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                                                                                 [PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                    No. 15-10582
                              ________________________

                         D.C. Docket No. 1:14-cv-00314-CG-M



MARGARET C. RENFROE,

                                                                        Plaintiff-Appellant,

                                            versus

NATIONSTAR MORTGAGE, LLC,

                                                                       Defendant-Appellee.

                              ________________________

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

                                       (May 12, 2016)

Before WILSON and MARTIN, Circuit Judges, and RODGERS, ∗ District Judge.

MARTIN, Circuit Judge:

       ∗
          Honorable Margaret C. Rodgers, United States District Chief Judge for the Northern
District of Florida, sitting by designation.
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      Margaret Renfroe is a retired bank manager who claims that her mortgage

payment incorrectly increased after Nationstar Mortgage, LLC (“Nationstar”)

began servicing her loan. She wrote Nationstar to ask why her payment had gone

up, but Nationstar gave no explanation. Instead, it said her account was correct

and attached some loan documents. Mrs. Renfroe sued Nationstar under the Real

Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601 et seq., a

consumer-protection statute geared toward mortgagors. Nationstar succeeded in

getting the suit dismissed, after which Mrs. Renfroe appealed to this Court.

Because the District Court improperly elevated Nationstar’s allegations over those

of Mrs. Renfroe at the motion-to-dismiss stage, and because Mrs. Renfroe

adequately pleaded damages, we REVERSE and REMAND for proceedings

consistent with this opinion.

                                I. BACKGROUND

A.    MORTGAGE SERVICING ERROR

      In 2006, Mrs. Renfroe refinanced her mortgage with Wilmington Finance,

Inc. at a fixed rate of 7.75 percent for a 30-year term, with monthly payments of

$998.68. After several years, servicing of the loan was transferred to Nationstar.

Mrs. Renfroe alleges that after this transfer, her monthly payments increased by

about $100.




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       Mrs. Renfroe says she repeatedly called Nationstar seeking an explanation,

but got none. She suspected that Nationstar was either mistakenly charging her for

property taxes or had miscalculated her loan amortization schedule. In September

2013, Mrs. Renfroe refinanced her mortgage with Regions Bank, which ended

Nationstar’s servicing of the loan.

B.     THE RESPA LETTERS

       On June 17, 2014, Mrs. Renfroe sent Nationstar a letter pointing out the

increase in payment, as well as her suspicions about its cause. She requested an

investigation, a “detailed explanation,” certain account information, and a refund if

appropriate. She attached several loan documents in support of her letter. This

“notice of error” letter triggered certain rights Mrs. Renfroe possesses under

RESPA. See 12 U.S.C. § 2605(e).

       On June 26, 2014, Nationstar responded to Mrs. Renfroe’s letter. It denied

any error, stating that the “loan and related documents were reviewed and found to

comply with all state and federal guidelines that regulate them. As such, the

above-mentioned loan account will continue to be serviced appropriate to its

status.”1 Nationstar also represented that several loan documents were enclosed,

but none of these enclosures are contained in the record. Mrs. Renfroe had not

requested many of the documents that Nationstar listed, and some were even

       1
          Of course, Nationstar had stopped servicing Mrs. Renfroe’s mortgage nearly a year
before it sent this response, so at least the latter part of Nationstar’s statement was not accurate.
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duplicates of the documents that she had sent to Nationstar. While Nationstar

described the kind of information that generic documents of these types might

contain, its letter said nothing about the substantive content of the documents and

gave no explanation for Mrs. Renfroe’s predicament.

C.    PROCEDURAL HISTORY

      A month later, Mrs. Renfroe filed this suit. For our purposes here, she

claimed that Nationstar had violated RESPA by failing to reasonably investigate

the error she pointed out in her account, by failing to adequately respond to her

notice of error, and by failing to refund her overpayments. Nationstar moved to

dismiss Mrs. Renfroe’s amended complaint for failure to state a claim, arguing that

it had satisfied its obligations under RESPA and that Mrs. Renfroe had not

adequately pleaded damages. Mrs. Renfroe responded that Nationstar had not

complied with RESPA, and this failure damaged her.

