JEREMYÂ KEE, Plaintiff,
FIFTHÂ THIRDÂ BANKÂ et al., Defendants.
Case No. 2:06-CV-00602-CW.
United States District Court, D. Utah, Central Division.
March 18, 2009.
MEMORANDUM DECISION AND ORDER
CLARK WADDOUPS, District Judge.
The matter before the court is Plaintiff JeremyÂ Kee’s (“Kee“) Motion for Partial Summary Judgment, and DefendantsÂ FifthÂ ThirdÂ Bank, Jonathan Meade and Fannie Mae’s (collectively, “Defendants”) Motion for Summary Judgment. A hearing on both motions was held on December 3, 2008. Brian W. Steffensen appeared on behalf of Plaintiff JeremyÂ Kee. Mona L. Burton and Darren G. Reid appeared on behalf of Defendants. Before the hearing, the court reviewed the memoranda related to the motions, as well as other pleadings and memoranda on record with the court. After hearing oral arguments, the court took the matter under advisement. After due consideration of the documents and oral arguments made by counsel, the court renders the following Memorandum Decision and Order.
Kee obtained a loan from Matrix Financial Services Corporation (“Matrix”) on October 23, 2001, in the principal amount of $150,600.00. Kee executed a Note in favor of Matrix, which was secured by a Deed of Trust on the property at issue in this dispute (the “Property”). Part of the loan documentation included a disclosure statement regarding the Real Estate Settlement Practices Act (“RESPA”), 12 U.S.C. Â§ 2605Â et seq, andÂ Kee’s rights under that act. The disclosure statement included, among other things, information about a loan servicer’s obligations if it receives a qualified written request from a borrower for information about servicing his or her loan. In September 2002,Â FifthÂ ThirdÂ Bank’s predecessor-in-interest, R-G CrownÂ Bank, FSB (“CrownÂ Bank“) acquired rights to service the loan, and subsequently was assigned the Trust Deed as well.
Due to the low equity value in the Property,Â Kee had to have private mortgage insurance (“PMI”) as a condition of the loan. Subsequent to his purchase,Â Kee made home improvements that increased the value of the Property. In approximately April 2005, he obtained a new appraisal, and based on that appraisal, he asked theÂ Bank to remove the PMI because his equity value exceeded twenty percent.
Rather than removing the PMI, CrownÂ Bank providedÂ Kee with a standard form that outlined the conditions for waiving the PMI. One condition requiredÂ Kee to pay $450.00 for a second appraisal ordered by CrownÂ Bank. Kee objected to this condition because he had already obtained an appraisal and did not want to pay for another appraisal.
After making this objection in writing,Â Kee continued to pay his mortgage payment, but he subtracted off the PMI amount. CrownÂ Bank treated the payment as a partial payment.This led to a series of oral and written communications between the parties regardingÂ Kee’sloan and default actions taken by theÂ Bank.Â Kee contends that CrownÂ Bank failed to meet its obligations under RESPA because it did not respond appropriately toÂ Kee’s qualified written requests. He further contends he was excused from making mortgage payments due to such violations, and thus stopped making his mortgage payments in April 2006. In June 2008, a notice of default was recorded, and the property was later sold at a Trustee’s Sale.
PROCEDURAL HISTORY RELATED TO THIS MOTION
In his summary judgment motion, among other issues,Â Kee argued that the Note and Trust Deed are void and unenforceable because Matrix was not properly authorized to originate loans in Utah at the time it made the loan. In his Amended Complaint filed in April 2007,Â Keealleged, “At the time Matrix originatedÂ Kee’s loan, Matrix was not properly licensed in the State of Utah and therefore not authorized to originate loans within the State of Utah.” Kee further asserted he was entitled to damages arising from Matrix’s improper origination of the loan.
Matrix did not answer or otherwise respond toÂ Kee’s Amended Complaint, but in August 2007,Kee, Matrix, and CrownÂ Bank stipulated “to dismiss with prejudice all of the claims asserted byKee against Matrix in this action.” The court granted the motion and entered an order dismissing with prejudice all claims against Matrix, but stated that the Order had “no bearing” on claims asserted byÂ Kee against CrownÂ Bank or by CrownÂ Bank againstÂ Kee.
On December 1, 2008,Â Kee filed a Notice of Withdrawal of part of his motion. The portion that was withdrawn pertains to whether the Note and Trust Deed are invalid because Matrix purportedly was not licensed to do business in Utah. As a result, the court will not address that issue in this decision.
