Case 4:14-cv-00350-ALM Document 96 Filed 04/21/16 Page 1 of 46 PageID #: 1483
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`United States District Court
`EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
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`DANIELLE GEOFFRION and
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`DARREN KASMIR
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`v.
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`NATIONSTAR MORTGAGE LLC
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`Case No. 4:14-CV-350
`Judge Mazzant
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`MEMORANDUM OPINION AND ORDER
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`Pending before the Court is Defendant’s Renewed Motion for Judgment as a Matter of
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`Law, Motion to Alter or Amend Judgment, and Alternatively, Motion for New Trial (Dkt. #89).
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`After considering the relevant pleadings and the relevant trial testimony and evidence, the Court
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`finds that Defendant’s motion for judgment as a matter of law is denied.
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`PROCEDURAL BACKGROUND
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`In the parties’ Joint Final Pretrial Order, Plaintiffs Danielle Geoffrion (“Geoffrion”) and
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`Darren Kasmir (“Kasmir”) (together, “Plaintiffs”) accuse Defendant Nationstar Mortgage LLC
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`(“Defendant” or “Nationstar”) of violating the Real Estate Settlement Procedures Act 12 U.S.C.
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`¶ 2605(e) (“RESPA”) (Dkt. #64 at p. 2). Plaintiffs allege that they sent Defendant Qualified
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`Written Requests (“QWRs”) for information regarding their Nationstar Mortgage Account (the
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`“Account”) on at least six occasions (Dkt. #64 at p. 3 n. 3). Plaintiffs allege that Defendant
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`“failed to provide information required by federal law.” (Dkt. #64 at p. 2). Plaintiffs “also sued
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`in equity to receive [an] accounting from Defendant.” (Dkt. #64 at p. 2).1
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`Defendant maintains that Plaintiffs’ letter to Defendant “did not trigger any obligation
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`under the law[.]” (Dkt. #64 at p. 3). Defendant contends that “the communications Plaintiffs sent
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`1 Plaintiffs also brought a breach of contract claim against Defendant (Dkt. #64 at p. 2). Defendant asserted that
`Plaintiffs breached their contract with Defendant, “prior to any alleged breach by Defendant” (Dkt. #64 at p. 3).
`However, Plaintiffs dropped this claim before trial (Dkt. #89 at p. 1).
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`Case 4:14-cv-00350-ALM Document 96 Filed 04/21/16 Page 2 of 46 PageID #: 1484
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`do not meet the statutory definition of QWRs, were not sent to the address to which such
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`requests must be sent to trigger an obligation to respond, and were overly broad, unduly
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`burdensome, and sought ‘discovery type’ information regarding Plaintiffs’ account.” (Dkt. #64 at
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`p. 3). Defendant also argues that “Plaintiffs have not been damaged in a fashion to entitle them
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`to recover damages in this lawsuit[.]” (Dkt. #64 at p. 3). Defendant further alleges that “the
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`accounting claim is not well-founded because there is no issue of sufficient complexity to justify
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`relief per that claim.” (Dkt. #64 at p. 3).
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`The trial began on September 9, 2015. On September 10, 2015, Defendant moved for
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`judgment as a matter of law as to the RESPA claim after Plaintiffs rested (Trial Tr. 9/10/15 at
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`92:6-94:10).
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`Defendant based the motion on its contention that the letters to which Defendant did not
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`respond did not constitute QWRs and that Defendant adequately responded to the December 16,
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`2013 communication that Plaintiffs sent (Trial Tr. 9/10/15 at 92:7-93:3). Defendant also asserted
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`that Plaintiffs failed to establish actual damages, and that mental anguish damages are not
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`recoverable under RESPA (Trial Tr. 9/10/15 at 93:4-94:10). Plaintiffs asserted that there was
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`adequate evidence for the jury to determine that the relevant communications constituted QWRs
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`(Trial Tr. 9/10/15 at 94:12-95:2). Plaintiffs also maintained that there was sufficient evidence
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`upon which a jury could base findings of actual damages and that RESPA provides for the
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`recovery of mental anguish damages (Trial Tr. 9/10/15 at 95:3-96:16).
