Roth v. CitiMortgage Inc. 1 In the 2

13-3839-cv
Roth v. CitiMortgage Inc.
1
In the 2
United States Court of Appeals 3
For the Second Circuit 4
________ 5
6
AUGUST TERM, 2013 7
8
ARGUED: APRIL 1, 2014 9
DECIDED: JUNE 24, 2014 10
11
No. 13-3839-cv 12
13
PATRICIA ROTH, individually and on behalf of a class of borrowers 14
similarly situated, a/k/a Patricia McCarthy, 15
Plaintiff-Appellant, 16
17
v. 18
19
CITIMORTGAGE INC., 20
Defendant-Appellee. 21
________ 22
23
Appeal from the United States District Court 24
for the Eastern District of New York. 25
No. 12-cv-2446 – Sandra J. Feuerstein, Judge. 26
________ 27
28
Before: WALKER, CHIN, and DRONEY, Circuit Judges. 29
________ 30
31
Defendant CitiMortgage Inc. services a second residential 32
mortgage for plaintiff Patricia Roth. Roth alleges that CitiMortgage’s 33
responses to requests for information about her mortgage violated 34

-- 1 of 9 --

2 No. 13-3839-cv
the Real Estate Settlement Procedures Act (‚RESPA‛), 12 U.S.C. 1
§§ 2601-2617, the Fair Debt Collection Practices Act (‚FDCPA‛), 15 2
U.S.C. §§ 1692-1692p, and N.Y. General Business Law (‚GBL‛) § 349. 3
The district court (Feuerstein, J.) dismissed Roth’s complaint under 4
Fed. R. Civ. P. 12(b)(6) for failure to state a claim, and we AFFIRM. 5
________ 6
7
ROSARIO G. SICURANZA, Sicuranza Law Firm LLC, 8
Melville, NY, for Plaintiff-Appellant. 9
JAMES C. SCHROEDER, Mayer Brown LLP, Chicago 10
IL (Therese Craparo, Mayer Brown LLP, New 11
York, NY, on the brief), for Defendant-Appellee. 12
________ 13
14
PER CURIAM: 15
Defendant CitiMortgage Inc. services a second residential 16
mortgage for plaintiff Patricia Roth. Roth alleges that CitiMortgage’s 17
responses to requests for information about her mortgage violated 18
the Real Estate Settlement Procedures Act (‚RESPA‛), 12 U.S.C. 19
§§ 2601-2617, the Fair Debt Collection Practices Act (‚FDCPA‛), 15 20
U.S.C. §§ 1692-1692p, and N.Y. General Business Law (‚GBL‛) § 349. 21
The district court (Feuerstein, J.) dismissed Roth’s complaint under 22
Fed. R. Civ. P. 12(b)(6) for failure to state a claim, and we AFFIRM. 23
BACKGROUND 24
Because the district court dismissed Roth’s claims on the 25
pleadings, we must limit our consideration ‚to the factual 26
allegations in [the] amended complaint, which are accepted as true, 27
to documents attached to the complaint as an exhibit or 28
incorporated in it by reference, to matters of which judicial notice 29
may be taken, or to documents either in plaintiffs’ possession or of 30
which plaintiffs had knowledge and relied on in bringing suit.‛ 31
Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993). 32
Since September 2008, Roth has been in default and has made 33
no payments on her second residential mortgage serviced by 34