I. STANDARD FOR SUMMARY JUDGMENT
“Summary judgment is appropriate `if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.’” The court “examine[s] the record and all reasonable inferences that might be drawn from it in the light most favorable to the non-moving party.” Nevertheless, if an affidavit “lacks the foundational elements required byÂ Rule 56(e),” such evidence is insufficient to create any genuine issues of material fact because it does not establish that a person is competent to testify on the factual issues.
Here, in opposition to Defendants’ motion for summary judgment,Â Kee filed a “Verification of Statement of Facts” that stated, “I have read my Memorandum in Opposition to Defendants’ Motion for Summary Judgment and verify that the Statements of Fact there are true and correct, and that the factual allegations in my Amended Complaint are true.” Likewise, in support of his motion for partial summary judgment,Â Kee filed a “Verification of Facts” that stated, “I have read the memoranda support (sic) my motion(s) for summary judgment and verify that the Statements of Fact therein are true and correct.” Kee offered no other evidence in support or in defense of the cross motion for summary judgment.
Kee’s verifications are bald assertions that lack foundation regarding howÂ Kee has personal knowledge of all of the facts asserted in his memoranda. “Without a factual basis, [Kee's] opinions and conclusions are not probative and cannot create a genuine issue of material fact to preclude summary judgment.” The court therefore looks to the exhibits filed by Defendants to determine these motions.
II. OVERVIEW OF RESPA
RESPA is a remedial act that is designed to protect consumers. It imposes a duty on loan servicers to respond to borrower inquires if the borrower submits a “qualified written request.” For a request to be qualified it must contain the following elements:
 a written correspondence, other than notice on a payment coupon or other payment medium supplied by the servicer, that  includes, or otherwise enables the servicer to identify, the name and account of the borrower; and  includes a statement of the reasons for the belief of the borrower, to the extent applicable, that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower.
Although the last element is written broadly to include “other information sought by the borrower,” the statement must be read in the context of section 2605(e)(1)(A). That subsection states:
If any servicer of a federally related mortgage loan receives a qualified written request from the borrower (or an agent of the borrower)Â for information relating to the servicing of such loan, the servicer shall provide a written response acknowledging receipt of the correspondence within 20 days . . . .
Thus, any information sought by the borrower must be related to the servicing of the loan for it to fall under section 2605(e) of RESPA. The act defines “servicing” as follows:
The term “servicing” means receiving any scheduled periodic payments from a borrower pursuant to the terms of any loan, including amounts for escrow accounts described in section 10, and making the payments of principal and interest and such other payments with respect to the amount received from the borrower as may be required pursuant to the terms of the loan.
As stated above, once a loan servicer receives a qualified written request, within twenty business days thereafter, the servicer must send “a written response acknowledging receipt.” Then, within sixty business days, the servicer must take one of the following steps: (1) make any necessary corrections and notify the borrower; (2) after investigation, send a written explanation to the borrower that explains why the servicer believes the account is correct; or (3) after investigation, provide the requested information, “or an explanation of why the information requested is unavailable or cannot be obtained by the servicer.” Under steps two and three, the servicer also must provide a name and telephone number of a person in its organization who can provide assistance to the borrower.
III.Â KEE’SÂ CORRESPONDENCE WITH CROWNÂ BANK
Kee asserts that he sent a number of letters to CrownÂ Bank regarding servicing of his loan. He further asserts that CrownÂ Bank failed to respond to them in accordance with RESPA. He therefore is seeking statutory damages. In response,Â FifthÂ ThirdÂ Bank asserts CrownÂ Bankdid respond toÂ Kee’s qualified written requests. For all other correspondence, theÂ Bankasserts it was not required to respond because the other correspondence did not constitute qualified written requests for various reasons. Those reasons are discussed individually below.
A. Correspondence Containing No Account Number
TheÂ Bank asserts it was not required to respond to any ofÂ Kee’s letters that lacked an account number. This is incorrect. Section 2605(e)(B)(i) provides that a written request merely has to contain sufficient information for the loan servicer to identify the name and account number of the borrower.Â Kee sent a number of letters to theÂ Bank that contained his name and usually his address. At times, it listed his account number. Notably, theÂ Bank has provided no evidence to show it was unable to determine who sent the letters. Based on the information included in the letters, and theÂ Bank’s lack of evidence to show it could not identify the borrower, absence of an account number does not disprove the letters were qualified written requests.
B. Correspondence Sent to theÂ Bank’sÂ Attorney
At times,Â Kee sent his correspondence to theÂ Bank’s attorney rather than to theÂ Bank. TheBank contends that all correspondence sent to its attorney rather than to theÂ Bank do not constitute qualified written requests. RESPA provides that if a loan servicer receives a qualified written request, the servicer must take action within sixty days. RESPA also states the servicer must receive the qualified written request from the borrower or an agent of the borrower. Although a borrower’s agent is mentioned in RESPA, there is no corresponding reference to a servicer’s agent.