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`On September 10, 2015, the jury rendered a verdict finding that Plaintiffs submitted
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`QWRs to Defendant on December 16, 2013 (the “December 16 Communication”), and on
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`January 3, 2014 (the “January 3 Communication”) (Dkt. #76 at p. 1). The jury also found that
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`Defendant failed to respond or provided an inadequate response to the January 3 Communication
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`2
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`Case 4:14-cv-00350-ALM Document 96 Filed 04/21/16 Page 3 of 46 PageID #: 1485
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`(Dkt. #76 at p. 2). The jury found that Plaintiffs were entitled to recover damages caused by
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`Defendant’s failure to respond to Plaintiffs’ written inquiry, in the amounts of $23,500 for
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`pecuniary loss and $151,500 for mental anguish that Plaintiffs suffered in the past (Dkt. #76 at p.
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`3). The jury verdict also stated that Defendant engaged in a pattern or practice of noncompliance
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`with the requirements of RESPA and that Plaintiffs were entitled to an accounting of the
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`Account (Dkt. #76 at pp. 4-5).
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`On October 12, 2015, Defendant filed its Renewed Motion for Judgment as a Matter of
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`Law, Motion to Alter or Amend Judgment, and Alternatively, Motion for New Trial (Dkt. #89).
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`On October 26, 2015, Plaintiffs filed their response (Dkt. #91). On October 30, 2015, Defendant
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`filed its reply (Dkt. #94).
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`FACTUAL BACKGROUND
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`At trial, Kasmir testified that he and Geoffrion moved to Los Angeles to pursue his career
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`in film (Trial Tr. 9/9/15 at 17:16-18:21). After about five years in the area, Plaintiffs began
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`looking to buy a home (Trial Tr. 9/9/15 at 18:22-19:3). Plaintiffs bought a house through a
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`conservatorship sale and then spent a considerable amount of time updating the home (Trial Tr.
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`9/9/15 at 19:7-22:24). In 2004, Plaintiffs refinanced the house because the property value had
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`increased and they wanted to put more finances into home improvements (Trial Tr. 9/9/15 at
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`22:25-23:8). In 2012, Plaintiffs moved to Houston because their niece was seriously ill (Trial Tr.
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`9/9/15 at 25:4-27:12, 82:22-84:1). The mortgage was assigned to a variety of companies over
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`several years, but it was eventually assigned from Bank of America to Defendant on July 1, 2013
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`(Trial Tr. 9/9/15 at 23:9-19).
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`Plaintiffs continued to make automatic payments to Bank of America until payments
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`were returned to them in October 2013 (Trial Tr. 9/9/15 at 28:22-29:22, 100:3-101:3). Plaintiffs
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`3
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`Case 4:14-cv-00350-ALM Document 96 Filed 04/21/16 Page 4 of 46 PageID #: 1486
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`then tried to send payments to Defendant but the payments were sent back (Trial Tr. 9/9/15 at
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`29:23-30:16). In late October or early November 2013, Plaintiffs called Defendant and began
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`speaking with and sending faxes to a couple of different individuals within the company. Over
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`the next several weeks Plaintiffs spoke to different individuals within Nationstar on several
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`different occasions. See Trial Tr. 9/9/15 at 30:21-32:22 (Kasmir testified that he spoke with
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`someone named Carla who told him to contact her through her direct phone line and fax
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`number); Trial Tr. 9/9/15 at 39:7-17 (Kasmir testifying that when he tried calling Carla on the
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`direct phone line he was given, he instead spoke to someone named Adrian); Trial Tr. 9/9/15 at
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`43:15-44:12 (Kasmir stating that he spoke to someone named Garrett). Plaintiffs were told to
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`send documentation of their payments, which they did repeatedly because they were told that
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`their previous communications had not been received. See Trial Tr. 9/9/15 at 33:6-36:2 (Kasmir
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`explaining that he sent Carla an authorization for him to speak with Defendant’s employees
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`about the loan, bank records, and a request for clarification); Trial Tr. 9/9/15 at 36:3-38:2
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`(Kasmir stating that he never heard back from Carla and sent her another communication on
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`November 14, 2013); Trial Tr. 9/9/15 at 39:18-22 (Kasmir testifying that Adrian said that he saw
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`no records of any faxes being received, so he faxed Adrian on November 19, 2013).
