Opinion
Civ. 1:20-cv-00176-CL
07-21-2021
DONALD E. MCCOY III; MAXIMILIANO OLIVERA, Plaintiffs, v. WELLS FARGO BANK, N.A., Defendant.
FINDINGS & RECOMMENDATION
Mark Clarke United States Magistrate Judge
This putative class action case comes before the Court on a Request for Judicial Notice, (#39), and a Motion to Dismiss, (#35), both filed by Defendant Wells Fargo Bank, N.A. (“Wells Fargo”). The Court heard oral argument on the motion on December 15, 2020. (#42). For the. reasons set forth below, the Request for Judicial Notice should be GRANTED and the Motion to Dismiss should be GRANTED.
JUDICIAL NOTICE
Generally, a court may not consider material beyond the complaint when deciding a Rule 12(b)(6) motion. Fed. R. Civ. P. 12(d). However, a court may consider materials beyond the pleadings in certain circumstances without converting the Rule 12(b)(6) motion into a Rule 56 motion for summary judgment under two exceptions: judicial notice and incorporation by reference. Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018); Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001).
Judicial notice under Federal Rule of Evidence 201 permits a court to take judicial notice of undisputed facts in matters of public record. Khoja, 899 F.3d at 999. Courts readily take judicial notice of “undisputed matters of public record” and “documents on file in federal or state courts.” Harris v. Orange County, 682 F.3d 1126,1132 (9th Cir. 2012). The court may take judicial notice of complaints and briefs filed in another case to determine what issues were before that court and what was actually litigated. Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006).
In this case, Wells Fargo asks that the Court take judicial notice of seven exhibits related to litigation surrounding Plaintiffs’ mortgages, ECF Nos. 23, 39:
Exhibit 1: A foreclosure complaint filed in Oregon by Wells Fargo against McCoy on June 21, 2013 in the Jackson County Circuit Court, Case No. 13CV03561. The foreclosure action related to property located at 2969 Sunnyvale Dr., Central Point, OR 97502.
Exhibit 2: The answer and affirmative defenses filed in Oregon by McCoy on January 27, 2014 in Jackson County Circuit Court, Case No. 13CV03561.
Exhibit 3: McCoy’s response to Wells Fargo’s motion for summary judgment filed on April 17, 2015 in the Jackson County Circuit Court, Case No. 13CV03561.
Exhibit 4: McCoy’s motion for summary judgment filed on August 16,2019 in the Jackson County Circuit Court, Case No. 13CV03561.
Exhibit 5: McCoy’s supplemental motion for summary judgment filed on September 23, 2019 in the Jackson County Circuit Court, Case No. 13CV03561.
Exhibit 6: A foreclosure complaint filed by Wells Fargo against Olivera on December 13, 2018 in New Jersey Superior Court, Chancery Division, Monmouth County, Case No. SWC-F-024472-18. The foreclosure action related to property located at 15 Cherry St., Tinton Falls, NJ 07724.
Exhibit 7: An answer and affirmative defenses filed by Olivera on April 10, 2019 in New Jersey Superior Court, Chancery Division, Monmouth County, Case No. SWC-F-024472-18.
The requested documents are all documents on file in the state courts of Oregon and New Jersey. The Court concludes that these documents are all proper subjects for judicial notice. Wells Fargo’s Request for Judicial Notice should therefore be GRANTED.
LEGAL STANDARD
To survive a motion to dismiss under the federal pleading standards, the complaint must include a short and plain statement of the claim and “contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard ... asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. The court is not required to accept legal conclusions, unsupported by alleged facts, as true. Id.
BACKGROUND
Plaintiff Donald McCoy III is a resident of Jackson County, Oregon. First Am. Compl. (“FAC”) ¶ 1. McCoy took out a mortgage in 2005 secured by property located at 2969 Sunnyvale Drive, Central Point, Oregon 97502 (the “McCoy Property”). Def. Ex. 1, at 1, 4. On June 21, 2013, a foreclosure action was commenced in Oregon in the Jackson County Circuit Court, alleging that McCoy ceased to make payments on the loan beginning on April 1,2007. Def. Ex. 1, at 8.