“`[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.’” Because Congress refers to a borrower’s agent but does not reference a servicer’s agent in the applicable section of statute, the court concludes Congress intentionally excluded the servicer’s agent.
This conclusion is supported by case law from another jurisdiction. InÂ Griffin v. Citifinancial Mortgage Co., Inc., a borrower sent a request for information to the loan servicer’s attorney. The attorney then forwarded the request to the servicer. The court concluded that “the plain language [of the statute] imposes a duty upon the servicer to respond only when it receives a request from the borrower or the borrower’s agent.” Likewise, this court holds that written communications sent byÂ Kee to theÂ Bank’s attorney did not constitute qualified written requests because they were not sent to the loan servicer. Accordingly, documents control numbered JK 0070, JK 0071, JK0072, JK 0131-32, JK 0135, JK 0137-38, JK 0139, JK 0144, CB 00124, CB 00133, CB 00324-25, CB 00326-28, CB 00329-31, CB 00332-338, and CB 00359-364 were not qualified written requests.
C. Correspondence Drafted by theÂ BankÂ or Its Agent
DuringÂ Kee’s deposition, he identified certain documents that he believes are qualified written requests. Some of the documents he identified were letters from theÂ Bank or its attorney toKee, rather than letters fromÂ Kee to theÂ Bank. While the correspondence from theÂ Bank or its attorney toÂ Kee may have referenced questionsÂ Kee asked regarding his loan, this does not transform the correspondence into a qualified written request. Accordingly, no document sent from theÂ Bank or its attorney toÂ Kee or his agent constituted a qualified written request. These include documents control numbered JK 0052-53, JK 0055-56, JK 0058-61, and JK 0064-68.
D. Other Correspondence.
TheÂ Bank asks the court to declare that a number of other letters were not qualified written requests or were otherwise responded to correctly. TheÂ Bank identifies the letters by their respective control numbers. The court addresses each document as follows:
1. JK 0004
JK 0004 is a letter, dated June 2, 2005, from JeremyÂ Kee to theÂ Bank that listed his address and account number. In the letter,Â Kee acknowledged receiving a message regarding late fees that were assessed to his account.Â Kee also indicated that he believed the PMI would be waived and asked theÂ Bank to let him know if it foresaw any problem waiving the PMI. TheBank contends the letter did not relate to loan servicing. The court disagrees. In addition to receiving principal and interest payments, “servicing” includes handling “other payments . . . as may be required pursuant to the terms of the loan.” PMI payments are other payments required pursuant to the terms of the loan. The fact that theÂ Bank assessed late fees and declaredÂ Kee’s loan to be in default when he failed to pay the PMI shows the PMI payments were connected to servicingÂ Kee’s loan.
Although theÂ Bank disputes that document JK 0004 was a qualified written request, it nevertheless responded to the letter on June 3, 2005. TheÂ Bank therefore met its obligation under RESPA.
2. JK 0006 and CB 0279-80
a. PMI Payment
CB 0279-80 is a letter, dated June 15, 2005. JK 0006 is a letter, dated June 24, 2005. In the June 15, 2005 letter,Â Kee contended that the PMI should be removed from his account. In the June 24, 2005 letter,Â Kee informed theÂ Bank that he would be subtracting the monthly PMI from his payments, and he specified what his new payment would be. As stated previously, RESPA is a remedial consumer-protection statute that is construed liberally. BecauseKee’s letter informed theÂ Bank what he believed his monthly payment amount should be, this constituted a dispute regarding his account. Such disputes fall under RESPA.
In it briefing, theÂ Bank contended it responded to the June 15, 2005 letter on July 12, 2005.During oral argument, theÂ Bank argued its July 12, 2005 letter also responded toÂ Kee’s June 24, 2005 letter. TheÂ Bank’s letter informedÂ Kee what his loan to value ratio was and what it had to be to remove the PMI. Because theÂ Bank’s response explained thatÂ Kee had not sufficiently reduced his principal balance for the PMI to be removed, theÂ Bank substantively addressed both ofÂ Kee’s letters regarding his PMI payment.
Kee contends, however, that when a borrower sends multiple qualified written requests to a loan servicer, the loan servicer must acknowledge and respond to each one individually. RESPA requires that a loan servicer acknowledge receipt of a qualified written request within twenty days unless the loan servicer takes the necessary action within that time frame. Then the action and response satisfy the acknowledgment requirement.