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`Plaintiffs were assured that research was being done and that they would hear from
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`Defendant about the matter, only to hear nothing (Trial Tr. 9/9/15 at 33:6-36:2). Plaintiffs were
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`also told, by different people within Nationstar, that they were behind on their payments by
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`vastly different amounts. See Trial Tr. 9/9/15 at 44:13-45:4 (Kasmir stating that they were
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`initially told by Carla or Adrian that they were approximately $40,000 behind on payments);
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`Trial Tr. 9/9/15 at 43:15-44:12 (Kasmir explaining that Garrett told him that Plaintiffs were
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`$76,000 behind on their mortgage); Trial Tr. 9/9/15 at 44:10-13 (Kasmir testifying that Plaintiffs
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`4
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`Case 4:14-cv-00350-ALM Document 96 Filed 04/21/16 Page 5 of 46 PageID #: 1487
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`received a demand letter that stated that they owed $44,000). At one point Kasmir was informed
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`that an escrow account was attached to Plaintiffs’ mortgage because of property taxes, but
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`Plaintiffs were not given details about the escrow account (Trial Tr. 9/9/15 at 47:25- 50:19).
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`Kasmir stated that Plaintiffs hired an attorney, Sara Fendia (“Fendia”), to help them get
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`an answer about the amount that they owed on the mortgage, and why (Trial Tr. 9/9/15 at 52:23-
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`53:10). Fendia sent the December 16 Communication to Defendant, requesting an accounting of
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`the mortgage (Trial Tr. 9/9/15 at 53:17-55:19). Fendia then got a response in the form of a
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`packet of information (Trial Tr. 9/9/15 at 55:20-25).
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`Kasmir testified that the packet did not explain why Plaintiffs owed between $40,000 and
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`$75,0000, and it did not explain what happened with the escrow account and taxes (Trial Tr.
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`9/9/15 at 58:1-59:6). In fact, Kasmir stated that “this package led to more questions than it
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`answered.” (Trial Tr. 9/9/15 at 59:7-9). Even after meeting with Fendia, and going through the
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`packet with her, Plaintiffs still did not understand the contents of it (Trial Tr. 9/9/15 at 62:13-21).
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`Therefore, Fendia sent the January 3 Communication to Defendant (Trial Tr. 9/9/15 at 62:22-
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`64:19). Fendia continued to try to communicate with Defendant, but Defendant only responded
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`by sending Fendia refinance applications (Trial Tr. 9/9/15 at 65:23-70:11).
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`Plaintiffs testified that they would have leased the house while they were staying in
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`Houston to be with their niece, but that they were unable to because of the dispute over the
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`mortgage payment (Trial Tr. 9/9/15 87:8-90:14; 115:2-116:3). Kasmir also testified that
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`Plaintiffs still owned the house, that they had lived there for four months last year, and that they
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`had lived in the house for a few months the previous year (Trial Tr. 9/9/15 at 94:13-95:2).
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`Kasmir stated that they had not made a payment on the loan since 2013 and that Plaintiffs had
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`not paid taxes against the property for at least the last three years (Trial Tr. 9/9/15 at 95:11-17).
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`Case 4:14-cv-00350-ALM Document 96 Filed 04/21/16 Page 6 of 46 PageID #: 1488
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`Kasmir also said that Defendant had the right to pay taxes assessed against the property under the
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`security instrument (Trial Tr. 9/9/15 at 95:18-22).
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`Later in the trial, Fay Janati (“Janati), Defendant’s corporate respresentative, testified.
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`Janati testified that when she was deposed in April 2015, she was not aware of written policies
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`and procedures for determining whether a borrower’s letter qualified as a QWR (Trial Tr.
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`9/10/15 at 7:18-8:2). She also testified that she did not know the details of Defendant’s QWR
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`policy during her deposition, nor did she know if Defendant even had a written policy (Trial Tr.