Plaintiff Maximilliano Olivera is a resident of Monmouth County, New Jersey. FAC ¶ 2. Olivera took out a mortgage in 2009 secured by property located at 15 Cherry Street, Tinton Falls, New Jersey 07724 (the “Olivera Property”). Def. Ex. 6, at 1, 5. On November 21, 2018, a foreclosure action was commenced in the Superior Court of New Jersey Chancery Division of Monmouth County, alleging that Olivera ceased making payments on the loan beginning on July 1,2018. Def. Ex. 1,at 8.
Defendant Wells Fargo Bank, N.A. (“Wells Fargo”), is a federal depository institution incorporated in Delaware with its principal place of business in South Dakota. FAC ¶ 3. Wells Fargo is the servicer of Olivera and McCoy’s loans. FAC ¶ 33.
The FAC alleges that Plaintiffs, and other members of the putative Class, submitted borrower inquiries to Wells Fargo, which Wells Fargo was obliged to answer. FAC ¶ 37. Wells Fargo responded with letters informing Plaintiffs that their accounts were in active litigation and that, as a result, Wells Fargo “would not be providing a response to [their Borrower Inquiries] because the issues raised are the same or very closely related to the issues raised in the pending litigation.” FAC ¶ 38. These “Active Litigation Letters,” informed Plaintiffs that Wells Fargo ‘“forwarded their inquiries to its litigation counsel to review during the pending litigation’ and instructed Plaintiffs and class members to contact Wells Fargo for further assistance.” FAC ¶ 38. “Wells Fargo did not otherwise make a substantive response to Plaintiffs’ and Class members inquires.” Id.
A. McCoy Communications
On April 4,2018, during the pendency of the McCoy foreclosure action in Oregon state court, McCoy’s attorney sent a series of letters to Wells Fargo related McCoy’s loan:
(1) McCoy Inquiry 1: Requesting a payoff statement for McCoy’s loan pursuant to Regulation Z, 12 C.F.R. § 1026.36(c)(3). FAC Ex. 1, at 1.
(2) McCoy Inquiry 2: Requesting the name, address, and contact information for the current owner or assignee of McCoy’s loan; the identity and address of the master servicer of McCoy’s loan; and the identity and address of the current servicer of McCoy’s loan pursuant to Regulation X, 12 C.F.R. § 1024.36 and the Truth in Lending Act (“TILA”), 15 U.S.C. § 1641. FAC Ex. 1, at 3-4.
(3) McCoy Inquiry 3: Requesting (a) an exact reproduction of the life of loan mortgage transactional history for the McCoy loan; (b) copies of any and all servicing notes related to the servicing of the McCoy loan over the past two years; (c) copies of any broker’s price opinions for the McCoy property; (d) the physical location of the original note for the McCoy loan; (e) a “true and accurate copy of the original note” for the McCoy loan; (f) the identity, address, and contact information for the custodian of the collateral file for the McCoy loan; (g) a “detailed copy of the last two (2) analyses of the escrow account of the mortgage; and (h) a statement of “each and every date and time during the time period from January 10, 2014, to the present on which you received a complete loss mitigation application, from McCoy. FAC Ex. 1, at 6-7.
In the following months, McCoy’s attorney sent a series of Notices of Error (“NOE”) to . Wells Fargo, concerning Wells Fargo’s response to McCoy Inquiries 1-3:
(1) McCoy NOE 1: Sent May 9, 2018 and asserting that Wells Fargo failed to properly acknowledge McCoy Inquiry 2 and McCoy Inquiry 3. FAC Ex. 2, at 1-2.