TheÂ Bank’s letter only expressly acknowledged receipt ofÂ Kee’s June 15, 2005 letter.Because it substantively responded, however, to both letters within twenty days, theÂ Bank’saction and response satisfied the acknowledgment requirement. Moreover, nothing in RESPA precludes a loan servicer from responding to multiple qualified written requests in one letter, as long as the response is timely and addresses each of the servicing issues raised by the borrower. Here, theÂ Bank’s July 12, 2005 letter satisfied RESPA because it was timely and it responded toÂ Kee’s letters about his PMI payments. Holding otherwise would serve “no substantial remedial purpose,” and could lead to “harassing lawsuits by borrowers against their loan servicers.”
b. New Appraisal
Prior toÂ Kee sending the June 15, 2005 letter, theÂ Bank informedÂ Kee that if he wanted the PMI removed, he had to send $450.00 to theÂ Bank for it to obtain a new property appraisal. In the June 15, 2005 letter,Â Kee disputed that he had to pay $450.00 for a new appraisal because he had already obtained a new appraisal from the same person who did the appraisal for the original loan. In his June 24, 2005 letter,Â Kee authorized theÂ Bank to contact the appraiser to verify the value on the property. TheÂ Bank did not explain toÂ Kee why his appraisal was insufficient. Nor did theÂ Bank addressÂ Kee’s statement that theÂ Bank could contact his appraiser to obtain a copy of the new appraisal report. Instead, it merely repeated that it needed $450.00 for an appraisal so it could assess whether the PMI should be removed. This did not answerÂ Kee’s question regarding why the appraisal he obtained was insufficient, and theÂ Bank provided no explanation regarding why it would not answer his question or contact his appraiser.
Nevertheless, simply because it would have been helpful for aÂ bank to respond to a customer’s question does not necessarily give rise to a RESPA violation when aÂ bank fails to do so. As stated previously, “‘servicing’ means receiving any scheduled periodic payments from a borrower pursuant to the terms of any loan.” Issues pertaining to the sufficiency of an appraisal or to obtaining a copy of an appraisal do not fall within the definition of “servicing.” Consequently, even though theÂ Bank failed to address these issues in its response, it is not liable under RESPA for that failure.
3. JK 0017
JK 0017 is a letter, dated February 16, 2006, whereinÂ Kee informed theÂ Bank he stopped payment on a check he sent because theÂ Bank was not in conformance with state law and federal law. In particular,Â Kee contended the loan agreement was null and void due to theBank’s violation of the law. Challenging the validity of a loan is different from challenging how the loan has been serviced. Consequently, correspondence about the validity of a loan does not constitute a qualified written request. Because document JK 0017 addresses validity rather than servicing, it is not a qualified written request.
4. JK 0019
JK 0019 is a fax cover sheet, dated February 22, 2006. Kee informed theÂ Bank about a Notice of Mediation. He also stated that he had recorded a call where theÂ Bank admitted it had failed to provide “Mortgage insurance annual disclosures.” Then he said, “I look forward to your response as to why I should not move forward with the class action suit, 2 day and counting to respond.” Information about a mediation does not fall within the definition of loan servicing. Moreover, commenting that theÂ Bank failed to provide annual disclosures and threatening litigation also do not fall under loan servicing. Consequently, document JK 0019 was not a qualified written request.
5. JK 0020
JK 0020 is a fax cover sheet, dated February 24, 2006. It contained no message, and therefore is not a qualified written request.
6. JK 0021
JK 0021 is a fax cover sheet, dated February 28, 2006. On the cover sheet,Â Kee informed theÂ Bank that he had filed a complaint because theÂ Bank allegedly violated the law.Â Kee did not request any information about loan servicing. It therefore is not a qualified written request.
7. JK 22, 23, 26, 27, 28, and 29
Documents JK 0022-23 and JK 0026-29 are six, nearly identical letters that are dated either March 10, 2006 or March 11, 2006 (“March Letters”). Each of the March Letters containedKee’s name, address, and account number, and asked for an explanation regarding the amountÂ Kee owed on his account. The March Letters also made reference to the validity ofKee’s loan, but such a reference did not negate the fact thatÂ Kee asked for an explanation regarding amounts he owed on his account. The March Letters were qualified written requests.
a. Acknowledge Receiptâ€”20 Days
The record lacks evidence that theÂ Bank sent a written response acknowledging receipt of the March Letters within twenty business days. TheÂ Bank asserts it did respond to the March Letters on April 18, 2006, and that it did not respond earlier because it was waiting to resolve a Small Claims action withÂ Kee. The record indicates that a Small Claims Judgment was entered on April 3, 2006. The twentieth business day was on or about April 7, 2006. Consequently, theÂ Bank had sufficient time to acknowledge receipt of the March Letters even if the Small Claims action somehow justified a delayed response. The court thus concludes theÂ Bank failed to acknowledge receipt of the March Letters within the time specified by RESPA. Kee is entitled to summary judgment on this point.