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`9/10/15 at 8:13-20). She then said that since her deposition, she had done research and found out
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`that Defendant did have a policy for determining whether or not a letter qualifies as a QWR
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`(Trial Tr. 9/10/15 at 9:3-9:18). Janati conceded that the communications at issue in the current
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`case were sent in the fall of 2013, with the exception of one or two that were sent in January of
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`2014 (Trial Tr. 9/10/15 at 10:17-11:6). Janati also conceded that the written policy that
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`Defendant eventually produced to Plaintiffs was published on April 6, 2015 (Trial Tr. 9/10/15 at
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`11:7-15). When asked whether she had previously stated that the policy was in effect in 2013,
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`Janati testified that during her deposition she was confused between “written policies” and “not
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`written policies” (Trial Tr. 9/10/15 at 11:16-13:1). Janati then read from the transcript of her
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`deposition and conceded that when she was asked whether Defendant had a written policy in
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`place in December of 2013, she answered yes (Trial Tr. 9/10/15 at 13:2-6). Janati then testified
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`that Defendant had about 7,000 employees, that it was her job to attend the deposition, and that
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`Defendant had been aware of this lawsuit for almost a year and a half (Trial Tr. 9/10/15 at 13:14-
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`24).
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`Janati went on to testify that during her deposition, she did not know whether or not
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`Defendant responded to the January 3 Communication (Trial Tr. 9/10/15 at 15:6-17). After
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`Case 4:14-cv-00350-ALM Document 96 Filed 04/21/16 Page 7 of 46 PageID #: 1489
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`reading aloud her deposition testimony where she had previously stated that she did not know the
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`total amount of the loan as of November 25, 2013, Janati stated that there was too much for her
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`to remember (Trial Tr. 9/10/15 at 18:2-19:9).
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`Janati continued to discount her previous deposition testimony by arguing that there was
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`too much information for her to know the answers to several questions without reviewing the
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`relevant documentation, and that she was not sure she reviewed the necessary documentation
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`during the deposition (Trial Tr. 9/10/15 18:2-19:9, 20:5-22:8). Janati also testified that her
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`testimony was changing as a result of new information she had learned since her deposition
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`(Trial Tr. 9/10/15 at 9:3-18, 22:9-22:23, 58:21-59:15). Janati also asked to re-review
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`documentation so she could determine if her answers during the deposition were right or wrong
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`(Trial Tr. 9/10/15 at 24:9-26:7). Janati’s testimony revealed that she could have accessed or
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`brought the documents that she was requesting to trial (Trial Tr. 9/10/15 at 27:23-34:1).
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`Upon further questioning, Janati stated that while she had been unsure during her
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`deposition about whether the January 3 Communication was a QWR, she was now sure that it
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`was not a QWR because she had done further research (Trial Tr. 9/10/15 at 58:15-59:15). When
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`asked by the Court how she did not know whether the communications at issue qualified as
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`QWRs during her deposition, Janati only answered, “I’m sorry” (Trial Tr. 9/10/15 at 59:16-
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`60:5). When questioned further, Janati answered, “We do have a --- I am not Customer
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`Relation” (Trial Tr. 9/10/15 at 60:6-60:8). After further questioning from the Court about why
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`her testimony had changed, Janati finally testified that it was based on a conversation she had
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`with “somebody who works for Customer Relationship[.]” (Trial Tr. 9/10/15 at 60:9-61:6).
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`Case 4:14-cv-00350-ALM Document 96 Filed 04/21/16 Page 8 of 46 PageID #: 1490
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`LEGAL STANDARD
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`“A motion for judgment as a matter of law . . . in an action tried by jury is a challenge to
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`the legal sufficiency of the evidence supporting the jury’s verdict.” Ford v. Cimarron Ins. Co.,
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`Inc., 230 F.3d 828, 830 (5th Cir. 2000) (quoting Jones v. Kerrville State Hosp., 142 F.3d 263,
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`265 (5th Cir. 1998) (quoting Harrington v. Harris, 118 F.3d 359, 367 (5th Cir. 1997)) (internal
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`citations omitted). Judgment as a matter of law is only appropriate when “a reasonable jury
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`would not have a legally sufficient evidentiary basis to find for the party on that issue.” FED. R.