      The Magistrate Judge recommended granting Nationstar’s motion to

dismiss. The judge reasoned that Nationstar complied with RESPA because it

“explain[ed] that ‘related documents [to the loan] were reviewed.’” Although

those documents were nowhere in the record, the Magistrate Judge concluded that

“[s]uch an explanation satisfies RESPA.” Alternatively, the judge stated that Mrs.

Renfroe had not pleaded damages under RESPA. First, because the overpayments

occurred before Mrs. Renfroe wrote to Nationstar, the judge found that any such

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damages “sound in breach of contract . . . and not in a RESPA violation.” Second,

the Magistrate Judge rejected the idea that Mrs. Renfroe could count the cost of

sending her “notice of error” letter as damages. Finally, the judge stated that no

statutory “pattern or practice” damages could accrue without actual damages.

      The District Court overruled Mrs. Renfroe’s objections to the Magistrate

Judge’s report, adopted it, and dismissed the complaint without prejudice. Mrs.

Renfroe timely appealed to this Court.

                           II. STANDARD OF REVIEW

      “We review de novo the district court’s grant of a motion to dismiss for

failure to state a claim under Fed. R. Civ. P. 12(b)(6), accepting the allegations in

the complaint as true and construing them in the light most favorable to the

plaintiff.” Timson v. Sampson, 518 F.3d 870, 872 (11th Cir. 2008) (per curiam).

To survive a motion to dismiss, a complaint need only present sufficient facts,

accepted as true, to “state a claim to relief that is plausible on its face.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 556, 570, 127 S. Ct. 1955, 1965, 1974 (2007).

The complaint must “raise a right to relief above the speculative level,” but it need

not contain “detailed factual allegations.” Id. at 555, 127 S. Ct. at 1964–65.

                                  III. DISCUSSION

      We consider two aspects of Mrs. Renfroe’s claim: (1) whether she stated a

RESPA violation, and (2) whether she stated damages related to that violation.

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Guiding this analysis is the principle that RESPA, as a remedial consumer-

protection statute, should be construed liberally in order to best serve Congress’s

intent. Cf. Ellis v. Gen. Motors Acceptance Corp., 160 F.3d 703, 707 (11th Cir.

1998).

A.    RESPA VIOLATION

      Nationstar argues that Mrs. Renfroe failed to allege a RESPA violation.

RESPA requires mortgage servicers like Nationstar to reasonably respond to

notices of error like the one Mrs. Renfroe sent. Basically, a servicer must respond

by fixing the error, crediting the borrower’s account, and notifying the borrower;

or by concluding that there is no error based on an investigation and then

explaining that conclusion in writing to the borrower. See 12 U.S.C. § 2605(e)(2);

12 C.F.R. § 1024.35(e)(1)(i). In 2013, the Consumer Financial Protection Bureau

promulgated new regulations that clarified servicers’ obligations after receiving a

notice of error:

      [A] servicer must respond to a notice of error by either:

             (A) Correcting the error or errors identified by the borrower and
             providing the borrower with a written notification of the
             correction, the effective date of the correction, and contact
             information, including a telephone number, for further
             assistance; or

             (B) Conducting a reasonable investigation and providing the
             borrower with a written notification that includes a statement
             that the servicer has determined that no error occurred, a
             statement of the reason or reasons for this determination, a
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               statement of the borrower’s right to request documents relied
               upon by the servicer in reaching its determination, information
               regarding how the borrower can request such documents, and
               contact information, including a telephone number, for further
               assistance.

12 C.F.R. § 1024.35(e)(1)(i) (emphasis added). Nationstar says it chose and

complied with the second option. Thus, Nationstar purports to have: (1) conducted

a reasonable investigation; (2) concluded that there was no error based on that

investigation; (3) given Mrs. Renfroe a written statement of “the reason or reasons

for this determination”; and (4) facilitated Mrs. Renfroe’s access to further

information.

