               Case: 15-15558       Date Filed: 10/07/2016       Page: 1 of 18


                                                                                  [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                    No. 15-15558
                              ________________________

                           D.C. Docket No. 9:14-cv-81522-BB


JOHN LAGE,
MARIA MANTILLA,

                                                         Plaintiffs - Appellants,

                                            versus

OCWEN LOAN SERVICING LLC,

                                                         Defendant - Appellee.

                              ________________________

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

                                     (October 7, 2016)

Before WILLIAM PRYOR and JILL PRYOR, Circuit Judges, and VOORHEES, *
District Judge.

PER CURIAM:

       *
         Honorable Richard L. Voorhees, United States District Judge, for the Western District
of North Carolina, sitting by designation.
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      In this appeal we consider whether loan servicer Ocwen Loan Servicing,

LLC had a duty to evaluate an application for loss mitigation options submitted by

borrowers John Lage and Maria Mantilla (“Borrowers”) when, at the time the

application was submitted, a foreclosure sale of the Borrowers’ property was

scheduled to occur in two days. Under Regulation X, 1 which implements the Real

Estate Settlement Procedures Act (“RESPA”), 2 a loan servicer’s duty to evaluate a

borrower’s loss mitigation application is triggered only when the borrower submits

the application more than 37 days before the foreclosure sale. The Borrowers

contend their application was timely because Ocwen subsequently postponed the

foreclosure sale such that the sale actually transpired more than 37 days after they

submitted their complete loss mitigation application. But Regulation X requires us

to measure the timeliness of the Borrowers’ application using the date the

foreclosure sale was scheduled to occur when they submitted their complete

application. Because the Borrowers’ application was untimely, we agree with the

district court that Ocwen had no duty to evaluate the Borrowers’ loss mitigation

application; we thus affirm the district court’s grant of summary judgment to

Ocwen on the Borrowers’ claim seeking to hold Ocwen liable for failing to

evaluate their loss mitigation application.
      1
          12 C.F.R. part 1024.
      2
          12 U.S.C. § 2601 et seq.



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         The Borrowers also challenge summary judgment entered on their separate

claim that Ocwen failed to respond adequately to their subsequent notice of error

as required by Regulation X. We agree with the district court that to survive

summary judgment the Borrowers had to present evidence that they suffered actual

damages or were entitled to statutory damages and that they failed to do so.

Therefore we affirm the district court’s grant of summary judgment with respect to

the Borrowers’ claim based on Ocwen’s inadequate response to their notice of

error.

                                 I.      BACKGROUND

A.       Regulation X
         This case requires us to consider two provisions of Regulation X: one

setting forth the procedures governing a servicer’s review of a loss mitigation

application, 12 C.F.R. § 1024.41, and the other requiring a loan servicer to respond

to a notice from a borrower identifying an error in the servicing of his mortgage

loan, id. § 1024.35. These provisions went into effect on January 10, 2014. See

Mortgage Servicing Rules Under the Real Estate Settlement Procedures Act,

78 Fed. Reg. 10696, 10696 (Feb. 14, 2013).

         The first provision dictates how a mortgage loan servicer must review a

borrower’s loss mitigation application. See 12 C.F.R. § 1024.41. A loss mitigation

application is simply a request by a borrower for any of a number of alternatives to



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foreclosure, known as loss mitigation options, including, among others,

modification of the mortgage. See id. § 1024.31 (“Loss mitigation option means

an alternative to foreclosure offered by the owner or assignee of a mortgage loan

that is made available through the servicer to the borrower.”).

      When a borrower submits a loss mitigation application at least 45 days

before a foreclosure sale, the servicer must review the application promptly to

determine if it is “complete.” Id. § 1024.41(b)(2). For applications submitted 45

days or more before a foreclosure sale, the servicer must notify the borrower

within five business days of receiving the application whether the application is

complete or incomplete. Id. § 1024.41(b)(2)(i)(B). An application is considered

complete 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.” Id. §1024.41(b)(1); see also 12 C.F.R. pt. 1024, supp.

I, § 41(b)(1) cmt. 1 (“A servicer has flexibility to establish its own application

requirements and to decide the type and amount of information it will require from

borrowers applying for loss mitigation options.”).

      If the application is incomplete, the servicer must provide the borrower with

an opportunity to supplement the application. The servicer must notify the

borrower what additional documents and information it needs to review the

application and give the borrower an opportunity to submit the requested materials.