-- 2 of 9 --

3 No. 13-3839-cv
CitiMortgage. On April 8 and 9, 2011, Roth’s lawyer sent two nearly- 1
identical letters to CitiMortgage1 requesting many specific pieces of 2
information about her mortgage, each of which stated: ‚Please treat 3
this letter as a ‘qualified written request’ under the Real Estate 4
Settlement Procedures Act.‛ CitiMortgage responded to Roth’s 5
lawyer on April 18, acknowledging the ‚numerous questions about 6
the origination and/or servicing of *Roth’s+ mortgage loan,‛ but 7
noting that ‚it appears *Roth’s+ immediate concern is obtaining 8
financial assistance.‛ On June 11, 2011, Roth’s lawyer sent another 9
letter, which was identical to the two April letters except that it 10
asked to be treated ‚as a SECOND ‘qualified written request’‛ and it 11
stated that CitiMortgage’s April 18 letter had not complied with 12
RESPA. The three letters from Roth’s lawyer to CitiMortgage were 13
sent to two addresses: one in O’Fallon, Missouri,2 and another in Des 14
Moines, Iowa. 15
After Roth’s lawyer sent his letters, CitiMortgage sent at least 16
three letters directly to Roth. On July 11, 2011, CitiMortgage sent 17
Roth a packet with a financial information form to determine her 18
eligibility for loan modification programs. On March 14, 2012, 19
CitiMortgage wrote to Roth in response to a complaint she had filed 20
with the N.Y. Department of Financial Services, stating that her 21
allegations of improper servicing of her loan were ‚unsubstantiated‛ 22
but that CitiMortgage would research and respond to any specific 23
servicing questions. And on April 10, 2012, CitiMortgage sent Roth a 24
notice that her loan was 1322 days in default and that CitiMortgage 25
1 The letters were actually addressed to an entity named CMI Workout
MS in O’Fallon, Missouri, but Roth’s complaint alleges that this entity
regularly corresponds with CitiMortgage on mortgage servicing issues,
and the letters were also copied to a CitiMortgage address in Des Moines,
Iowa. CitiMortgage’s response to Roth’s lawyer’s letters referenced the
CMI Workout MS address.
2 The address on the letters actually states ‚O’Fallon, MD,‛ but this
appears to be a typo, as the zip code corresponds to O’Fallon, Missouri,
and this Missouri address was contained in CitiMortgage’s April 18 letter.

-- 3 of 9 --

4 No. 13-3839-cv
might commence legal action if the matter was not resolved within 1
ninety days. 2
On May 16, 2012, Roth commenced this action, alleging 3
violations under RESPA, FDCPA, and N.Y. GBL § 349. She filed an 4
amended complaint on August 8, 2012. On September 11, 2013, the 5
district court granted CitiMortgage’s motion to dismiss under Rule 6
12(b)(6). Roth v. CitiMortgage Inc., No. 12-CV-2446, 2013 WL 5205775 7
(E.D.N.Y. Sept. 11, 2013). Roth timely appealed. 8
DISCUSSION 9
We review the dismissal of a complaint under Fed. R. Civ. P. 10
12(b)(6) de novo, drawing all reasonable inferences in the plaintiff’s 11
favor and dismissing only if the complaint does not ‚contain 12
sufficient factual matter, accepted as true, to state a claim to relief 13
that is plausible on its face.‛ DiFolco v. MSNBC Cable L.L.C., 622 F.3d 14
104, 111 (2d Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 15
(2009)) (internal quotation marks omitted). As we explain below, the 16
district court did not err in dismissing Roth’s claims under RESPA, 17
FDCPA, or N.Y. GBL § 349, and Roth should not be granted leave to 18
amend her complaint. 19
I. Real Estate Settlement Procedures Act 20
CitiMortgage’s duties under RESPA are triggered if it receives 21
a qualified written request (‚QWR‛), defined as correspondence that 22
identifies a borrower’s account and ‚includes a statement of the 23
reasons for the belief of the borrower, to the extent applicable, that 24
the account is in error or provides sufficient detail to the servicer 25
regarding other information sought by the borrower.‛ 12 U.S.C. 26
§ 2605(e)(1)(B)(ii). Roth alleges that the three letters sent by her 27
lawyer in April and June 2011 are QWRs, and that CitiMortgage is 28
liable for failing to provide the requested information (in violation of 29
§ 2605(e)(2)) and for providing information about overdue payments 30
to credit agencies during the sixty-day period following receipt of 31
the letters (in violation of § 2605(e)(3)). We conclude that the district 32
court properly dismissed these claims on the basis that her lawyer’s 33