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`CIV. P. 50(a). “If the court does not grant a motion for judgment as a matter of law made under
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`Rule 50(a), the court is considered to have submitted the action to the jury subject to the court’s
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`later deciding the legal questions raised by the motion.” FED. R. CIV. P. 50(b). Therefore, a
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`movant may file a renewed judgment as a matter of law, which may include an alternative or
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`joint request for a new trial under Rule 59, “[n]o later than 28 days after the entry of judgment.”
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`Id.. “[A] jury verdict must be upheld, and judgment as a matter of law may not be granted,
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`unless ‘there is no legally sufficient evidentiary basis for a reasonable jury to find as the jury
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`did.’” Fractus, S.A. v. Samsung Elec. Co., Ltd., 876 F. Supp. 2d 802, 813 (E.D. Tex. 2012)
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`(citing Hiltgen v. Sumrall, 47 F.3d 695, 700 (5th Cir. 1995)). The jury’s verdict must be
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`supported by “substantial evidence” in support of each element of the claims. Am. Home
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`Assurance Co. v. United Space All., 378 F.3d 482, 487 (5th Cir. 2004).
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`“A court reviews all evidence in the record and must draw all reasonable inferences in
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`favor of the nonmoving party; however, a court may not make credibility determinations or
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`weigh the evidence, as those are solely functions of the jury.” Fractus, 876 F. Supp. 2d at 813;
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`see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-151 (2000). “The moving
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`party is entitled to judgment as a matter of law, ‘only if the evidence points so strongly and so
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`Case 4:14-cv-00350-ALM Document 96 Filed 04/21/16 Page 9 of 46 PageID #: 1491
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`overwhelmingly in favor of the [] moving party that no reasonable juror could return a contrary
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`verdict.’” SSL Servs., LLC v. Citrix Sys., Inc., 940 F. Supp. 2d 480, 486 (E.D. Tex. 2013)
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`(quoting Porter v. Epps, 659 F.3d 440, 445 (5th Cir. 2011) (alteration in original, citation
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`omitted).
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`“The court may, on motion, grant a new trial on all or some of the issues[.]” FED. R. CIV.
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`P. 59(a)(1). “[I]f the trial judge is not satisfied with the verdict of a jury, he has the right—and
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`indeed the duty—to set the verdict aside and order a new trial.” Smith v. Transworld Drilling
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`Co., 773 F.2d 610, 613 (5th Cir. 1985) (citation omitted). In ruling on a motion for new trial, the
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`jury’s verdict may not be lightly set aside. See Ellis v. Weasler Eng’g, Inc., 258 F.3d 326, 343
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`(5th Cir. 2001) (“[C]ourts ‘must attempt to reconcile the jury’s findings, by exegesis, if
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`necessary, before we are free to disregard the jury’s verdict and remand the case for a new
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`trial.’”). “In considering whether the seemingly inconsistent verdicts may be reconciled, the
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`court must view the evidence in the light most favorable to upholding the jury’s decision by a
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`finding of consistency.” Id.; see Hiltgen, 47 F.3d at 701.
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`A Rule 59(e) motion “calls into question the correctness of a judgment.” Templet v.
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`HydroChem Inc., 367 F.3d 473, 478 (5th Cir. 2004) (quoting In re Transtexas Gas Corp., 303
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`F.3d 571, 581 (5th Cir. 2002)). The Fifth Circuit “has held that such a motion is not the proper
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`vehicle for rehashing evidence, legal theories, or arguments that could have been offered or
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`raised before the entry of judgment.” Id. at 479 (citing Simon v. United States, 891 F.2d 1154,
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`1159 (5th Cir. 1990)). A motion to alter or amend judgment may be granted on grounds
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`including: (1) an intervening change in controlling law; (2) the availability of new evidence not
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`previously available; or (3) the need to correct clear error or manifest injustice. See In re
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`Benjamin Moore & Co., 318 F.3d 626, 629 (5th Cir. 2002). Although courts have a great deal of
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`Case 4:14-cv-00350-ALM Document 96 Filed 04/21/16 Page 10 of 46 PageID #: 1492
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`discretion in ruling on a 59(e) motion, it is “an extraordinary remedy that should be used
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`sparingly[.]” Templet, 367 F.3d at 479.