Kee asserts theÂ Bank’s failure to follow RESPA invokes a separate violation for each letter. The court disagrees. As stated previously, the March Letters are nearly identical. All six were sent either on March 10, 2006 or March 11, 2006. Sending a loan servicer multiple letters per day that say nearly the same thing equals but one real request for information. The court therefore holds that the Banks failure to timely acknowledge the March Letters constituted one violation of RESPA.
b. Respondâ€”60 Days
RESPA allows a loan servicer sixty business days to respond substantively to a qualified written request. The April 18, 2006 letter falls within this time frame. Although theÂ Bankasserts its letter responded to the March Letters, theÂ Bank’s letter did not refer to any of these documents. Instead, it referred to another letterÂ Kee sent on April 13, 2006. TheÂ Bank’sletter did explain, though, what amounts were owed and how funds were applied month-by-month toÂ Kee’s account. TheÂ Bank therefore complied with RESPA’s second requirement by responding to the March Letters within sixty days.
8. JK 0025
JK 0025 is a fax cover sheet, dated March 7, 2006. It contained no message, and therefore is not a qualified written request.
9. JK 0031-32
JK 0031-32 is a letter, dated March 23, 2006. As with the March Letters,Â Kee asked to know how theÂ Bank calculated the amount he owed, and he also challenged the validity of the loan. Again, a loan servicer cannot ignore a request for information merely because the letter contains other information that does not relate to loan servicing. This document is a qualified written request.
TheÂ Bank argues that the April 18, 2006 letter also responded to this document. If that is true, then theÂ Bank met the time frames for acknowledging and responding to the March 23, 2006 letter. The March 23, 2006 letter asked theÂ Bank to explain its calculations becauseÂ Kee’scalculations of payments, late fees, and other charges did not match theÂ Bank’s. TheÂ Bank’sApril 18, 2006 letter addressed howÂ Kee’s payments were applied month-by-month. It further explained that all late fees and other charges had been waived. TheÂ Bank therefore responded toÂ Kee’s questions, and satisfied its obligations under RESPA.
10. JK 0033-34
JK 0033-34 is an undated letter. Kee informed the President of theÂ Bank that he had attempted to have the PMI removed from his loan for over a year. He also stated a person at theÂ Bank could not explain a notice claiming that he owed $1,388.94 on his account when he called. Despite these references, a review of the letter discloses thatÂ Kee made no request for information about his account. Instead, the statements were to inform theÂ Bank’s President about theÂ Bank’s actions, its alleged violations of federal law, and thatÂ Kee intended to pursue legal remedies. Because the letter pertained to litigation rather than loan servicing, the letter was not a qualified written request.
11. JK 0035
JK 0035 is a fax cover sheet, dated March 27, 2006. It contained no message, and therefore is not a qualified written request.
12. JK 0036
JK 0036 is a fax cover sheet, dated March 27, 2006. It contained no message, and therefore is not a qualified written request.
13. JK 0038
JK 0038 is a letter, dated April 13, 2006, whereinÂ Kee disputed the amount currently due because theÂ Bank assessed a “returned check charge” to his account. He also enclosed a check to reduce the amount of his principal so the PMI could be removed. TheÂ Bank admits the letter relates to loan servicing. TheÂ Bank responded to the letter on April 18, 2006 and properly addressed the issues raised byÂ Kee.Â Kee acknowledges this fact in document control number JK 0045. TheÂ Bank therefore has met its obligation under RESPA.
14. JK 0044
JK 0044 is a fax cover sheet, dated April 25, 2006. It contained no message, and therefore is not a qualified written request.
15. JK 0045-46
JK 0045-46 is a letter, dated April 25, 2006. Kee informed theÂ Bank that he would not make further payments until theÂ Bank explained why it failed to properly respond to his RESPA requests.Â Kee also stated he intended to file a claim against theÂ Bank and disputed receiving certain documents.Â Kee further contended that the loan was invalid. This letter did not relate to loan servicing. It asked for information about theÂ Bank’s compliance with the law rather than information regardingÂ Kee’s account. Additionally, threats relating to litigation and contentions that a loan is invalid are outside the scope of RESPA. Consequently, JK 0045-46 is not a qualified written request.
16. JK 0047
JK 0047 is a fax cover sheet, dated April 26, 2006. Kee informed theÂ Bank that he inadvertently sent a wrong page in his letter and was substituting it with another page. No request for information about his account was made on the cover sheet. The document is not a qualified written request.
