RESPA only allows recovery for actual damages, statutory damages up to $2000 for repeated violations, and litigation costs if plaintiff is successful. 12 U.S.C. § 2605(f); Szczodrowski v. Specialized Loan Servicing, LLC, 2015 WL 1966887 at *7 (E.D. Mich. 2015). Courts in this district have previously held that for a plaintiff "[t]o successfully plead a RESPA claim, [she] must allege actual damages, which resulted from the Bank Defendants' failure" to comply with RESPA. Battah v. ResMAE Mortgage Corp., 746 F. Supp. 2d 869, 876 (E.D. Mich. 2010).
Finally, Ocwen avers that even if this Court finds a contract between the parties, there is no contractual provision in the Note or Mortgage that confers an obligation upon Ocwen to modify a Plaintiff's loan. Simmons v. Wells Fargo Bank, N.A., 2015 WL 4759441 at *4 (D.N.H. Aug. 11, 2015). Szczodrowski v. Specialized Loan Servicing, LLC, No. 15-10668, 2015 U.S. Dist. LEXIS 57327, at *5-6 (E.D.Mich. May 1, 2015). In opposition, Plaintiff argues that Courts have held "If an original mortgagee can be sued under state law for breach of contract, so may the partial assignee if he violates the terms of the part of the mortgage loan contract that has been assigned to him."
Despite this authority, district courts in this circuit are split as to the degree of specificity required to adequately plead actual damages under RESPA. See Ray v. Caliber Home Loans, Inc., No. 3:16-cv-364, 2016 WL 6432823, at *6 (S.D. Ohio Oct. 31, 2016) (dismissing the plaintiffs' RESPA claim where the complaint alleged "damages as a result of Caliber's [RESPA violation]"); Hagan v. Citimortgage, Inc., No. 1:15-cv-454, 2016 WL 6275333, at *5 (W.D. Mich. Oct. 27, 2016) (finding that the plaintiff failed to allege actual damages where the complaint requested "all damages to which [the plaintiff] is entitled to under RESPA, including emotional damages"); Austerberry v. Wells Fargo Home Mortg., No. 15-cv-13297, 2015 WL 8031857, at *7 (E.D. Mich. Dec. 7, 2015) ("Here, Plaintiff made a threadbare claim for 'emotional damages' without any detail as to the symptoms or severity of the emotional distress or how Defendant allegedly caused these damages."); Szczodrowski v. Specialized Loan Servicing, LLC, No. 15-10668, 2015 WL 1966887, at *7 (E.D. Mich. May 1, 2015) ("[M]ere 'stress' is not enough to meet the minimum pleading standards under RESPA."); cf. Askin v. Ocwen Loan Servicing, LLC, 2:16-cv-325, 2017 WL 4099211, at *6 (S.D. Ohio Sept. 15, 2017) (finding that the plaintiff's request for damages "to be determined at trial" was sufficient under RESPA); Helm v. Freedom Mortg. Corp., No. 15-cv-12394, 2016 WL 7367425, at *2 (E.D. Mich. Dec. 20, 2016) (citing Marais and concluding that the plaintiffs could proceed on their RESPA claim by pleading "emotional distress, indignity, and humiliation"); Bennett v. Bank of Am., N.A., 126 F. Supp. 3d 871, 880 (E.D. Ky. 2015) ("Under RESPA, plaintiffs are not required to plead damages with particularity.") Ultimately, the Court finds that a plaintiff may not proceed with a RESPA claim by merely making a "threadbare claim" for actual damages.
Block v. Seneca Mortg. Serv., -- F.Supp.3d --, 2016 WL 6434487 *23 (D.N.J. Oct. 31, 2016). In arguing that Plaintiff's Second Amended Complaint does not satisfy the pleading requirements for actual damages in the form of emotional distress, SLS relies substantially upon the holding in Szczodrowski v. Specialized Loan Servicing, LLC, 2015 WL 1966887, at *7 - 8 (E.D. Mich. May 1, 2015) (claim for emotional damages due to "stress" was not, alone, sufficient to maintain claim). Additionally, this Court previously held that while it appeared in the Amended Complaint that Plaintiff experienced some degree of emotional distress as a result of prior attempts to resolve Plaintiff's unpaid mortgage balance, Plaintiff did not indicate how SLS's purported violation of 12 C.F.R. 1024.35(e)(1) was the proximate cause.
As applied here, a plaintiff cannot use HAMP or RESPA to satisfy the duty requirement under a negligence claim. Ray v. U.S. Bank Nat. Ass'n, 627 F. App'x 452, 457 (6th Cir. 2015); Szczodrowski v. Specialized Loan Servicing, LLC, No. 15-10668, 2015 WL 1966887, at *5 (E.D. Mich. May 1, 2015); Smith v. Nationstar Mortg., No. 15-13019, 2015 WL 7180473, at *5 (E.D. Mich. Nov. 16, 2015). Because Pacifico does not demonstrate that Nationstar owed her an independent duty of care, Count II should be dismissed.
