          Case: 17-13134   Date Filed: 05/16/2018   Page: 1 of 12


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-13134
                        Non-Argument Calendar
                      ________________________

                   D.C. Docket No. 1:16-cv-22987-UU



FRANCISCO URDANETA,

                                                           Plaintiff-Appellant,

                                 versus

WELLS FARGO BANK N.A.,

                                                          Defendant-Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                             (May 16, 2018)

Before TJOFLAT, ROSENBAUM, and NEWSOM, Circuit Judges.

PER CURIAM:
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      Francisco Urdaneta filed a pro se civil suit against his mortgagor, Wells

Fargo Bank N.A. (“Wells Fargo”), alleging violations of the Real Estate Settlement

Procedures Act, 12 U.S.C. § 2601 (“RESPA”).          Urdaneta appeals the district

court’s denial of his motion for an extension of time to respond to Wells Fargo’s

motion for summary judgment and the subsequent grant of summary judgment by

the district court in favor of Wells Fargo, both by default and on the merits. After

careful review, we affirm.

      The present dispute arose after Urdaneta apparently defaulted on a mortgage

loan. When Urdaneta defaulted, Wells Fargo, as a successor in interest on the

loan, commenced foreclosure proceedings in state court. In March 2013, the state

court issued a final judgment in favor of Wells Fargo with respect to the

foreclosure action.

      Following the entry of the foreclosure judgment, but before his home was

sold at a foreclosure sale, Urdaneta sought to modify his loan by submitting an

application with Wells Fargo for loss mitigation.        Wells Fargo responded by

informing Urdaneta that his application had omitted numerous required documents.

Urdaneta received two subsequent letters from Wells Fargo again advising him that

Wells Fargo could not assist him unless he provided additional information related

to his income, expenses, and claimed hardship. Ultimately, Wells Fargo informed

Urdaneta by written correspondence that he did not qualify for mortgage


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assistance, that he had the right to appeal the decision, and that he might have other

options available to avoid a foreclosure sale.

      Urdaneta filed the present pro se suit against Wells Fargo in July 2016

alleging, among other things, that Wells Fargo violated his rights under RESPA, 12

U.S.C. § 2601 and 12 C.F.R. § 1024.41(c)(1)(ii) (“Regulation X”). Urdaneta also

requested judicial review of his loan-modification process. In his Complaint,

Urdaneta alleged that Wells Fargo failed to (1) evaluate him for all loss-mitigation

options, even though he was qualified for loan modification; (2) notify him that his

loan-modification applications had been denied, and that he had a right to appeal

the decision; and (3) timely complete its review of his loan-modification

applications.

      Relevant to this appeal, the district court entered orders setting forth various

pretrial deadlines and, in light of Urdaneta’s pro se status, expressly warned him

that the “[f]ailure to comply with [those] deadlines . . . [would] result in dismissal

of this case for lack of prosecution.” Urdaneta nevertheless still missed certain

deadlines. He also did not respond to Wells Fargo’s requests for admissions

during discovery.

       On May 12, 2017, Wells Fargo moved for entry of summary judgment. On

the last day in which to respond, Urdaneta filed a motion for extension of time to

respond to the motion, citing a medical condition (kidney stones) as the reason for


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the requested extension. Urdaneta, however, did not specify the length of time

needed to respond to the pending motion for summary judgment. On May 31,

2017, the district court entered an order denying Urdaneta’s motion for extension

of time. Despite the denial, the court actually provided Urdaneta until June 5,

2017, to respond to the summary-judgment motion. In the same order, the district

court noted that Urdaneta had also failed to confer with Wells Fargo regarding the

Pretrial Stipulation, Jury Instructions, and Jury Verdict Form. The district court

warned Urdaneta that a failure to respond to the motion for summary judgment by

June 5, 2017, “may result in the granting of [the motion] by default.”