-- 4 of 9 --

5 No. 13-3839-cv
letters were not sent to CitiMortgage’s designated QWR address, 1
and the requests are thus not QWRs under RESPA. 2
RESPA is a consumer-protection statute, see Freeman v. Quicken 3
Loans, Inc., 132 S. Ct. 2034, 2038 (2012), and it imposes short 4
timeframes for mortgage servicers to respond to potentially detailed 5
inquiries.3 To aid servicers with this task of providing consumers 6
with timely information, RESPA’s implementing regulations allow 7
(but do not require) servicers to establish a designated address for 8
QWRs. See 24 C.F.R. § 3500.21(e)(1) (‚By notice either included in the 9
Notice of Transfer or separately delivered by first-class mail, postage 10
prepaid, a servicer may establish a separate and exclusive office and 11
address for the receipt and handling of qualified written requests.‛). 12
The final rulemaking notice for the operative regulation, Regulation 13
X, explained that if a servicer establishes a designated QWR address, 14
‚then the borrower must deliver its request to that office in order for 15
the inquiry to be a ‘qualified written request.’‛ Real Estate 16
Settlement Procedures Act, Section 6, Transfer of Servicing of 17
Mortgage Loans (Regulation X), 59 Fed. Reg. 65,442, 65,446 (Dec. 19, 18
1994). 19
We agree with the Tenth Circuit that ‚Regulation X’s grant of 20
authority to servicers to designate an exclusive address is a 21
permissible construction of RESPA,‛ and thus ‚*f+ailure to send the 22
[request] to the designated address . . . does not trigger the servicer’s 23
duties under RESPA.‛ Berneike v. CitiMortgage, Inc., 708 F.3d 1141, 24
1148-49 (10th Cir. 2013). As long as a servicer complies with the 25
notice requirements of 24 C.F.R. § 3500.21 for designating a QWR 26
address, a letter sent to a different address is not a QWR, even if an 27
3 At the time of Roth’s lawyer’s letter, servicers had twenty days to
acknowledge receipt of a QWR and sixty days to respond. See 12 U.S.C.
§ 2605(e)(1)-(2) (2011). As of January 10, 2014, servicers have five days to
acknowledge receipt and thirty days to respond, subject to limited
extensions. See Dodd–Frank Wall Street Reform and Consumer Protection
Act, Pub. L. 111-203, § 1463(c), 124 Stat. 1376, 2184 (2010) (codified at 12
U.S.C. § 2605(e)(1)-(2), (4)).

-- 5 of 9 --

6 No. 13-3839-cv
employee at that address (who may not have training in RESPA 1
compliance) in fact responds to that letter. 2
Roth does not dispute that each of her mortgage statements 3
from CitiMortgage designated a QWR address, or that her lawyer 4
failed to use these addresses. For example, the ‚Customer Service‛ 5
section of Roth’s April and May 2011 statements states: 6
PURSUANT TO § 6 OF RESPA, A ‚QUALIFIED WRITTEN 7
REQUEST‛ REGARDING THE SERVICING OF YOUR LOAN 8
MUST BE SENT TO THIS ADDRESS: CITIMORTGAGE, INC. 9
ATTN: CUSTOMER RESEARCH TEAM, PO BOX 9442, 10
GAITHERSBURG, MD 20898–9442. A ‚qualified written 11
request‛ is written correspondence, other than notice on a 12
payment coupon or statement, which includes your name, 13
account number and the reason(s) for the request. 14
Her March 2012 mortgage statement contains an identical notice but 15
with a new P.O. Box in Hagerstown, Maryland.4 As described above, 16
Roth has alleged that her lawyer sent his requests only to addresses 17
in O’Fallon, Missouri, and Des Moines, Iowa. 18
Roth argues that CitiMortgage’s QWR address notice failed to 19
comply with the obligations of Regulation X in three ways, but none 20
of these arguments have merit. First, Roth argues that the change in 21
the QWR address on the back of her mortgage statements and the 22
fact that other departments apparently handled her lawyer’s letters 23
suggest that CitiMortgage may not have had just one ‚separate and 24
exclusive office and address for the receipt and handling‛ of QWRs 25
as required by 24 C.F.R. § 3500.21(e)(1). But no authority suggests 26
that a servicer cannot change its QWR address, and how Roth’s 27
letters were handled is of little moment if they are not QWRs. 28
Second, Roth argues that the notice on the back of her 29
mortgage statements is not ‚separately delivered.‛ But in specifying 30
4 Roth attached the March 2012 statement to her complaint and the
April and May 2011 statements to her opposition to CitiMortgage’s
motion to dismiss, so these are properly before the court. See Brass, 987
F.2d at 150.