17. JK 0049
JK 0049 is a fax cover sheet, dated May 3, 2006. Kee thanked theÂ Bank for removing the PMI and asked for “a refund of the unearned premium from March of 2005.” On May 10, 2005, theÂ Bank acknowledged receipt of the cover sheet. It also referredÂ Kee back to theÂ Bank’sletter of April 18, 2006, wherein theÂ Bank set out how money was applied to his account and that he did not qualify to have his PMI removed until April 2006. BecauseÂ Kee’s cover sheet did not refer to a new dispute related to loan servicing, theÂ Bank’s response was sufficient to satisfy RESPA.
18. JK 0050
JK 0050 is a fax cover sheet, dated May 5, 2006. It stated that a copy ofÂ Kee’s April 25, 2006 letter (JK 0045-46) was attached, along with theÂ Bank’s response.Â Kee asked theÂ Bankto address each issue. As stated above,Â Kee’s April 25, 2006 letter is not a qualified written request. Moreover, nothing in the fax cover sheet pertained to loan servicing. Instead,Â Keereferred to a tax form and stated he was filing more claims against theÂ Bank. JK 0050 is therefore not a qualified written request.
19. JK 0051
JK 0051 is a fax cover sheet, dated May 5, 2006. It likewise referred to a tax form and made threats of litigation. Nothing in the fax cover sheet pertained to loan servicing. JK 0051 is not a qualified written request.
20. JK 0054
JK 0054 is a fax cover sheet, dated May 15, 2006.Â Kee informed theÂ Bank he sent a request to the Office of Thrift Supervision, and that the request was attached to the fax. The court received no attached document, so the court makes no ruling regarding it. The fax cover sheet itself, however, did not include a request for information regarding loan servicing. It therefore is not a qualified written request.
21. JK 0057
JK 0056 is a fax cover sheet, dated May 26, 2006. Kee stated he was confused by a late notice he received on his account, and he asked how he owed a certain amount on his account. He referenced $450.00 that theÂ Bank had of his money, but it is unclear from the letter whetherÂ Kee expected that amount to be applied to his account. Nevertheless,Â Kee’srequest for information pertained to a new dispute about his account. TheÂ Bank responded toKee’s request on June 12, 2006. TheÂ Bank informedÂ Kee that the amount he owed was based on a monthly payment amount, plus a late fee. The specific amounts owed for the monthly payments and late fees were stated individually in theÂ Bank’s letter. TheÂ Bank did not addressKee’s reference to the $450.00 in the letter.
The April 18, 2006 letter from theÂ Bank, however, enclosed a check toÂ Kee for $450.00 to return that money to him. TheÂ Bank noted this was a second attempt to return the money toKee, and stated, “The decision not to cash this check is yours to make as it is your money and does not belong to RG-CrownÂ Bank.” Kee has provided no evidence to refute theÂ BanksentÂ Kee this check. Based on the evidence,Â Kee has no foundation to dispute that his account was in error because the $450.00 was not applied to his account, if he is indeed arguing that the money should have been applied to his account. TheÂ Bank therefore satisfied its obligation under RESPA regarding this request.
22. JK 0062
JK 0062 is a fax cover sheet, dated June 22, 2006. Kee asked theÂ Bank to explain why it had not responded to his requests. He then asked theÂ Bank to explain how the loan was valid and why theÂ Bank requested $450.00 for an appraisal and then stole the money when it received it. Again, RESPA does not pertain to a loan’s validity. Moreover, theÂ Bank has provided evidence that it properly handled the $450.00. Neither of these issues relate to loan servicing. Consequently, JK 0062 is not a qualified written request.
23. JK 0063
JK 0063 is a fax cover sheet, dated June 23, 2006, whereinÂ Kee asked why theÂ Bank filed “a frivolous law suit.” The cover sheet did not pertain to loan servicing, and was not a qualified written request.
24. JK 0069
JK 0069 is a fax cover sheet, dated November 27, 2006. Kee again threatened litigation and also threatened to inform shareholders about theÂ Bank’s actions. The cover sheet did not pertain to loan servicing, and was not a qualified written request.
25. JK 0147
TheÂ Bank asked the court for summary judgment that JK 0147 is not a qualified written request because it was sent to theÂ Bank’s counsel. This document was not provided to the court. It therefore cannot make that determination. If the document, however, was sent to theÂ Bank’scounsel, and not to theÂ Bank, then the analysis in paragraph III.B above would apply.