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`ANALYSIS
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`The January 3 Communication
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`In its motion, Defendant seeks judgment as a matter of law because,
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`[t]he sole violation of the Real Estate Settlement Procedures Act (“RESPA”) upon
`which the Court’s judgment against Nationstar rests is refuted by the plain
`language of the statute and undisputed evidence; and [e]ven accepting the jury’s
`finding of a RESPA violation, Plaintiffs failed to present any competent evidence
`of damages resulting from that single violation.
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`(Dkt. #89 at p. 1). Defendant maintains that “[t]hese two independent grounds require entry of a
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`take-nothing judgment in favor of Nationstar.” (Dkt. #89 at p. 1).
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`Defendant claims that the January 3 Communication is not a QWR under RESPA
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`because it was faxed and because it was not sent by mail to the QWR office and address that
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`were clearly and properly designated (Dkt. #89 at p. 10). A QWR is defined as,
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`a written correspondence, other than notice on a payment coupon or other
`payment medium supplied by the servicer, 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, to the extent
`applicable, that the account is in error or provides sufficient detail to the servicer
`regarding other information sought by the borrower.
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`12 U.S.C. § 2605(e)(1)(B). A loan servicer must respond to a QWR only if it seeks “information
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`relating to the servicing of [the] loan.” 12 U.S.C. § 2605(e)(1)(A). The term “servicing” is
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`defined as “receiving any scheduled periodic payments from a borrower pursuant to the terms of
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`any loan, including amounts for escrow accounts . . . and making the payments of principal and
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`interest and such other payments with respect to the amounts received from the borrower as may
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`be required pursuant to the terms of loan.” 12 U.S.C. § 2605(i)(3).
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`Case 4:14-cv-00350-ALM Document 96 Filed 04/21/16 Page 11 of 46 PageID #: 1493
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`In order to protect consumers, RESPA imposes limited timeframes for loan servicers to
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`respond to inquiries from borrowers. Therefore, “[t]o aid servicers with this task of providing
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`consumers with timely information, RESPA’s implementing regulations allow (but do not
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`require) servicers to establish a designated address for QWRs.” Roth v. CitiMortgage Inc., 756
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`F.3d 178, 181 (2d Cir. 2014) (quoting 24 C.F.R. § 3500.21(e)(1) (“By notice either included in
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`the Notice of Transfer or separately delivered by first-class mail, postage prepaid, a servicer may
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`establish a separate and exclusive office and address for the receipt and handling of qualified
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`written requests.”)). Where a servicer complies with the notice requirements for designating an
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`exclusive QWR office and address, a letter sent to a different office and address is not considered
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`a QWR under RESPA. Id. at 182; see Berneike v. CitiMortgage, Inc., 708 F.3d 1141, 1145 (10th
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`Cir. 2013); Allen v. Dovenmuehle Mortg., Inc., No. 3:13–CV–4710, 2014 WL 3579812, at *8
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`(N.D. Tex. July 21, 2014); Steele v. Green Tree Servicing, LLC, No. 3:09-CV-0603-D, 2010 WL
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`3565415, at *3 (N.D. Tex. Sept. 7, 2010), aff’d sub nom. Steele v. Green Tree Servicing, L.L.C.,
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`453 F. App’x. 473 (5th Cir. 2011). Stated another way, where the servicer has established a
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`separate and exclusive office and address for the receipt and handling of QWRs, that servicer’s
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`duty to respond is triggered only if the borrower sends his or her written request to the
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`designated office and address. Berneike, 708 F.3d at 1148-1149; see Roth, 756 F.3d at 181 (“[I]f
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`a servicer establishes a designated QWR address, then the borrower must deliver its request to
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`that office in order for the inquiry to be a ‘qualified written request.’”) (citation omitted).
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`Defendant argues that the January 3 Communication is not a QWR because it was faxed
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`and not sent by mail (Dkt. #89 at p. 5). Defendant argues that faxing a letter to a servicer that
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`has properly designated a QWR office and mailing address does not trigger the servicer’s
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`RESPA duties, even if the servicer actually received the fax. Berneike, 708 F.3d. at 1147; see
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`Case 4:14-cv-00350-ALM Document 96 Filed 04/21/16 Page 12 of 46 PageID #: 1494
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`also Bally v. Homeside Lending, Inc., No. 02 C 5799, 2005 WL 2250856, at *2-3 (N.D. Ill. Sept.
