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.

The Clerk of Court is Not the Best Bailee for Your Negotiable Instrument, Second DCA Holds

The Second District last week reversed a judgment of foreclosure, holding that Nationstar–the servicer of the loan at issue–could not establish it was the holder or nonholder in possession of a Note via possession by the clerk of court.

Years prior to the suit that led to the opinion in Partridge v. Nationstar Mortgage, LLC, 2D16-3081 (Fla. 2D DCA Aug. 11, 2017), lender Bank of America had filed the original note and mortgage with the trial court in a different foreclosure action.  That action was ultimately dismissed, but the original note and mortgage were left in the circuit court clerk’s possession.

Nationstar then began servicing the loan, and ultimately filed a foreclosure action of its own.  Nationstar did not take possession of the Note, but instead moved the trial court to take judicial notice of the originals and transfer them to the new action.  Ultimately, the trial court entered judgment of foreclosure for Nationstar, and the homeowner appealed.

On appeal, the Second District held that Nationstar had failed to establish standing because it did not show it possessed the original note.  The court rejected Nationstar’s contention that it “was using the clerk [of the court] as bailee to continue possessing the note on its behalf,” holding that Nationstar’s “unilateral decision to leave the original note and mortgage with the trial court does not establish possession of the note.”

This case demonstrates another of the many ways in which lenders and trial courts often misunderstand the issue of standing.  We at DPW Legal regularly handle appeals for homeowners who have found themselves with a foreclosure judgment against them.  If you find yourself in such a scenario, feel free to contact us so we can help you determine whether you might have a basis for appeal.

 

Supreme Court E-Filing to Begin Nov. 13, 2017

Last week we reported that the Supreme Court of the United States went live with their new website–its first step of a modernization plan that includes e-filing.  Yesterday, the Court set a date for e-filing to begin and provided some details.

According to the Court’s press release, e-filing will begin on November 13, 2017.  Parties will be required to file both paper and electronic copies, with the paper copy being the official copy for now (so remain vigilant with your mailing and paper filing practices!).  Pro se parties will continue to file just paper, but the Court will scan all filings to make them available on the electronic system.  That system should provide easy website access to all filed documents for public access.

Registration for the new e-filing system will begin “4-8 weeks before the system begins operation,” so keep a lookout for another press release at about mid-September.  The Court has placed an “Electronic Filing” link in the center of its home page that it says will supply additional information, but currently contains only the text of the press release.

A recent video from the U.S. Courts shows the amazing efficiencies obtained from e-filing in other federal courts.  Presumably the same benefits of modernization will occur in the Supreme Court.  That said, one wonders what the new, leaner Supreme Court will look or feel like.  We can’t help but feel a bit nostalgic for the days of paper as this bastion of traditional practice updates for the twenty-first century.