In particular, 12 C.F.R. § 1024.41(a) provides, "[n]othing in § 1024.41 imposes a duty on a servicer to provide any borrower with any specific loss mitigation option." See also Szczodrowski v. Specialized Loan Servicing, LLC, No. 15-10668, 2015 WL 1966887, at *6 (E.D. Mich. May 1, 2015) (noting that § 1024.41(a) provision "disclaims any duty for a loan servicer to provide a loan modification"). Furthermore, even if Wiggins had sufficiently pled a duty under § 1024.41, as discussed, she has not plausibly alleged that Ocwen breached the regulation.
. . . [and] the damages alleged must be damages suffered as a result of the failure to satisfy the RESPA duty at issue." Szczodrowski v. Specialized Loan Servicing, L.L.C., No. 15-10668, 2015 WL 1966887, at *7 (E.D. Mich. May 1, 2015) (internal quotation marks omitted) (quoting Claxton v. Orlans Associates, P.C., No. 1011813, 2010 WL 3385530, at *5 (E.D. Mich. Aug. 26, 2010)). A party must allege that she submitted "[a] complete loss mitigation application"—see 12 C.F.R. § 1024.41(b)(1)—as a prerequisite for recovery under 12 C.F.R. § 1024.41(g).
Plaintiffs' generalized allegation of "emotional strain of living under fear of losing their home to foreclosure" is insufficient to sustain a claim under RESPA. See Austerberry, No. 15-CV-13297, 2015 U.S. Dist. LEXIS 163454, 2015 WL 8031857, at *7 (holding that a plaintiff seeking compensation for emotional damage under RESPA must provide more than "threadbare" claims which show "how Defendant allegedly caused these damages."); Szczodrowski v. Specialized Loan Servicing, LLC, No. 15-10668, 2015 U.S. Dist. LEXIS 57327, 2015 WL 1966887, at *7 (E.D. Mich. May 1, 2015) ("mere 'stress' is not enough to meet the minimum pleading standards under RESPA."); see also McLean v. GMAC Mortgage Corp., 398 F. App'x 467, 471 (11th Cir. 2010) (finding that plaintiffs raising RESPA claims based on emotional damages must present "specific evidence to establish a causal link between the financing institution's violation and their injuries."). To establish a claim of intentional infliction of emotional distress, a plaintiff must prove the following elements: "(1) extreme and outrageous conduct, (2) intent or recklessness, (3) causation, and (4) severe emotional distress."
Additionally, the regulation itself "specifically disclaims any duty for a loan servicer to provide a loan modification." Szczodrowski v. Specialized Loan Servicing, LLC, Slip Copy, No. 15-10668, 2015 WL 1966887, at *6 (E.D. Mich. May 1, 2015) (Edmunds, J.) (citing 12 U.S.C. § 1024.41(e) which provides "[n]othing in § 1024.41 imposes a duty on a servicer to provide ay borrower with[] any specific loss mitigation option" and rejecting the argument that RESPA provided that a loan servicer had an independent duty of care to evaluate the plaintiff's eligibility for a loan modification). Finally, Plaintiffs rely upon Mik v. Fed. Home Loan Mortg. Corp., 743 F.3d 149, 166-67 (6th Cir. 2014), and argue that a violation of RESPA can evidence or support its common law negligence claim.
Plaintiffs have also failed to demonstrate that they suffered any harm as a result of Defendant's actions. Plaintiffs' generalized allegation of "emotional strain of living under fear of losing their home to foreclosure" is insufficient to sustain a claim under RESPA. See Austerberry, No. 15-CV-13297, 2015 WL 8031857, at *7 (holding that a plaintiff seeking compensation for emotional damage under RESPA must provide more than "threadbare" claims which show "how Defendant allegedly caused these damages."); Szczodrowski v. Specialized Loan Servicing, LLC, No. 15-10668, 2015 WL 1966887, at *7 (E.D. Mich. May 1, 2015) ("mere 'stress' is not enough to meet the minimum pleading standards under RESPA."); see also McLean v. GMAC Mortgage Corp., 398 F. App'x 467, 471 (11th Cir. 2010) (finding that plaintiffs raising RESPA claims based on emotional damages must present "specific evidence to establish a causal link between the financing institution's violation and their injuries."). Plaintiffs do not argue that Defendant engaged in a "pattern or practice" of RESPA violations, thus statutory damages are unavailable.