26. CB 00281-82
CB 0281-82 is a letter, dated August 8, 2005. Kee summarized the correspondence and conversations he had with theÂ Bank between June 15, 2005 and August 8, 2005. Issues related to loan servicing were discussed in some of the communications, according to the summarization.Â Kee stated he sent a fax on June 15, 2005 that asked for an explanation about alleged improper fees. The document was not included in the documents filed with the court and therefore the court lacks sufficient evidence to find a RESPA violation.
Kee then referred to a letter for which theÂ Bank signed on June 27, 2005. Based on the date this letter was received and its stated contents, it appears thatÂ Kee was referring to document JK 006 that is discussed in paragraph III.D.2 above. TheÂ Bank properly responded to that communication. The remaining communications addressed in the summary are not qualified written requests because they were either oral communications orÂ Kee did not make a request for information regarding loan servicing.Â Kee then informed theÂ Bank that he had been advised to file a complaint if theÂ Bank’s violations continued. This statement also did not relate to loan servicing. Consequently, theÂ Bank had no obligation to respond to this letter under RESPA.
Kee has failed to prove that theÂ Bank engaged in a pattern or practice of noncompliance with RESPA requirements. Consequently, he is not entitled to statutory damages. Instead,Â Keemust prove that he suffered actual damages as a result of theÂ Bank’s failure to acknowledge receipt of his March Letters within twenty days. The court stresses that evidence relating toKee’s other communications may not be used to prove actual damages because no RESPA violation occurred with respect to the other communications.
V. FANNIE MAE AND JONATHAN MEAD
Kee also filed suit against Fannie Mae and Jonathan Mead on the basis that they did not provide him a loan payoff statement. RESPA states that a “loan servicer” must respond to a qualified written request and that it can face liability if it fails to respond. This obligation only pertains to the loan servicer itself. Nothing in RESPA states it extends to the individual employees of a loan servicer, nor hasÂ Kee provided any authority to support such an extension. Moreover,Â Kee has provided no authority or evidence to show why the actions of theBank should be imputed to Fannie Mae, who is the owner, not the servicer, of the loan. Consequently, the court dismisses these two defendants from this action.
VI. OTHER CLAIMS ASSERTED BYÂ KEE
A. Breach of Contract
WhenÂ Kee signed his loan documents, he signed a Disclosure Statement.Â Kee contends theBank has breached the Disclosure Statement due to its failure to respond toÂ Kee’s qualified written requests. The Disclosure Statement informedÂ Kee that he has certain rights under RESPA. It then states, “ThisÂ statement tells you about those rights.” The document also has an Acknowledgment of Mortgage Loan Applicant section that states, “I/We have read this disclosure form, and understand its contents, as evidenced by my/our signature(s) below.”Based on the nature of the form and the language in it, it is apparent the Disclosure Statement is not an agreement betweenÂ Kee and theÂ Bank. Instead, it is merely a form that disclosed information toÂ Kee.Â Kee’s signature on the form was to acknowledge receipt of the form and his understanding about the information disclosed; it was not for purposes of entering into a contract. Because the document is not a contract, even if theÂ Bank did violate RESPA,Â Keehas no cause of action for breach of contract. Accordingly, this claim is dismissed.
B. Fair Debt Collection Practices Act
Kee asserted a claim under the Fair Debt Collection Practices Act (“FDCPA”). He conceded in his summary judgment briefing, however, that the FDCPA does not apply based on the particular facts of this case. That cause of action is therefore dismissed.
Kee seeks leave, however, to amend his complaint to assert a new cause of action under the Utah Consumer Sales Practices Act.Â Kee has been provided with multiple opportunities to amend his complaint in the past. In an Order, dated May 16, 2008, the court deniedÂ Kee’smotion to amend his complaint again. The parties have now filed dispositive motions and amending the complaint to add a new cause of action this late in the litigation would unduly delay this case and prejudice theÂ Bank. The court therefore deniesÂ Kee’s request for leave to amend his complaint.
C. Fair Credit Reporting Act and Defamation
Kee also asserted a claim under the Fair Credit Reporting Act (“FCRA”) because theÂ Bankallegedly failed to investigate whenÂ Kee disputed negative credit information that theÂ Bank had reported to credit reporting agencies. FCRA requires one who furnishes information to credit reporting agencies to (1) “provide accurate information; and (2) to undertake an investigation upon receipt of notice of dispute regarding credit information that is furnished.” “If it is assumed that a private right of action exists under [15 U.S.C. Â§ 1681s-2(b)], the plaintiff must show that the furnisher received notice from a consumer reporting agency, not the plaintiff, that the credit information is disputed.”