(2) McCoy NOE 2: Sent May 9, 2018 and asserting that Wells Fargo failed to timely respond to McCoy Inquiry 1. FAC Ex. 2, at 13-15.
(3) McCoy NOE 3: Sent May 9, 2018 and asserting that Wells Fargo failed to timely respond to McCoy Inquiry 2. FAC Ex. 1, at 20-22.
On May 14, 2018, Wells Fargo sent a letter to McCoy’s attorney acknowledging McCoy’s inquiry. FAC Ex. 3.
On May 25, 2018, Wells Fargo sent an Active Litigation Letter to McCoy’s attorney informing him that Wells Fargo “won’t be providing a response to your inquiry because the issues raised are the same or very closely related to the issues raised in the pending litigation,” but informing him that the inquiry had been forwarded to Wells Fargo’s litigation counsel. FAC Ex. 4.
On June 14, 2018, McCoy’s attorney sent another Notice of Error, McCoy NOE 4, to Wells Fargo, asserting that Wells Fargo failed to properly respond to McCoy Inquiry 3. FAC Ex. 5, at 1-3.
On August 15, 2018, McCoy’s attorney sent another Notice of Error, McCoy NOE 5, to Wells Fargo, asserting that Wells Fargo had failed to properly respond to McCoy NOE 3. FAC Ex. 5, at 9-11. .
On August 16, 2018, McCoy’s attorney sent another Notice of Error, McCoy NOE 6, to Wells Fargo, asserting that Wells Fargo had failed to properly respond to McCoy NOE 4. FAC Ex. 5, at 22-26.
B. Olivera Communications
On September 9, 2019, during the pendency of the Olivera foreclosure action in New Jersey state court, Olivera’s attorney sent two inquiries to Wells Fargo: "
(1) Olivera Inquiry 1: Requesting any broker’s price opinions obtained for the Olivera, Property, pursuant to Regulation X, 12 C.F.R. § 1024.36. FAC Ex. 6, at 1-2.
(2) Olivera Inquiry 2: Requesting the name, address, and contact information for the current owner or assignee of the Olivera loan; the identity and address of the master servicer for the Olivera loan; and the identity and address of the current servicer of the Olivera loan pursuant to Regulation X and TILA. FAC Ex. 6, at 3-4.
On September 16, 2019, Wells Fargo acknowledged receipt of Olivera Inquiries 1 and 2.FAC Ex. 7. On September 25, 2019, Wells Fargo sent an Active Litigation Letter to Olivera’s attorney. FAC Ex. 8.
On October 28, 2019, Olivera’s attorney sent a Notice of Error, Olivera NOE 1, to Wells Fargo, asserting that Wells Fargo failed to properly respond to Olivera Inquiry 1. FAC Ex. 9.
DISCUSSION
Plaintiffs assert, on behalf of themselves and on behalf of a class and subclass of similarly situated individuals, that Wells Fargo violated RESPA by failing to respond to Plaintiffs’ inquiries and NOEs. The Court finds, however, that Plaintiffs fail to state a claim for relief. Plaintiffs’ inquiries were not related to servicing, but instead pertained to the validity and origination of their respective loans. Similarly, the NOEs were not related to servicing errors, but instead were based on Wells Fargo’s failure to respond to Plaintiffs’ inquiries. Therefore, Wells Fargo did not have an obligation to respond to the inquiries or the NOEs. This case should be dismissed.
I. RESPA and Regulation X require servicers to respond to inquiries and notices of errors when they relate to servicing of the loan.
The Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601, et seq., provides an action for damages against mortgage-loan servicers who fail to respond to certain types of inquiries from borrowers. Medrano v. Flagstar Bank, FSB, 704 F.3d 661, 663 (9th Cir, 2012). RESPA provides that borrowers may inquire about mortgages by making a “qualified written request” (“QWR”) defined as:
[A] written correspondence ... that-
(i) includes, or otherwise enables the servicer to identify the name and account of the borrower; and
(ii) includes a statement of the reasons for the belief of the borrower . . . that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower.12 U.S.C. §2605(e)(1)(A). However, a mortgage loan servicer only has an obligation to provide a written response to a QWR that seeks “information relating to the servicing of such loan.” Id.
