirmed.  The 11th Circuit recognized that the Department of Housing and Urban Development’s regulations “authorized servicers to ‘establish a separate and exclusive office and address for the receipt and handling of qualified written requests.'”  The Secretary of the Department, in a rulemaking notice, had also explained that if a servicer did establish such an office, the borrower was required to “deliver its request to that office in order for the inquiry to be a ‘qualified written request.'”  Bivens, undisputedly, did not.

The 11th Circuit concluded that SPS had properly designated an exclusive address for receiving QWRs.  It rejected Bivens’ arguments that he was not sufficiently notified of the specific address, and dismissed Bivens’ assertion that the common mail processing at that same address rendered it non-qualifying as a “separate and exclusive office” under the regulations.  In sum, the 11th Circuit held that Bivens’ failure to mail the QWR to the designated address relieved SPS of any duty under RESPA to respond to it.

Bivens’ claim failed not because of substantive merit but on a techncality, that probably could have been avoided through more careful reading of important notices or a better understanding and knowledge of applicable regulations.  Don’t let this happen to you!  “Technicalities” are one of many reasons to consult an appellate attorney early on–an extra set of eyes that can reduce cost, expedite proceedings, and potentially avoid a later call to a malpractice carrier.

SCOTUS Updates Rules of Practice

The United States Supreme Court has updated its rules of practice, effective July 1, 2013 [.pdf]. The changes are relatively minor, such that the Court did not make them available for comment before adopting them. The changes include:

  • Rule 12.6: Providing that a party aligned with and supporting the grant of a petition has 30 days to file a supporting brief. The party must still notify the court of its intent to file within 20 days, and cannot get an enlargement of time to file.
  • Rules 15 & 18: Increasing the number of days the Clerk waits to distribute petitions to the Justices, which gives Petitioners more time to get a reply brief served and included in the distribution packet.
  • Rule 29.3: requiring electronic transmission of Petitions to other parties in most instances.
  • Rules 37.2(a) and 3(a): Clarifying that only one signatory to an amicus brief need get consent, eliminating the need for additional signatories to file consents.
  • Rule 39: Allowing attorneys who are appointed by a state court to appear without filing an affidavit of indigency.
  • Rule 28.8: Requiring everyone to argue before the Court to be an attorney.

This article explains the interesting backstory of the Court’s new Rule 28.8, including the fascinating story of the last non-lawyer to argue (and win!) before the Supreme Court.

Proposed Changes to Rules Governing Comments on Federal Nominees

The Eleventh Circuit earlier this week announced its intent to modify rules and regulations governing the selection and review of nominees for various judicial offices [.pdf]. The revised rules would allow commenters on the qualifications of nominees to request confidentiality. However, if the selection committee determines the commenter’s name should be revealed so that the applicant can respond fully, the commenter will be given the option to withdraw the comment before the commenter’s identity is revealed. This basic change would be made to three addenda to the Rules and Regulations of the Judicial Council of the Court of Appeals for the Eleventh Circuit and would apply to nominees for appointment or reappointment as Bankruptcy Judge (Addendum 6 [.pdf]), Federal Public Defenders (Addendum 7 [.pdf]), and Bankruptcy Administrators (Addendum 9 [.pdf]). Comments to these proposed rule changes are due by August 31, 2012.