Kee’s complaint fails to allege thatÂ Kee contacted credit reporting agencies to dispute the credit reporting.Â Kee also has provided no evidence to show he contacted such agencies, nor has he provided any evidence to show theÂ Bank received notice from the credit reporting agencies that the credit information was disputed.
Kee asks for leave to amend his complaint to assert more clearly that he did contact the credit reporting agencies. Given thatÂ Kee has proffered no evidence to show that he notified the credit reporting agencies about the dispute, or that theÂ Bank received notification of a dispute from such agencies, leave to amend is not appropriate. Accordingly, the court denies leave to amend and dismisses this cause of action. Likewise, the court dismissesÂ Kee’s claim for defamation becauseÂ Kee has submitted no evidence to show that theÂ Bank reported false information to a credit reporting agency.
VIII. INJUNCTIVE RELIEF
TheÂ Bank asks the court to issue an injunction againstÂ Kee. Specifically, theÂ Bank asks the court to enjoinÂ Kee “from filing additional suits againstÂ FifthÂ Third, its employees, agents and counsel that attempt to relitigate any matters that have been decided by this suit or any of the prior suits against CrownÂ Bank, including any causes of action which could have been asserted, as well as, those which were asserted.”
On or about July 21, 2005,Â Kee filed an action in Small Claims Court against CrownÂ Bankbecause it did not remove the PMI.Â Kee filed a second action in Small Claims Court on August 9, 2005, which alleged violation of the FCRA. Both cases were dismissed for no cause of action.Â Kee then appealed the decisions to theÂ Third District Court in and for the State of Utah. The District Court upheld the dismissals.
On or about May 8, 2006,Â Kee filed aÂ third action in Small Claims Court alleging violations of RESPA.Â Kee then filed a fourth action in Small Claims Court on June 23, 2006, which also alleged violations of RESPA. Both cases were removed to this court and consolidated under the present case number. On December 20, 2007,Â Kee filed aÂ fifth action in Small Claims Court, this time against Fannie Mae and Jonathan Meade for RESPA and FDCPA violations. That case also was removed and consolidated with this case.
On October 30, 2008, this court heard oral argument onÂ Kee’s motion for a preliminary injunction.Â Kee sought to enjoin theÂ Bank from proceeding with a foreclosure action against his property. After the court denied that motion because ofÂ Kee’s failure to show a substantial likelihood of success on the merits,Â Kee filed another action in this court. That action is directed at CrownÂ Bank,Â FifthÂ ThirdÂ Bank, counsel for theÂ Bank, and others for purported violations of the law relating to the foreclosure of his property. In addition,Â Kee has threatened to bring other actions against theÂ Bank.
By law, “all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”The United States Tenth Circuit Court of Appeals has stated that a “district court has the power under 28 U.S.C. Â§ 1651(a) to enjoin litigants who abuse the court system by harassing their opponents.”
Kee has threatened legal action against theÂ Bank numerous times and has filed six separate lawsuitsâ€”all stemming from his initial dispute with theÂ Bank about PMI. The court finds thatKee’s actions constitute an abuse of the court system. Accordingly, the court hereby enjoinsKee from filing additional suits against theÂ Bank and its employees, agents, and counsel, but the injunction is limited in scope. Specifically,Â Kee is enjoined from filing additional suits for all causes of action that were or could have been included in this lawsuit or one of the other five lawsuits.Â Kee also is enjoined from bringing any of the same causes of action that have already been raised in his six lawsuits, provided that the event giving rise to the cause of action occurred on or before October 30, 2008. IfÂ Kee believes that actions taken by theÂ Bank, or its employees, agents, or counsel after October 30, 2008 have violated the law,Â Kee is not enjoined from bringing suit for such new causes of action. The court cautionsÂ Kee, however, not to abuse this right.
For the foregoing reasons,Â Kee’s Motion for Partial Summary Judgment is GRANTED IN PART and DENIED IN PART. TheÂ Bank’s Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART. Of the fifty-one alleged RESPA violations, the court grants summary judgment inÂ Kee’s favor on only one. TheÂ Bank failed to acknowledge receipt of the March Letters within twenty days, as discussed in section III(D)(7)(a) above. The court denies the remainder ofÂ Kee’s motion for summary judgment. Except for the one RESPA violation discussed in section III(D)(7)(a) above, the court grants summary judgment in theÂ Bank’s favor on all other alleged RESPA violations. The court further grants summary judgment in theBank’s favor onÂ Kee’s breach of contract, FDCPA, FCRA, and defamation claims, and enjoinsKee from filing certain additional actions as specified in the section VIII above. Moreover, the court grants summary judgment in favor of Fannie Mae and Jonathan Meed and dismisses them from the case.
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