Similarly, under Regulation X, “a qualified written request that requests information relating to the servicing of the mortgage loan is a request for information,” or an “RFI.” 12 C.F.R. § 1024.36(a). When a servicer receives a qualified RFI from a borrower, the servicer must provide a written response acknowledging receipt of the RFI within five days. 12 U.S.C. § 2605(e)(1); 12 C.F.R. § 1024.36(c). RESPA and Regulation X require a servicer to respond to an RFI for the identity and address or other relevant contact information for the owner assignee of a mortgage loan within 10 days of receipt. 12 C.F.R. § 1025.36(d)(2)(i)(A); 12 U.S.C. § 2605(k)(1)(D). The servicer must respond to RFIs seeking other information within 30 days of receipt. 12 U.S.C. § 2605(e)(2); 12 C.F.R. § 1024.36(d).
Based on all of the above, it is clear that the “relating to servicing” condition for triggering a servicer’s duty to respond, applies to inquiries/QWRs under RESPA, Medrano, 704 F.3d at 666, and to inquiries/RFIs under Regulation X, which are enforceable through RESPA. Aazami v. Wells Fargo Bank, N.A., No. 3:17-cv-01564-BR, 2019 WL 281286, at *13-14 (D. Or. Jan. 22, 2019) citing 12 C.F.R. § 1024.36(a). In other words, mortgage loan servicers only have an obligation to provide a written response to inquiries under RESPA or Regulation X if the inquiry relates to the servicing of the loan.
With respect to an inquiry sought under section 2605(k), district courts in this Circuit have found that “only QWRs [that relate to servicing of the loan] will trigger obligations under . 2605(k)(1)(D).” See Hock Huat Yap v. Deutsche Bank Nat’l Trust Co., 2018 WL 4095167, at *3 (D. Ariz. Aug. 28, 2018) citing Bever v. Cai-Western Reconveyance Corp., 2013 WL 5492154, at *5-6 (E.D. Cal. Oct. 2, 2013); Malifrando v. Real Time Resolutions Inc., No. 2:16-cv-0223-TLN-GGH-PS, 2016 WL 6966050, at *5) (E.D. Cal. Nov. 29, 2016).) Courts outside the Ninth Circuit have also specifically rejected the argument that the implementation of Regulation X expanded what borrowers could seek in terms of inquiries and, in doing so, rejected the assertion that servicers must respond to section 2605(k) inquiries that do not relate to servicing. Wesner v. Ocwen Loan Servicing, 2016 WL 9649873, at *4-5 (S.D. Fla. Nov. 14, 2016).
Finally, district courts in the Ninth Circuit have found that Notices of Error, or “NOEs,” are also limited to errors pertaining to loan servicing. Estate of Coineandubh v. Boeing Employees Credit Union, 2019 WL 3859726, at *4 (W.D. Wa. Aug. 16, 2019) (concluding that “§ 1024.35(a) similarly limits the ‘notice of error’ definition to loan servicing”). An NOE “includes a statement of the reasons for the belief of the borrower, to the extent applicable, that the account is in error....” 12 U.S.C. § 2605(e)(1)(B)(2); see also Beall v. Quality Loan Service Corp., 2011 WL 1044148, at *4 (S.D. Cal. March 21, 2011). An NOE cannot be used simply to assert the failure to respond to an RFI. Weiss, 2020 WL 469615; 12 C.F.R. § 1024.35 (providing a list defining what errors are covered, which does not include the failure to respond to an RFI). See also Smith v. Wells Fargo Bank, N.A., No. 18 CV 7979,2019 WL 2189285, at *5 (N.D. Ill. May 21, 2019) (“Lastly, the failure to properly respond to notices of error is not itself a covered error. It does not fit into any of the listed categories of covered error, nor does it relate to the servicing of the loan to fit within the catch-all category.”) Therefore, in order to trigger a servicer’s obligation to respond, an NOE, must fall into a listed category, or, like a QWR or RFI, it must relate to servicing of the loan.