      When Urdaneta failed to respond at all to the motion for summary judgment,

the district court granted it, both by default and on the merits. In its June 12, 2017,

order, the district court noted that as of the date of the order, Urdaneta had not

responded to the motion for summary judgment, even though his original response

was due seventeen days earlier and even with the extension until June 5, 2017.

The district therefore granted Wells Fargo’s motion by default. But the district

court nevertheless continued, indicating that it had “considered [Wells Fargo’s]

Motion on the merits and concludes that it should be granted.” Accordingly, the

district court entered judgment in favor of Wells Fargo.




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      Urdaneta appeals, claiming the district court erred when it denied his motion

for extension of time and entered summary judgment in favor of Wells Fargo by

default and on the merits.

                                       I.

      We review for an abuse of discretion a district court’s denial of a motion for

an extension of time to file a response to a motion for summary judgment. Young

v. City of Palm Bay, 358 F.3d 859, 863 (11th Cir. 2004). When we review a

district court’s decision under this standard, our review is limited and “we give the

court considerably more leeway than if we were reviewing the decision de novo.”

Id. (citation and internal quotation marks omitted). Under the abuse-of-discretion

standard, a district court may choose from “a range of options” and will not be

reversed unless it commits “a clear error in judgment.” Id.

      Although holding a pro se defendant to a scheduled response deadline may

seem harsh, we cannot say that the district court abused its discretion when it

denied Urdaneta’s motion for an extension of time to respond to the motion for

summary judgment. Urdaneta had already missed other deadlines, and the district

court had previously warned him that failure to comply with deadlines would result

in the dismissal of the case. Moreover, although the district court technically

denied the motion, it actually provided Urdaneta with a few more days to respond

to the motion for summary judgment. And the district court then waited another


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week to hear from Urdaneta before it ruled on the summary-judgment motion.

Here, the district court had a range of options, including refusing to allow Urdaneta

additional time to file a response in light of his past record of tardiness. We cannot

say that the district court clearly erred in making such a decision. Young, 358 F.3d

at 864.

      Accordingly, we affirm in this respect.

                                       II.

      Although Urdaneta challenges the district court’s grant of summary

judgment by default, we need not address this argument because even if the court

erred in entering judgment by default, the merits of the case warranted the entry of

summary judgment in favor of Wells Fargo. We therefore address only the merits

of the summary-judgment motion.

      We review a district court’s grant of summary judgment de novo, viewing

the facts and inferences in the light most favorable to the non-moving party. Lage

v. Ocwen Loan Servicing LLC, 839 F.3d 1003, 1008–09 (11th Cir. 2016) (per

curiam). Ultimately, we may affirm the district court on “any basis supported by

the record.” Miller v. Harget, 458 F.3d 1251, 1256 (11th Cir. 2006).

      Summary judgment requires that the pleadings and evidence show that there

is “no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). Under the summary-judgment


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standard, a party must “make a showing sufficient to establish” the essential

elements of its case. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the

moving party makes the required showing, the non-moving party has the burden of

rebutting it through relevant and admissible evidence beyond the pleadings.

Josendis v. Wall to Wall Residence Repairs Inc., 662 F.3d 1292, 1315 (11th Cir.

2011). If a party fails to properly support or address another party’s assertion of

fact in a motion for summary judgment, the court may “consider the fact

undisputed for purposes of the motion” or “grant summary judgment if the motion

and supporting materials—including the facts considered undisputed—show that

the movant is entitled to it.” Fed. R. Civ. P. 56(e)(2), (3).

      Rule 36 of the Federal Rules of Civil Procedure allows a party to serve a

written request to admit evidence on another party. Fed. R. Civ. P. 36. Evidence is

admitted if the other party does not respond to it within 30 days. Fed. R. Civ. P.

36(a)(3). The effect of an admission is to “conclusively establish[] that evidence.

Fed. R. Civ. P. 36(b).      Here, although Wells Fargo propounded requests for

admission on Urdaneta, he failed to respond. Accordingly, those requests are

deemed admitted for purposes of summary judgment.