-- 6 of 9 --

7 No. 13-3839-cv
that notice may be ‚either included in the Notice of Transfer or 1
separately delivered,‛ 24 C.F.R. § 3500.21(e)(1) simply means that 2
notice of the QWR address may be delivered separately from the 3
Notice of Transfer—not that it cannot be delivered along with other 4
mortgage information. 5
Third, Roth argues that notice of CitiMortgage’s QWR address 6
was insufficient because it was ‚buried in fine print.‛ However, 7
CitiMortgage’s notice clearly specifies in capital letters, and in the 8
same font size as the rest of the information on her mortgage 9
statement, that ‚A ‘QUALIFIED WRITTEN REQUEST’ 10
REGARDING THE SERVICING OF YOUR LOAN MUST BE SENT 11
TO THIS ADDRESS.‛ Roth relies on Catalan v. RBC Mortgage Co., 12
No. 05 C 6920, 2008 WL 2741159, at *7 (N.D. Ill. July 8, 2008), in 13
which the district court found notice insufficient when it stated that 14
‚*c+ommunication regarding this notice should be sent to‛ a 15
specified person without providing her address or mentioning 16
RESPA. But as the district court here concluded, ‚the notice 17
provided by [CitiMortgage] contains none of the ambiguities that 18
concerned the court in Catalan.‛ Roth, 2013 WL 5205775, at *6. 19
In sum, we conclude that Roth has failed to allege that 20
CitiMortgage did not properly designate a QWR address or that any 21
of her lawyer’s letters were sent to the designated address. Because 22
Roth’s lawyer’s letters are not QWRs, CitiMortgage’s RESPA duties 23
were not triggered, and therefore the district court properly 24
dismissed Roth’s RESPA claims. 25
II. Fair Debt Collection Practices Act 26
Roth also alleges that CitiMortgage violated FDCPA 27
provisions that prohibit a ‚debt collector‛ from ‚communicat*ing+ 28
with a consumer in connection with the collection of any debt . . . if 29
the debt collector knows the consumer is represented by an 30
attorney‛ and from taking actions to ‚harass, oppress, or abuse any 31
person in connection with the collection of a debt.‛ 15 U.S.C. 32
§§ 1692c(a)(2), 1692d. Roth argues that CitiMortgage violated these 33
provisions by directly sending her its financial assistance packet on 34
July 11, 2011; its response to her N.Y. Department of Financial 35

-- 7 of 9 --

8 No. 13-3839-cv
Services complaint on March 14, 2012; and its letter of April 10, 2012, 1
stating that her loan was 1322 days in default. 2
However, the amended complaint does not allege that 3
CitiMortgage acquired Roth’s debt after it was in default and so fails 4
to plausibly allege that CitiMortgage qualifies as a debt collector 5
under FDCPA. See 15 U.S.C. § 1692a(6)(F)(iii) (‚The term ‘debt 6
collector’ . . . does not include . . . any person collecting or 7
attempting to collect any debt owed . . . to the extent such activity . . . 8
concerns a debt which was not in default at the time it was obtained 9
by such person.‛); see also Alibrandi v. Fin. Outsourcing Servs., Inc., 10
333 F.3d 82, 85-86 (2d Cir. 2003) (per curiam). The district court 11
therefore did not err in dismissing Roth’s FDCPA claims. 12
III. New York General Business Law § 349 13
The final count of Roth’s complaint alleges violations of N.Y. 14
GBL § 349, which prohibits ‚*d+eceptive acts or practices in the 15
conduct of any business.‛ Roth argues that CitiMortgage violated 16
§ 349 by providing inadequate notice of its QWR address, but as 17
discussed above, CitiMortgage’s QWR address notice was not 18
inadequate. The district court thus did not err in dismissing Roth’s 19
§ 349 claim. 20
IV. Request for Leave to Amend 21
Finally, Roth argues for the first time on appeal that if we 22
conclude that her claims were properly dismissed, we should grant 23
her leave to amend her complaint. ‚The court should freely give 24
leave *to amend+ when justice so requires.‛ Fed. R. Civ. P. 15(a)(2). 25
However, ‚*w+hen a plaintiff has not moved for leave to amend in 26
the district court, we are ordinarily disinclined to exercise our 27
discretion to grant his belated request on appeal.‛ Kirsch v. Fleet St., 28
Ltd., 148 F.3d 149, 171 (2d Cir. 1998). Furthermore, leave to amend 29
need not be granted where the proposed amendment would be 30
futile. Williams v. Citigroup Inc., 659 F.3d 208, 214 (2d Cir. 2011) (per 31
curiam). Roth does not propose any specific changes to the 32
complaint beyond adding the exhibits that were included with the 33
original complaint but mistakenly omitted from the amended 34

-- 8 of 9 --

9 No. 13-3839-cv
complaint. However, those exhibits were considered by both the 1
district court and this court, and they are insufficient to save Roth’s 2
claims. Roth’s request for leave to amend is denied. 3
CONCLUSION 4
For the reasons stated above, we AFFIRM the judgment of the 5
district court. 6

-- 9 of 9 --