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See 12 C.F.R. § 1024.41(b)(2)(i)(B), (c)(2)(iv). 3 Once the borrower submits the

requested materials or if the servicer initially determines that the application is

complete, then the application is considered “facially complete” for purposes of

§ 1024.41. Id. § 1024.41(c)(2)(iv). 4

       The servicer then reviews the application to determine whether the borrower

is eligible for any loss mitigation options. Id. § 1024.41(c)(1)(i). But a servicer

only has a duty to evaluate a complete loss mitigation application that it receives

“more than 37 days before a foreclosure sale.” Id. § 1024.41(c)(1). When

reviewing an application, the servicer must consider all loss mitigation options

available to the borrower and notify the borrower in writing what options, if any, it

will offer. Id. § 1024.41(c)(1)(i)-(ii).5 The regulations require the servicer to

complete its review within 30 days of receiving the borrower’s complete

application. Id. § 1024.41(c)(1).6 If a servicer fails to evaluate a borrower’s loss

       3
         The servicer must “exercise reasonable diligence in obtaining documents and
information to complete a loss mitigation application.” 12 C.F.R. § 1024.41(b)(1).
       4
         If the borrower fails to provide the requested information, after a “significant period of
time under the circumstances,” the servicer may, in its discretion, evaluate the incomplete loss
mitigation application. 12 C.F.R. § 1024.41(c)(2)(ii).
       5
          In general, until the servicer notifies the borrower that she is ineligible for any loss
mitigation option or the borrower rejects all loss mitigation options offered by the servicer, the
servicer is prohibited from completing the foreclosure sale. 12 C.F.R. § 1024.41(g).
       6
         When evaluating a facially complete application, the servicer may determine that it
needs additional or corrected information from the borrower to complete its review of the
application. 12 C.F.R. § 1024.41(c)(2)(iv). The servicer may “request the missing information
or corrected documents” from the borrower and must give the borrower a “reasonable
opportunity” to comply with the servicer’s supplemental request. Id.


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mitigation application within 30 days, the borrower has a private right of action

under RESPA. See id. § 1024.41(a) (“A borrower may enforce the provisions of

this section pursuant to section 6(f) of RESPA (12 U.S.C. [§] 2605(f).”); 12 U.S.C.

§ 2605(f) (creating a private right of action for a borrower to sue “[w]hoever fails

to comply with any provision of this section”).

      The second provision of Regulation X at issue in this case requires a servicer

to investigate and respond to written notice from a borrower asserting that there

was an error related to the servicing of his mortgage loan. 12 C.F.R. § 1024.35(a),

(e). Under this provision, a servicer must investigate and respond to a notice from

a borrower that the servicer “[f]ail[ed] to provide accurate information to a

borrower regarding loss mitigation options and foreclosure.” Id. § 1024.35(b)(7).

With a few exceptions inapplicable here, the servicer must either correct the errors

the borrower identified and notify the borrower in writing or, after a reasonable

investigation, notify the borrower in writing that it has determined no error

occurred and explain the basis for its decision. Id. § 1024.35(e)(1)(i). The servicer

generally has 30 business days to respond to a notice of error. Id.

§ 1024.35(e)(3)(i)(C). If the servicer fails to respond adequately to the borrower’s

notice of error, then the borrower has a private right of action to sue the servicer

under RESPA. 12 U.S.C. § 2605(e)(2), (f).




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B.     Factual Background
       The Borrowers obtained a loan secured by a mortgage on their residential

property in Boynton Beach, Florida.7 Three years later when the Borrowers fell

behind on their loan payments, their original servicer initiated judicial foreclosure

proceedings in state court. While the foreclosure proceedings were pending,

Ocwen became the loan servicer. Subsequently, the state court entered a final

judgment of foreclosure. The foreclosure sale originally was scheduled for

January 29, 2014.

       Three weeks before the scheduled foreclosure sale, on January 8, the

Borrowers faxed a loss mitigation application to Ocwen. With their application,

the Borrowers provided detailed information about their income and expenses

along with copies of pay stubs, their most recent tax returns, and other financial

records. The next day, Ocwen acknowledged receipt of the application and

explained that it would notify the Borrowers if it needed additional documents.

Over the next two weeks, the Borrowers and Ocwen communicated about the loss

mitigation application. At a January 24 mediation, Ocwen told the Borrowers that

once they submitted one additional paystub, it would evaluate their application.

The Borrowers provided that paystub on January 27.

       7
          We recite the facts here based on undisputed evidence in the record and, where material
facts are in dispute, we resolve the dispute in favor of the Borrowers as we must on review of the
summary judgment in favor of Ocwen. See McCullough v. Antolini, 559 F.3d 1201, 1202 (11th
Cir. 2009).