      We now turn to the crux of Urdaneta’s RESPA-violation claim. As noted

above, Urdaneta asserted that Wells Fargo failed to (1) evaluate him for loss-

mitigation options; (2) notify him that his applications had been denied, and that he


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had a right to appeal the decision; and (3) timely complete its review of his loan-

modification applications. After reviewing the record, we disagree and find that

the entry of summary judgment in favor of Wells Fargo was warranted.

      RESPA is a statute that regulates the real-estate settlement process. Hardy

v. Regions Mortg., Inc., 449 F.3d 1357, 1359 (11th Cir. 2006). The Act authorizes

the Consumer Financial Protection Bureau to prescribe rules and regulations to

achieve RESPA’s purpose, which it has done, in part, by promulgating 12 C.F.R.

§ 1024.41(c)(1)(ii) (“Regulation X”).       See id.; 12 U.S.C. § 2617(a).        Section

2605(f) of RESPA establishes a private right of action for a borrower to enforce

RESPA and Regulation X. See id.; 12 U.S.C. § 2605(f).

      Regulation X, in turn, establishes obligations for how a mortgage-loan

servicer must handle a borrower’s loss-mitigation application. 1 See Lage, 839 F.3d

at 1006. But, nothing in Regulation X imposes a duty on a loan servicer to provide

a borrower with “any specific loss mitigation option.” 12 C.F.R. § 1024.41(a).

Generally speaking, Regulation X requires a loan servicer to evaluate a complete

loss-mitigation application within 30 days of receipt of the application. 12 C.F.R.

§ 1024.41(c)(1) (2017); Lage, 839 F.3d at 1009. The loan servicer’s obligations,

however, are triggered only when the servicer receives from a borrower a


      1
          A loss-mitigation application is a “request by a borrower for any of a number of
alternatives to foreclosure, known as loss mitigation options, including, among others,
modification of the mortgage.” Lage, 839 F.3d at 1006 (citation omitted).
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“complete loss mitigation application more than 37 days before a foreclosure sale.”

12 C.F.R. § 1024.41(c)(1); see Lage, 839 F.3d at 1009.

      An application is considered to be “complete” under Regulation X when the

“servicer has received all the information that the servicer requires from a

borrower in evaluating applications for the loss mitigation options available to the

borrower.” 12 C.F.R. § 1024.41(b)(1). Indeed, this Court has held that “although

Regulation X requires a servicer to evaluate a loss mitigation application within 30

days, this duty is only triggered when the borrower submits a complete loss

mitigation application more than 37 days before a foreclosure sale.” Lage, 839

F.3d at 1009 (citation and internal quotation marks omitted) (emphasis added).

When faced with an incomplete application, a servicer must exercise “reasonable

diligence in obtaining documents and information to complete” the application.

See 12 C.F.R. § 1024.41(b)(1). But if the borrower does not make the application

complete for a “significant period,” Regulation X allows the servicer to use its

discretion and evaluate an incomplete application for loss-mitigation options

available to the borrower. 12 C.F.R. § 1024.41(c)(2)(ii).

      True, Regulation X was amended in 2017. But under the version of the

regulation effective from January 10, 2014, until October 19, 2017—covering the

period during which Urdaneta submitted each of his applications—Wells Fargo

was required to comply with only Regulation X’s obligations to assess an


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application “for a single complete loss mitigation application for a borrower’s

mortgage loan account.” 12 C.F.R. § 1024.41(i) (2016) (emphasis added).

      With these principles in mind, we conclude that the district court did not err

when it granted Wells Fargo’s motion for summary judgment on the merits.

Ultimately, Urdaneta failed to show that he had submitted a complete loss-

mitigation application to trigger Wells Fargo’s Regulation X obligations to

evaluate him for loss mitigation options. See Josendis, 662 F.3d at 1315; 12

C.F.R. § 1024.41(c)(1). A review of the loan modification requests that Urdaneta

submitted to Wells Fargo, which are attached to the Amended Complaint, reveals

their incomplete nature. For instance, one request consists solely of a single page

stating that other materials were purportedly sent via facsimile with a cover sheet

labeled “modification request.”

