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Bivens v. Bank Of America, N.A.

United States Court of Appeals, Eleventh Circuit

August 17, 2017

STEVEN BIVENS, Plaintiff - Appellant,

         Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:14-cv-01569-ODE

          Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges.


         Out of the blue, Steven Bivens received a letter from Select Portfolio Servicing, Inc. ("SPS"), a company with which he had had no prior dealings that purported to be his home loan servicer. Skeptical, Bivens wrote SPS a letter demanding proof of its authority to service his loan. He neglected, though, to mail his letter to the address SPS had designated for receiving such correspondence. When SPS failed to provide the proof that Bivens had requested, he sued SPS for damages under the Real Estate Settlement Procedures Act, 12 U.S.C. 2601 et seq. ("RESPA"). 12 U.S.C. § 2605(e). The district court concluded that because a regulation then in effect required Bivens to send his letter to SPS's designated address to trigger its duty to respond, SPS was entitled to summary judgment. After careful consideration and with the benefit of oral argument, we affirm.

         I. FACTS

         In 2006, Bivens borrowed money from Mortgage Lenders Network to purchase a home. After a few years, he stopped paying the mortgage. On December 4, 2012, SPS sent Bivens a letter announcing that Bank of America had assigned it the servicing rights to his mortgage. The letter provided Bivens with three separate addresses to use for correspondence-one for General Correspondence, one for Disputes/Inquiries, and one for Payment Remittance. The otherwise identical addresses had different post office box numbers. SPS's letter explained:

If you wish to send a written request about your account or dispute any of the information on this statement, please do not include it with your monthly payment. All written requests must be sent to the address listed below for Disputes/Inquiries, as this is our exclusive address for processing these matters. If you send your request or dispute to any other address, it may not be processed in accordance with our Customer Service Timelines.

         December 4 Letter at 2 (Doc. 89-3 at 69.) [1]

         Bivens, through his attorney, responded by sending a letter to SPS's General Correspondence address, not its Disputes/Inquiries address. In the letter, Bivens stated, "It is my understanding that [SPS] . . . is now going to be the servicer of [my] loan." December 17, 2012 Letter at 1 (Doc. 90-6). He asserted that he "d[id] not believe SPS ha[d] the standing to enforce this obligation" and asked SPS to "fully identify the owner of the loan by name, address and phone number." Id. at 3-4. He also requested from SPS "a certified copy of [his] promissory note in its current condition showing all endorsements and/or any allonge that show that the purported 'owner' of the loan maintains legal 'holder in due course' status as of today's date." Id. at 4. Bivens designated his letter as a "qualified written request" ("QWR") under RESPA, 12 U.S.C. § 2605(e).

         SPS received Bivens's letter at its General Correspondence address and forwarded it to its Disputes/Inquiries department. It sent Bivens two letters in response to his letter. SPS's first letter identified the holder of Bivens's note as Wells Fargo Bank, N.A., as Trustee, in Trust for SASCO 2007-MLN1 Trust Fund. Its second letter informed Bivens that he had mailed his letter to the wrong address, and once again provided him with its Disputes/Inquiries address. SPS did not, however, timely provide Bivens a certified copy of his note in its current condition, as he had requested.

         Bivens sued SPS in the district court, alleging that he was entitled to actual and statutory damages based on SPS's failure to provide an appropriate response to his letter, which he claimed qualified as a QWR under RESPA.[2] SPS moved for summary judgment on the grounds that (1) Bivens's letter was not a QWR because he had not sought information regarding the servicing of his loan; (2) SPS's acknowledgment and response obligations under RESPA were not triggered because Bivens failed to mail his letter to the correct address; and (3) Bivens could not prove actual damages or recover statutory damages. The district court granted SPS summary judgment, determining, among other things, that SPS had no duty to respond because Bivens had mailed his QWR to the wrong address. Bivens timely appealed.


         A litigant is entitled to summary judgment if it shows there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). We review summary judgment decisions de novo, drawing all reasonable inferences and reviewing all evidence in the light most favorable to the nonmoving party. Likes v. DHL Express (USA), Inc., 787 F.3d 1096, 1098 (11th Cir. 2015). "An agency's interpretation of its own regulations is 'controlling unless plainly erroneous or inconsistent with the regulation.'" Sierra Club v. Johnson, 436 F.3d 1269, 1274 (11th Cir. 2006) (quoting Auer v. Robbins, 519 U.S. 452, 461 (1997)).

         III. ...

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