                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                             FOR THE TENTH CIRCUIT                        April 1, 2015

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
BRENDA A. OGDEN,

             Plaintiff - Appellant,

v.                                                         No. 14-1355
                                              (D.C. No. 1:13-CV-01620-MSK-MJW)
PNC BANK, a National Association,                           (D. Colo.)

             Defendant - Appellee.


                             ORDER AND JUDGMENT*


Before TYMKOVICH, O’BRIEN, and GORSUCH, Circuit Judges.


      Brenda A. Ogden appeals the dismissal of her one-count amended complaint

brought under the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C.

§§ 2601-2617. The district court dismissed the complaint under Fed. R. Civ. P.

12(b)(6), ruling that Ms. Ogden failed to plead actual damages caused by the alleged

RESPA violation. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the

district court’s judgment.

*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                            I

      In December 2012, Ms. Ogden sent a letter to her mortgage servicer, PNC

Bank (PNC), requesting information regarding why her payment amount had changed

and how her payment was being allocated to principal, interest, and escrow. She also

requested a reinstatement quote, a payoff quote, and a complete loan history report.

PNC never responded to the letter.

      Ms. Ogden subsequently initiated this suit, claiming that PNC’s failure to

respond violated § 2605(e) of RESPA. She alleged that PNC’s failure to furnish the

requested information was the proximate cause of her “actual damages, including

non-economic damages of emotional distress because [she] was confused by PNC’s

attempts to lower her payments, she wasn’t clear what her monthly payment was

supposed to be because PNC does not send her monthly mortgage statements, [and

she] had knowledge that PNC had made accounting mistakes . . . .” Aplt. App. at 6.

      PNC moved to dismiss under Rule 12(b)(6), and the district court granted the

motion, ruling that Ms. Ogden failed to allege a causal link between the alleged

violation and her claimed damages.1 The court explained that even if actual damages

could be predicated on emotional suffering, Ms. Ogden did not allege her emotional

distress resulted from PNC’s failure to respond; rather, she alleged that her distress
1
       A magistrate judge recommended dismissal on different grounds, including on
the rationale that actual damages do not include damages for emotional distress.
Ms. Ogden continues to challenge this determination on appeal, but we, like the
district court, assume without deciding that under these circumstances, actual
damages may be based on emotional distress.


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resulted from circumstances that began before she sent the letter. Ms. Ogden

challenges this ruling on appeal.

                                            II

      “We review de novo the grant of a Rule 12(b)(6) motion to dismiss for failure

to state a claim.” Toone v. Wells Fargo Bank, N.A., 716 F.3d 516, 520 (10th Cir.

2013) (internal quotation marks omitted). “To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to state a claim for

relief that is plausible on its face.” Id. (internal quotation marks omitted).

      Under RESPA, a mortgage servicer may be liable to a borrower if it fails to

timely and adequately respond to a qualified written request (QWR). See 12 U.S.C.

§ 2605(e)-(f). A QWR is a “written correspondence, other than notice on a payment

coupon,” that includes the name and account of the borrower and the reasons for the

borrower’s belief that the account is in error or adequate details about other

information sought. Id. § 2605(e)(1)(B). “Within sixty days of receipt of a QWR,

the loan servicer generally must investigate and make appropriate corrections to the

borrower’s account, provide a written notification of any correction or an explanation

why no correction was necessary, and provide a contact number for a representative.”

Berneike v. CitiMortgage, Inc., 708 F.3d 1141, 1145 (10th Cir. 2013).2 “If the

servicer fails to appropriately respond, the borrower may recover actual damages
2
       The response times of § 2605(e) have since been reduced. See 12 U.S.C.
§ 2605(e)(2); Berneike v. CitiMortgage, Inc., 708 F.3d 1141, 1145 n.3 (10th Cir.
2013).


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resulting from the servicer’s failure and any additional damages in the case of a

pattern or practice of noncompliance with the requirements of” § 2605. Id. (emphasis

added) (ellipsis and internal quotation marks omitted); see 12 U.S.C. § 2605(f)(1)(A)

(providing for “actual damages to the borrower as a result of the failure”).

      Here, Ms. Ogden did not allege that she suffered damages “resulting from the

servicer’s failure” to respond. Berneike, 708 F.3d at 1145. Rather, she alleged that

“[she] was confused by PNC’s attempts to lower her payments, she wasn’t clear what

her monthly payment was supposed to be because PNC does not send her monthly

mortgage statements, [and she] had knowledge that PNC had made accounting

mistakes . . . .” Aplt. App. at 6. Thus, her emotional distress, which is the only basis

upon which she claims actual damages, was caused by circumstances other than

PNC’s failure to respond. Indeed, as the district court observed, Ms. Ogden’s

emotional distress and the events that caused it all preceded her letter. But “to

survive a Rule 12(b)(6) motion to dismiss a claim under § 2605(e) of RESPA,

plaintiffs must plead actual damages stemming from the failure to respond.” Toone,

716 F.3d at 523. Ms. Ogden’s failure to do so was fatal to her claim. That PNC

might have alleviated her distress by responding with the requested information does

not change the fact that the distress was not caused by the failure to respond. And, to

the extent Ms. Ogden now contends she suffered additional emotional distress from

PNC’s failure to respond, she made no such allegation in her amended complaint.




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      Finally, Ms. Ogden says the district court should have sua sponte ordered her

to file a second amended complaint rather than dismiss for failure to state a claim.

But she did not seek leave to file a second amended complaint, and “a court need not

grant leave to amend when a party fails to file a formal motion,” Calderon v. Kan.

Dep’t of Soc. & Rehab. Servs., 181 F.3d 1180, 1186 (10th Cir. 1999). Under these

circumstances, the district court correctly dismissed the complaint for failure to state

a claim.

                                           III

      The judgment of the district court is affirmed.

                                                        Entered for the Court


                                                        Timothy M. Tymkovich
                                                        Circuit Judge




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