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`8, 2005) (holding that lender’s RESPA duty to respond was not triggered by letters faxed to its
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`office, even if lender actually received the letters, where lender had stated that qualified written
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`requests must be sent by mail to a specific address). Defendant points out that its mortgage
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`statement does not provide a fax number for the receipt of QWRs (Dkt. #89 at p. 6). Therefore,
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`Defendant argues that the January 3 Communication does not qualify as a QWR and does not
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`trigger Defendant’s duties under RESPA.
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`Plaintiffs point out
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`that “[Plaintiffs] mailed another copy of
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`the [January 3
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`Communication] to Nationstar’s ‘exclusive address’ via certified mail on January [18], 2014 in
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`compliance with RESPA.” (Dkt. #91 at p. 4). A copy of the certified mail envelope that is dated
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`January 18, 2014 (the “January 18 Envelope”), was admitted into evidence (Dkt. #91 at p. 4;
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`Plaintiffs’ Ex. 16). Defendant responds that there is not sufficient evidence to support a jury
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`finding that the January 3 Communication was enclosed in the January 18 Envelope (Dkt. #94 at
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`p. 4-5).
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`Defendant relies solely on testimony from Fendia’s examination in support of its
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`contention that “the record is less than clear that the [January 3 Communication] was in fact
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`included in [the January 18 Envelope].” (Dkt. #94 at p. 4).2 However, Defendant fails to note
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`that the exhibits themselves support a finding that the January 3 Communication was enclosed in
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`the January 18 Envelope (Plaintiffs’ Exs. 14-16). Indeed, the communication that was sent on
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`January 17, 2014 (the “January 17 Communication”) states that the original was being sent via
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`certified mail, includes a complete copy of the January 3 Communication, and includes the copy
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`of the January 3 Communication in its ‘total number of pages’ count that was on the January 17
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`2 Fendia stated during her testimony that she sent “a letter” on January 3, 2014, and on January 17, 2014 (Trial Tr.
`9/10/15 at 85:25-86:11).
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`Case 4:14-cv-00350-ALM Document 96 Filed 04/21/16 Page 13 of 46 PageID #: 1495
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`Communication’s cover sheet (Plaintiffs’ Ex. 15). Additionally, Fendia testified that “Plaintiffs’
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`Exhibit 15 . . . was sent by fax, but also sent by . . . Certified Mail[.]” (Trial Tr. 9/10/2015 at
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`120:16-19). When viewing the evidence in favor of the nonmovant, the Court finds that there
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`was sufficient evidence presented at trial to uphold a jury’s finding that the January 3
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`Communication was included in the January 18 Envelope, and thus it is not disqualified from
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`being considered a QWR, because it was sent by proper means.
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`Defendant argues that even if the January 3 Communication was included with the
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`January 17 Communication and was sent via certified mail, “the jury expressly found that the
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`[January 17 Communication] was not a QWR.” (Dkt. #94 at p. 4). However, it is important to
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`note that the January 17 Communication was considered separately and distinctly from the
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`January 3 Communication. Therefore, it is likely that the jury found that the January 17
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`Communication was repetitive of the January 3 Communication and therefore only the January 3
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`Communication constituted a QWR. Although the evidence could support a finding that the
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`January 3 Communication was sent with the January 17 Communication, that does not mean, and
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`Defendant does not argue, that it was improper for the jury to consider the two communications
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`enclosed in the certified envelope as separate communications.3
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`Defendant also argues that the January 3 Communication is not a QWR because it was
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`addressed and sent to an individual instead of being addressed and sent to “Attn: Customer
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`Relations Officer” (Dkt. #89 at p. 6). The January 3 Communication was addressed to and faxed
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`to “Michael Ferrera” (Dkt. #89 at p. 6). Defendant asserts that even accepting Plaintiffs’
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`3 Defendant comments in its reply that “Plaintiffs cite no authority for the proposition that, when a communication
`initially fails to meet the statutory requirements of a QWR, it can be revived if it is attached to a subsequent
`communication that is a valid QWR. Fortunately, the Court need not decide that issue . . .” (Dkt. #94 at p. 2).