      Additionally, Wells Fargo sent correspondence to Urdaneta on numerous

occasions advising him that it had not received a complete application and, as a

result, it could not offer him assistance options.      And Wells Fargo advised

Urdaneta of the specific financial information needed to complete the application.

Indeed, Wells Fargo provided Urdaneta with a chart indicating which documents

had been received and which were incomplete or missing.                  Despite this

information, Urdaneta never provided the required documents in order to make his

application “complete.” For this reason alone, it was appropriate to enter summary


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judgment in favor of Wells Fargo. The failure to submit a complete application did

not trigger any duty by Wells Fargo under RESPA and doomed Urdaneta’s claim.

       Second, even if Urdaneta could be deemed to have submitted complete

applications, Wells Fargo complied with Regulation X. Under the plain language

of § 1024.41, a servicer is required only to “[e]valuate the borrower for all loss

mitigation options available to the borrower.” 12 C.F.R. § 1024.41(c)(1)(i). Wells

Fargo did this. On November 6, 2014—19 days following Urdaneta’s October 18,

2014 submission of his loan application—Wells Fargo advised him in writing that

it had reviewed his eligibility for three separate loss options but had determined

that he did not qualify for any of them based on the information provided by

Urdaneta.2

       Wells Fargo completed the same evaluation in relation to Urdaneta’s

February 27, 2015, loss-modification application. In fact, on May 13, 2015—

fewer than thirty days from Wells Fargo’s request for additional information from

Urdaneta—it again informed Urdaneta that it had reviewed his eligibility for the

same three loss-mitigation options but had determined that he did not qualify for

the programs. In each instance, Wells Fargo’s correspondence detailed why each

of the applications was denied. And significantly, each of these letters informed

Urdaneta that he had a right to appeal the decision within thirty days and explained

       2
      Wells Fargo reviewed Urdaneta’s eligibility for the Proprietary Step Rate Program, the
MAP2R Modification Program and Home Affordable Modification Program.
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how he could exercise that right. Wells Fargo’s letters therefore complied with the

requirements of § 1024.41(c)(ii).

           Based on this evidence, Wells Fargo complied with its obligations under

sections 1024.41(c)(1)(i) and (ii) of Regulation X concerning the loss-mitigation

applications submitted by Urdaneta from 2014 through 2016. Thus, the district

court properly determined that Wells Fargo was entitled to summary judgment on

the merits. 3

       Finally, Urdaneta’s claim of a right to judicial review of the loan-

modification process is not a separate cause of action.                  Rather, it is merely

duplicative of the RESPA claim, contained in the same count. Accordingly, the

claim fails for the reasons already discussed.

       Ultimately, we conclude that the district court did not err when it entered

summary judgment in favor of Wells Fargo. We therefore affirm.

       AFFIRMED.




       3
          We also note that damages are an “essential element” of a RESPA claim. Renfroe v.
Nationstar Mortg., LLC, 822 F.3d 1241, 1246 (11th Cir. 2016). RESPA provides for only two
types of damages: (1) actual damages suffered by the borrower as a result of the RESPA
violation and (2) any additional damages from a pattern or practice of noncompliance by the
servicer. 12 U.S.C. § 2605(f)(1); Lage, 839 F.3d at 1011. While we do not decide the outcome
of this appeal on this ground, we note that Urdaneta appears to have failed to establish that he
suffered damages resulting from Wells Fargo’s alleged RESPA violation. The Amended
Complaint is devoid of allegations or facts that support a finding that he incurred actual damages
as a result of Wells Fargo’s alleged mishandling of his loss-mitigation applications. It also fails
to demonstrate a pattern or practice of noncompliance by Wells Fargo.
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