II. Plaintiffs’ inquiries and NOEs pertain to the validity of their loans, not to servicing or servicing errors.
Each individual Plaintiffs inquiry and notice of error is identified and described above, according to the facts as alleged in the First Amended Complaint (#31). Therefore, this section will refer to each communication as identified above, or to subsets of them collectively, as appropriate, without repeating the full descriptions.
In general, Plaintiffs’ inquiries and NOEs do not pertain to servicing. Therefore, they are not actionable. Specifically, most of the inquiries also fails for other reasons, discussed below. Ultimately, Wells Fargo did not have an obligation to respond under RESPA or Regulation X.
a. In general, none of Plaintiffs’ inquiries or NOEs pertain to servicing.
RESPA defines servicing as “receiving any scheduled periodic payments from a borrower pursuant to the terms of any loan . . . and making the payments of principal and interest and such other payments with respect to the amounts received from the borrower.” 12 U.S.C. § 2605(i)(3). Servicing “does not include the transactions and circumstances surrounding a loan’s origination- facts that would be relevant to a challenge to the validity of the underlying debt or the terms of a loan agreement. Such events precede the servicer’s role in receiving the borrower’s payments and making payments to the borrower’s creditors.” Medrano, 704 F.3d at 666-67.
In Medrano, the Ninth Circuit upheld dismissal of a plaintiff s RESPA claim when the letters from the plaintiff to the loan servicer asserted the loan documents did not “accurately reflect the proper payment schedule represented by the loan broker.” Id. at 667. The Ninth Circuit found the servicer did not have a duty to respond to the request because the request did not relate to disputes regarding servicing of the loan. Id.
Accordingly, courts have concluded RFIs relating to the original loan transaction and its subsequent history do not qualify as QWRs under RESPA. Courts have also held requests for information concerning specific sections of pooling and servicing agreements do not relate to the “servicing” of the loan and are not subject to the RESPA requirements. Other courts have concluded borrower’s requests relating to loan modification are not related to “servicing” of the loan.Aazami, 2019 WL 281286, at *11 (collecting cases, internal quotation marks and citations omitted, alterations normalized).
There is some confusion regarding the terminology used to describe inquiries that do or do not relate to servicing. The Aazami court noted that, as discussed above, under Regulation X, a QWR that requests information relating to the servicing of the mortgage loan is a “request for information,” (“RFI”). Yet here, in the same case, a so-called “RFI” relating to the validity of the loan is found not to be a QWR for RESPA purposes. Similarly, the court in Hock Huat Yap, discussed the definition of a QWR as not including the servicing requirement, then it pointed out that the servicing requirement was the crucial trigger for a servicer’s duty to respond, and then it immediately discussed “whether section 2605(k)(1)(D) is triggered only by QWRs, or if any ‘request’ will suffice.” 2018 WL 4095167, at *3 (D. Ariz. Aug. 28, . 2018). Ultimately, however, the distinction between an RFI and a QWR is a red herring. A servicer’s obligation to respond to an inquiry, whether the inquiry is labelled a QWR, an RFI, or an NOE, is only triggered if all the requirements have been met, including, most importantly, the requirement that the inquiry relate to the servicing of the loan.