      In her amended complaint, Mrs. Renfroe alleged that Nationstar violated

RESPA because it failed to provide “any explanation” for its conclusion; failed to

provide “an explanation of whether it was charging . . . property taxes”; failed to

provide “an explanation of how payments were calculated and which amortization

schedule was used”; and failed to “conduct any reasonable investigation.” Instead,

Mrs. Renfroe asserts that Nationstar “provided boilerplate statements and

objections which do not apply to Mrs. Renfroe’s letter, provided information and

documents not requested[,] and without explanation[] stated the general conclusion

that it did nothing wrong in servicing the account.” Her allegations are supported

by Nationstar’s response letter. In its letter, Nationstar simply concluded, “[T]he

above-mentioned loan and related documents were reviewed and found to comply


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with all state and federal guidelines that regulate them. . . . [W]e did review the

account, and all transactions appear to be correct from our records review.”

Nationstar acknowledged at oral argument that its letter did not explain to Mrs.

Renfroe why the two errors she suspected were not present, and did not explain

why her payment had increased. It just said there was no error and pointed to

attachments.

      In sum, Mrs. Renfroe has plausibly alleged: (1) that Nationstar did not offer

a “written explanation” stating the “reason or reasons for [its] determination,” in

violation of 12 U.S.C. § 2605(e)(2)(B) and 12 C.F.R. § 1024.35(e)(1)(i)(B);

(2) that this failure indicated Nationstar’s investigation was unreasonable, in

violation of 12 U.S.C. § 2605(e)(2)(B) and 12 C.F.R. § 1024.35(e)(1)(i)(B); and

(3) that Nationstar’s unreasonable investigation prevented it from discovering and

appropriately correcting the account error, in violation of 12 U.S.C.

§ 2605(e)(2)(A) and 12 C.F.R. § 1024.35(e)(1)(i)(A). For these reasons, we

conclude that Mrs. Renfroe has stated a RESPA violation.

      Nationstar resists this outcome by saying that we should elevate its own

conclusions—taken from the response letter and its generic descriptions of

documents that are not in the record—over Mrs. Renfroe’s allegations. This

dangerous argument turns the standard for considering a Federal Rule of Civil

Procedure 12(b)(6) motion on its head. In reviewing Rule 12(b)(6) motions, courts

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are bound to accept the plaintiff’s allegations as true and to construe them in the

light most favorable to her. Timson, 518 F.3d at 872. Nationstar asks us to do the

opposite. Nationstar suggests we should accept its contrary allegations—that it

conducted a reasonable investigation into Mrs. Renfroe’s account and found no

error—and then to grant its motion to dismiss on that basis. We decline to do that.

       Nationstar wrongly relies on Griffin Industries, Inc. v. Irvin, 496 F.3d 1189

(11th Cir. 2007). That case says, “[W]hen the exhibits [attached to the complaint]

contradict the general and conclusory allegations of the pleading, the exhibits

govern.” Id. at 1206. The Griffin principle applies if the exhibits “plainly show”

that the complaint’s allegations are untrue by providing “specific factual details”

that “foreclose recovery as a matter of law.” Id. at 1205–06 (quotation omitted).

Nationstar’s response letter does not contain specific factual details that foreclose

Mrs. Renfroe’s recovery as a matter of law. Rather, it contains concededly

unexplained conclusions and generic descriptions of documents that are not in the

record.2 We cannot take Nationstar’s word that these mystery documents support

its conclusion and throw out Mrs. Renfroe’s case on that basis. If servicers want to

try to shelter behind their RESPA response letters, they must provide a more

comprehensive, supported explanation of their findings, or else introduce the
       2
         We are not aware of any precedent—and Nationstar has identified none—extending the
Griffin principle from facts in an attachment itself to an attachment’s generic descriptions of the
contents of other, undisclosed documents. Such a rule would essentially allow the introduction
of hearsay at the motion-to-dismiss stage, because it would force courts to accept secondhand
descriptions of documents without any way of assessing the validity of those descriptions.
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supporting attachments into the record and convert their motions to dismiss into

motions for summary judgment.

