Cross v. Bank of New York Mellon, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-20462
Summary Calendar

DEBORAH CROSS, also known as Deborah Cross-Farron,

Plaintiff - Appellant

v.

THE BANK OF NEW YORK MELLON, formerly known as The Bank of New
York, as Trustee CWALT 2004-30B; BAYVIEW LOAN SERVICING, L.L.C.,

Defendants - Appellees

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CV-2274

Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM:*
Plaintiff Deborah Cross appeals the district court’s dismissal of her
complaint for failure to state a claim. Because she fails to demonstrate
reversible error, we affirm.

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
January 22, 2020

Lyle W. Cayce
Clerk
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No. 19-20462
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I.
The Bank of New York Mellon, a defendant here, holds a deed of trust
on a house in Harris County, Texas, owned by plaintiff Deborah Cross.
Bayview Loan Servicing, L.L.C., the other defendant, services the
corresponding loan. As relevant to this appeal, Cross alleges that, after she
unsuccessfully attempted to modify the loan, the defendants breached the deed
of trust by refusing to inform her how much she owed and by attempting to
foreclose on the house without notice.
Cross originally sought, in Texas state court, a preliminary and a
permanent injunction against the foreclosure. Her request for a preliminary
injunction was granted, so the bank was unable to foreclose on the house. The
defendants then removed the case to federal court on the basis of diversity
jurisdiction, and Cross subsequently amended her complaint, removing her
request for a permanent injunction but continuing to seek damages and
attorney’s fees.
The district court dismissed Cross’s claims, on defendants’ motion, under
Rule 12(b)(6) of the Federal Rules of Civil Procedure. It ruled that Cross had
not identified “any specific contractual obligation breached by Defendants”
other than a provision requiring notice before loan acceleration and
foreclosure. And as to that provision, the court found that Cross had not alleged
any damages resulting from the defendants’ breach, since no foreclosure had
occurred. Cross timely appealed.
II.
On the question of foreclosure-related damages, Cross asserts that she
“is seeking to be compensated for the fees she has allegedly had to expend in
state court fighting to prevent [the] foreclosure.” But those fees were expended
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in this case. Whether or not Cross is eligible to recover attorney’s fees,
1
those
fees are not damages. See In re Nalle Plastics Family Ltd. P’ship, 406 S.W.3d
168, 172-73 (Tex. 2013). The district court was thus correct that the
defendants’ alleged failure to provide Cross with notice of the planned
foreclosure did not injure her.
Further, Cross fails to identify any other contractual provision violated
by the defendants’ alleged conduct. She argues that the deed of trust entitles
her “to receive[] notices in regard to loan charges applied to her mortgage,” but
the sections of the contract that she points to say no such thing.
Cross also argues that Bayview violated the Real Estate Settlement
Procedures Act (RESPA), which requires loan servicers to respond to “qualified
written request[s]” from borrowers, 12 U.S.C. § 2605(e). Among other things,
qualified written requests must be written. See § 2605(e)(B). Although Cross
alleges that she made several requests to Bayview, she does not allege that any
were in writing. Instead, she specifies that she “made between 60-80 phone
calls to Bayview.” Phone calls are not written requests.
Finally, Cross argues that Bayview violated one of RESPA’s
implementing regulations, 12 C.F.R. § 1024.41(g), by scheduling a foreclosure
sale while her loan-modification application was pending. Although it is
debatable whether Cross has plausibly alleged a violation of this regulation,
we need not reach that question because RESPA violations are not actionable
without “actual damages to the borrower,” 12 U.S.C. § 2605(f)(1)(A); see
Whittier v. Ocwen Loan Servicing, L.L.C., 594 F. App’x 833, 836 (5th Cir. 2014);
12 C.F.R. § 1024.41(a); see also Renfroe v. Nationstar Mortg., LLC, 822 F.3d
1241, 1246 (11th Cir. 2016) (“We join our sister Circuits in recognizing that

1
See generally Butler v. Arrow Mirror & Glass, Inc., 51 S.W.3d 787, 796-97 (Tex.
App.—Houston [1st Dist.] 2001, no pet.) (discussing availability of attorney’s fees in breach-
of-contract actions).
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damages are an essential element in pleading a RESPA claim.”). As noted
above, Cross was not damaged by the defendants’ unsuccessful attempt to
foreclose on her house. See Whittier, 594 F. App’x at 836-37 (“[L]itigation fees
and expenses are [not] actual damages under RESPA.”). She has thus failed to
state a claim.
III.
For the foregoing reasons, we AFFIRM the judgment of the district court.
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