`However, Defendant misconstrues the issue. The issue is not whether one communication can “revive” another, but
`whether two separate communications can be considered individually although they are sent within the same
`envelope. Defendant cites no case law establishing that just because a later communication that is repetitive of an
`earlier communication is included in the same envelope as the earlier communication, the earlier commination is no
`longer able to be considered a QWR.
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`Case 4:14-cv-00350-ALM Document 96 Filed 04/21/16 Page 14 of 46 PageID #: 1496
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`testimony that they were informed to communicate with Michael Ferrera, it is undisputed that
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`Defendant never indicated that it would receive QWRs at any office or address other than those
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`designated on the mortgage statements (Dkt. #89 at p. 6).
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`Defendant argues that the current case is similar to Steele. 2010 WL 3565415. In Steele,
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`“subsequent correspondence sent to the borrowers indicated they could contact the servicer or its
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`attorneys at other addresses, but the servicer never indicated that it would receive QWRs at any
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`other address.” (Dkt. #89 at p. 6) (citing Steele, 2010 WL 3565415 at *3). The Steele court held
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`that the “other addresses and telephone numbers” were merely “informal avenues to obtain other
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`information.” Steele, 2010 WL 3565415 at *3. Therefore, they did not alter the “exclusive
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`location at which it would accept” QWRs. Id. Thus, the letters that the borrowers sent “were not
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`sent to the exclusive address” that the servicer provided, and the servicer “had no duty under
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`RESPA to respond.” Id. However, Steele involved a very different set of facts than those found
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`in the current case.4
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`4 Defendant cited a number of other cases to support its contention that the January 3 Communication does not
`legally qualify as a QWR because it did not include “Attention Customer Relations Office” in the address and office.
`However, the Court found that all of the cases that Defendant cited were unpersuasive because none of them
`involved a discussion of whether the plaintiff sent the communication to a different office within the same physical
`address specified to receive QWRs, or a situation where the plaintiff was specifically told to direct their
`communications to a specific individual within the same physical address that was specified to receive QWRs. See
`Berneike v. CitiMortgage, Inc., 708 F.3d 1141, 1145-1147 (10th Cir. 2013) (stating that the plaintiff admitted that
`she did not mail her correspondence to the designated address and the plaintiff instead argued that the defendant
`waived this requirement); Allen v. Dovenmuehle Mortg., Inc., No. 3:13–CV–4710, 2014 WL 3579812, at *8 (N.D.
`Tex. July 21, 2014) (finding insufficient pleadings where the plaintiffs only alleged generally that they sent a QWR
`and did not allege facts involving whether the request was written, sent to a designated address, or requesting
`information that the defendant was required to provide under RESPA); Roth v. CitiMortgage Inc., 756 F.3d 178, 181
`(2d Cir. 2014) (finding that the plaintiff did not send the correspondences to the QWR designated address but to
`completely different states); Stein v. Nat’l City Bank, Civ. No. 09–1995 (MJD/JJG), 2010 WL 5559528, at *4-5 (D.
`Minn. Nov. 22, 2010) (finding that the plaintiff mailed the letters to the wrong addresses, one of which was the
`defendant’s attorney’s office); Daddabbo v. Countrywide Home Loans, No. C09–1417RAJ, 2010 WL 4262027, at
`*2 (W.D. Wash. Oct. 27, 2010) (finding that “Counsel sent that letter to a different address than the one disclosed in
`the . . . notice”); Lemieux v. Litton Loan Serv., No. 2:09-cv-02816-JAM-EFB, 2009 WL 5206641, at *3 (E.D. Cal.
`Dec. 22, 2009) (finding the plaintiff’s pleadings insufficient because they did not plead facts showing that they
`mailed a QWR to the address designated by the defendant); Bally v. Homeside Lending, No. 02 C 57992005, WL
`2250856, at *2-3 (N.D. Ill. Sept. 8, 2005) (finding that the plaintiff’s communications did not constitute a QWR
`where they faxed a copy of the letter and mailed the letter to the defendant’s