B.    DAMAGES

      Nationstar argues in the alternative that Mrs. Renfroe failed to allege

damages. RESPA makes violators liable to individual borrowers for “(A) any

actual damages to the borrower as a result of the failure; and (B) any additional

damages, as the court may allow, in the case of a pattern or practice of

noncompliance with the requirements of this section.” 12 U.S.C. § 2605(f)(1). We

join our sister Circuits in recognizing that damages are an essential element in

pleading a RESPA claim. See, e.g., Toone v. Wells Fargo Bank, N.A., 716 F.3d

516, 523 (10th Cir. 2013); Hintz v. JPMorgan Chase Bank, N.A., 686 F.3d 505,

510–11 (8th Cir. 2012). And we conclude that Mrs. Renfroe has sufficiently

pleaded damages at this stage.

      1.     Actual Damages

      We begin by considering whether Mrs. Renfroe pleaded “actual damages.”

RESPA states that actual damages arise “as a result of” the servicer’s alleged

violation. 12 U.S.C. § 2605(f)(1)(A). This language suggests there must be a

“causal link” between the alleged violation and the damages. Cf. Turner v.

Beneficial Corp., 242 F.3d 1023, 1028 (11th Cir. 2001) (en banc) (interpreting a

similarly phrased damages provision in a consumer-protection statute). Mrs.

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Renfroe alleged she sustained actual damages when Nationstar failed to refund her

mortgage overpayments. We conclude that this harm has a sufficient causal link to

Nationstar’s alleged violation.

       Mrs. Renfroe alleged that Nationstar’s failure to comply with RESPA—by

not discovering and refunding her overpayments—resulted in actual damage to her.

Accepting these allegations, if Nationstar had heeded its statutory duties, Mrs.

Renfroe would’ve gotten a refund.3 Nationstar argues that this damages theory

fails because Mrs. Renfroe’s damages occurred before she sent her notice of error.

Nationstar’s timing argument ignores the fact that a notice of error triggers present

RESPA obligations with respect to past error. See 12 U.S.C. § 2605(e) (creating a

“[d]uty of loan servicer to respond to borrower inquiries,” including by crediting

erroneous charges). This statutory mechanism makes past errors current by

requiring servicers to fix errors they find upon reasonable investigation, including

by issuing refunds as necessary. See id. § 2605(e)(2). Mrs. Renfroe alleged that

Nationstar failed to comply with RESPA after she sent a notice of error, and that

this failure harmed her.

       Beyond that, accepting Nationstar’s timing argument would mean gutting

RESPA. Nationstar acknowledged at oral argument that borrowers can send
       3
          This allegation implies that, had Nationstar conducted a reasonable investigation, it
would have discovered loan overpayments. We take Nationstar’s point that Mrs. Renfroe is not
entitled to a refund if there was not in fact an account error. And Nationstar can certainly try to
prove as much at a later stage of this case. But, as discussed earlier, the motion-to-dismiss
standard prevents us from accepting Nationstar’s unsupported assertion that there was no error.
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notices of error only after an error has occurred. We can hardly ask borrowers to

foretell errors that haven’t happened yet. If RESPA reached only future harm, as

Nationstar claims, § 2605(e)(2)(A)’s directive that servicers “make appropriate

corrections in the account of the borrower [when there is an error], including the

crediting of any late charges or penalties,” would be meaningless because it could

always be circumvented. That is, a servicer notified of an account error could

always avoid RESPA liability just by claiming it thought there was no error

and correcting the error going forward. According to Nationstar, a RESPA cause

of action would not accrue in this situation—despite the abusiveness of the tactic.

We reject such a cramped reading of RESPA. When a plaintiff plausibly alleges

that a servicer violated its statutory obligations and as a result the plaintiff did not

receive a refund of erroneous charges, she has been cognizably harmed.

         2.    Pattern-or-Practice Damages

         The District Court concluded that Mrs. Renfroe could not recover statutory

pattern-or-practice damages because she had not pleaded actual damages. 4 In light

of our holding that Mrs. Renfroe did plead actual damages, this conclusion cannot

stand.