None of Plaintiffs’ inquiries or NOEs pertain to disputes regarding the servicing of their loans. Plaintiffs do not dispute that all of the inquiries and NOEs at issue in this case were sent to Wells Fargo after each plaintiff’s mortgage loan had already entered foreclosure litigation. McCoy’s Inquiries, which were sent after the foreclosure action had been remanded by the Court of Appeals, related to his challenge regarding the ownership and validity of his loan and assignment. Olivera’s Inquiries were sent while Wells Fargo’s motion for summary judgment on the foreclosure of his house was pending. Olivera’s defense of his foreclosure action likewise involved a dispute that Wells Fargo could prove it held the original Note or was the owner of the debt following assignment.
Plaintiffs essentially concede this point, arguing instead that the inquiries did not need to relate to servicing because Regulation X expanded a servicer’s obligations under RESPA to respond to non-servicing-related inquiries. As discussed above, the Court disagrees. A servicer’s obligation to respond is triggered when an inquiry relates to the servicing of the loan.
Plaintiffs point out that the McCoy’s Inquiry #3, which contains eight different requests for information, includes a request for copies of servicing notes. The Court agrees with Wells Fargo that this passing reference to information tangentially related to servicing is not sufficient to shoehorn Inquiry #3 into a properly requested servicing-related inquiry. Where the majority of requests in a purported Inquiry are not related to the servicing of a loan, the Court should not treat it as a request under the statute. Croskrey v. Ocwen Loan Servicing LLC, 2016 WL 3135643, at *11 (C.D. Cal. June 2, 2016) (“‘Given the breadth of plaintiffs’ putative QWR,’ it does appear that some of the requests of information may have touched on servicing practices; ‘but in the court’s opinion, it cannot fairly be said that the letter sought information relating to the servicing of plaintiffs’ loan.’”). See also Junod v. Dream House Mortg. Co., 2012 WL 94355, at *4 (C.D. Cal. Jan. 5, 2012) (Finding that “the alleged QWR contains largely requests for documents relating to the original loan transaction and its subsequent history. Hence, the request as a whole seeks information on the validity of the loan and mortgage documents. Such requests do not fall within the confines of RESPA.)
b. Individually, none of Plaintiffs’ inquiries or NOEs are actionable.
McCoy’s Inquiry #1 requested a payoff statement pursuant to Regulation Z (Truth in Lending Act). However, Regulation X expressly states that a payoff request need not be treated as an RFI under RESPA. 12 C.F.R. § 1024.36(a) (“A request for a payoff balance need not be treated by the servicer as a request for information.”); see also Weiss v. Wells Fargo Bank, N.A., No. 19C4947, 2020 WL 469615, at *5 (N.D. Ill. Jan. 29, 2020). This inquiry is not actionable.
McCoy’s Inquiry #2 requested information regarding the identity and address of the owner or assignee, the master servicer and the current servicer of McCoy’s loan. This information pertains to the Plaintiff’s challenge of the foreclosure and the validity of the loan, not to servicing.
McCoy’s Inquiry #3, requested eight items, including the transactional history of his loan, all BPOs, the physical location of the original note, the original note, the identity and contact information for the custodian of the collateral file note, a detailed copy of the last two analyses of the escrow account of the mortgage, the date on which Wells Fargo received a complete loss mitigation application and, finally, servicing notes for the past two years.
Requests that are too broad “are not covered by section 2605.” Derusseau v. Bank of Am., N.A., 2011 WL 5975821, at *4-5 (S.D. Cal. Nov. 29, 2011) (dismissing RESPA claims based on a request for information covering the entire life of the loan and stating that “[s]uch broad requests for information related generally to Plaintiffs loan are not covered by section 2605.”); see also Anderson v. Wells Fargo Home Mortg, No. 2:16-cv-01783 LEK, 2017 WL 4181114, at *5 (E.D. Cal. Sep. 21,2017) (holding that plaintiffs RFIs for a “ complete life of loan transactional history” are overbroad and so are not actionable under RESPA).
Here, the Inquiry#3 requests pertain to the Plaintiffs challenge of the foreclosure and the validity of the loan, not to servicing. Moreover, as discussed above, a throwaway request for servicing notes cannot pull this otherwise overbroad and non-servicing-related inquiry into RESPA’s zone of coverage. Inquiry #3 is not actionable.