         4
         The District Court apparently relied on the statutory language, which describes pattern-
or-practice damages as “additional.” 12 U.S.C. § 2605(f)(1)(B). This Court has not addressed in
a published opinion whether RESPA pattern-or-practice damages are available in the absence of
actual damages, and our unpublished opinions have used conflicting language. The question is
not now before us, but we observe without ruling on the question, that the use of “additional”
seems to indicate that a plaintiff cannot recover pattern-or-practice damages in the absence of
actual damages.
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      The District Court also stated that “submitting one additional allegedly

deficient [servicer ]response [letter] is insufficient to establish a pattern or practice

warranting statutory damages.” RESPA pattern-or-practice damages are not

clearly defined by this Court’s precedent. In another context, a “pattern or

practice” has been defined as a “standard operating procedure—the regular rather

than the unusual practice.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324,

336, 97 S. Ct. 1843, 1855 (1977). Thus, the Tenth Circuit has held that a plaintiff

must allege some RESPA violations “with respect to other borrowers.” Toone,

716 F.3d at 523. “Though there is no magic number of violations that create a

‘pattern or practice of noncompliance,’ courts have held that two violations of

RESPA are insufficient to support a claim for statutory damages.” Kapsis v. Am.

Home Mortg. Servicing Inc., 923 F. Supp. 2d 430, 445 (E.D.N.Y. 2013). On the

other hand, allegations of five RESPA violations have been deemed adequate to

plead statutory damages. Ploog v. HomeSide Lending, Inc., 209 F. Supp. 2d 863,

868–69 (N.D. Ill. 2002).

      Here, Mrs. Renfroe alleged four other RESPA violations, for a total of five.

Mrs. Renfroe specifically alleged that: (1) “Nationstar’s practice is to provide . . .

readily available documents in response to a [notice of error], regardless of the

individual requests made”; (2) “[Nationstar’s] practice is to use the standardize[d]

form-based response letter, like the one used to respond to Renfroe’s request,

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which contains boilerplate objections that are not tailored to the . . . individual

request”; (3) “On at least five separate occasions, including Mrs. Renfroe’s case,

Nationstar has used the same generic form letters to respond to [notices of error].

These form letter[s] were sent [to] borrowers in Birmingham, Alabama; Mobile[,]

Alabama[;] and Lexington, Maryland. In each situation, Nationstar’s form and

generic response failed to address the specific issues addressed in the borrower’s

letter and violated RESPA Section 2605(e)”; and (4) Nationstar’s patently

incorrect statement that Mrs. Renfroe’s loan would continue to be serviced showed

that a form letter was used.

      Nationstar attacks Mrs. Renfroe’s allegations regarding the other borrowers.

It criticizes her for “not disclos[ing] the identity of [these borrowers], the date of

the letters, or whether [these borrowers’] requests were similar to hers.” Here

again, Nationstar jumps ahead to a later stage of this case, ignoring the motion-to-

dismiss standard. “[W]e do not require heightened fact pleading of specifics, but

only enough facts to state a claim to relief that is plausible on its face.” Twombly,

550 U.S. at 570, 127 S. Ct. at 1974. Disclosing the identities of other borrowers,

the dates of the letters, and the specifics of their inquiries is not a prerequisite to

pleading statutory damages, and Nationstar cites no case saying otherwise. It is

enough, as Mrs. Renfroe did here, to plausibly allege “a pattern or practice of

noncompliance with the requirements of [RESPA].” 12 U.S.C. § 2605(f)(1)(B).

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                               IV. CONCLUSION

      Nationstar seeks the benefits of a motion to dismiss without abiding by the

rules governing that motion. Nationstar asks this Court to allow its allegations

about documents that are not in the record to “trump” Mrs. Renfroe’s allegations.

It asks this Court to require Mrs. Renfroe to plead specifics about every time that

Nationstar allegedly violated another borrower’s RESPA rights. These requests

are not compatible with a motion to dismiss. Because we conclude that Mrs.

Renfroe adequately pleaded a RESPA violation as well as actual and statutory

damages, we reverse and remand to the District Court for proceedings consistent

with this opinion.

      REVERSED AND REMANDED.




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