McCoy NOEs #1-3 all indicate Wells Fargo’s failure to properly respond to McCoy Inquiries #1-3. None of them identify any errors in the servicing of McCoy’s loan. McCoy NOE’s #4-6 all indicate errors pertaining to McCoy NOEs #1-3. None of them identify any errors in the servicing of McCoy’s loan. Additionally, none of the McCoy NOEs #1-6 pertain to the list of errors enumerated in 12 C.F.R. § 1024.35(b). Therefore, none of the McCoy NOEs are actionable.
Plaintiffs argue that McCoy NOE #2 identifies a failure to respond to a payoff request, which Plaintiffs claim is a covered error under section 1024.35(b)(6). That section defines this listed error as a “Failure to provide an accurate payoff balance amount upon a borrower's request in violation of section 12 CFR 1026.36(c)(3).” However, an NOE falling under this section would identify an error or an inaccuracy in a payoff statement provided; there is no indication that the mere failure to respond to an inquiry itself gives rise to an actionable NOE. Section 1026.36(c)(3) even provides an indeterminate timeline for responding to a payoff request when the loan is in foreclosure: in such a case, the payoff statement must be provided “within a reasonable time.” Id. See also Tanasi v. CitiMortgage, Inc., 257 F.Supp.3d 232, 264 (D. CT. June 30, 2017) (holding that the CFPB intends the Truth in Lending Act (Regulation Z) to be the sole source of servicer’s obligations concerning payoff statement and so the request for a payoff statement does not concern servicing under RESPA); In re Monroy, 650 F.3d 1300, 1301 (9th Cir. 2011). McCoy NOE #2 identifies a failure to respond to a payoff request, but it does not identify an error. This is not an actionable NOE.
Olivera Inquiry 1 requested any broker’s price opinions obtained for the Olivera Property, pursuant to Regulation X, 12 C.F.R. § 1024.36. Olivera Inquiry 2 requested the name, address, and contact information for the current owner or assignee, the master servicer, and the current servicer of the Olivera loan pursuant to Regulation X and TILA. For the same reasons above, these requests pertain to the Plaintiffs challenge of the foreclosure and the validity of the loan, not to servicing. These inquiries are not actionable.
Finally, just like McCoy NOEs #1-3, Olivera NOE #1 asserted that Wells Fargo failed to properly respond to Olivera Inquiry #1. It did not identify any error in the servicing of the mortgage loan, nor does it pertain to the list of errors enumerated in 12 C.F.R. § 1024.35(b). Therefore, this NOE is not actionable.
III. The remaining issues are not relevant or material because the case should be dismissed.
As discussed above, Plaintiffs’ FAC should be dismissed for failure to state a claim. Therefore, any remaining issues regarding Wells Fargo’s assertion of a litigation exception to a servicer’s duty to respond to a borrower inquiry under RESPA or Regulation X is irrelevant. Similarly, the Court need not reach the issue of damages or determine whether damages have been properly plead, nor need it reach the issue of a transfer or dismissal due to improper venue as to Plaintiff Olivera. The Court has already determined that the case should be dismissed for failure to state a claim. Further analysis of these issues would not serve the interests of justice or judicial efficiency.
CONCLUSION
Defendant Wells Fargo’s Request for Judicial Notice, (#39), should be GRANTED. Defendant Wells Fargo’s Motion to Dismiss (#35) should be GRANTED.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, then the Findings arid Recommendation will go under advisement on that date.
A party’s failure to timely file objections to any of these findings will be considered a waiver of that party’s right to de novo consideration of the factual issues addressed herein and will constitute a waiver of the party’s right to review of the findings of fact in any order or judgment entered by a district judge. These Findings and Recommendation are not immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of judgment
It is so ORDERED