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      On January 28, the foreclosure sale scheduled for the next day was cancelled

and rescheduled for March 14. Although the Borrowers had submitted the

additional paystub, Ocwen did not conduct its loss mitigation review. Instead,

three days later, on January 31, Ocwen requested that the Borrowers submit two

more paystubs. Twice thereafter Ocwen informed the Borrowers that it needed

additional information to review their application. According to Ocwen, the

Borrowers finally submitted all necessary information and documents on March 7.

Two days later, Ocwen denied the Borrowers’ loan modification request as

untimely because the foreclosure sale was scheduled to occur within 7 days. The

foreclosure sale took place on March 14 as scheduled.

      After the foreclosure sale, the Borrowers remained in the home for several

months. They sent Ocwen a notice of error asserting that it failed to comply with

Regulation X in reviewing their loss mitigation application. The Borrowers

asserted that Ocwen failed to fulfill its duty to evaluate their application within 30

days as required under § 1024.41. Among other points, they contended that

Ocwen had unduly delayed and drawn out the review process and then relied on its

own delay as the basis for deeming the application untimely.

      Ocwen acknowledged receipt of the notice of error and timely responded.

Ocwen provided a generic response to the Borrowers’ concerns about Ocwen

delaying its response to their loan modification application stating that the “terms



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of any possible modification are determined by many factors” and referring the

Borrowers to the March denial letter. October 14, 2014 Letter (Doc. 49-10).8

Ocwen admitted that this response was based on a template and that the letter did

not specifically address the Borrowers’ concerns.

C.     Procedural Background
       The Borrowers filed this action against Ocwen in federal district court,

alleging that Ocwen was liable under RESPA because it violated Regulation X

when it failed to evaluate the merits of their loss mitigation application within 30

days as required under 12 C.F.R. § 1024.41(c). 9 They also alleged that Ocwen was

liable under RESPA because it responded inadequately to their notice of error, in

violation of 12 C.F.R. § 1024.35(e).10

       After discovery, Ocwen moved for summary judgment, and the district court

granted the motion. First, with regard to the loss mitigation claim, the court

determined that Ocwen had no duty to evaluate the Borrowers’ loss mitigation


       8
           Citations to “Doc.” refer to docket entries in the district court record in this case.
       9
         The Borrowers did not allege that Ocwen failed to “exercise reasonable diligence in
obtaining documents and information to complete a loss mitigation application.” 12 C.F.R.
§ 1024.41(b)(1).
       10
           The Borrowers also brought a separate negligence claim asserting that Ocwen breached
duties that it owed to the Borrowers under Regulation X to review their loss mitigation
application and respond to their notice of error. But the Borrowers concede that they can prevail
on their negligence claim only if Ocwen had a duty to evaluate their loss mitigation application.
Because, as explained below, Ocwen had no duty to review their loss mitigation application, the
district court properly granted summary judgment on their negligence claim.



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application under 12 C.F.R. § 1024.41 because the regulation was not in effect at

the time the Borrowers submitted their January 8, 2014 loss mitigation request.

Because Ocwen owed no duty, the district court concluded that it was not liable

under § 1024.41 as a matter of law. Second, with regard to the notice of error

claim, the court concluded that Borrowers had presented sufficient evidence to

prove a violation of the regulation but failed to provide evidence of statutory or

actual damages as required to sustain a claim under § 1024.35(e). Accordingly, the

court granted Ocwen’s motion and entered final judgment in favor of Ocwen. This

appeal followed.

                        II.    STANDARD OF REVIEW
      We review a district court’s grant of summary judgment de novo, viewing

the evidence in the light most favorable to the nonmoving party. Likes v. DHL

Express (USA), Inc., 787 F.3d 1096, 1098 (11th Cir. 2015). Summary judgment is

appropriate when “the movant shows 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). A genuine dispute of material fact exists when “the evidence is such

that a reasonable jury could return a verdict for the nonmoving party.” Likes,

787 F.3d at 1098 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)). We “may affirm for any reason supported by the record, even if not relied




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upon by the district court.” Allen v. USAA Cas. Ins. Co., 790 F.3d 1274, 1278

(11th Cir. 2015).

                                 III.   ANALYSIS
      On appeal, the Borrowers argue that the district court erred in granting

summary judgment for two reasons. First, they contend that Ocwen breached its

duty to evaluate their loss mitigation application within 30 days as required under

§ 1024.41. The district court granted summary judgment on the basis that Ocwen

was not required to comply with § 1024.41 because the Borrowers submitted their

initial loss mitigation application before § 1024.41 came into effect on January 10,

2014, even though their application became facially complete and then actually

complete after § 1024.41’s effective date. We need not decide whether a servicer

must comply with § 1024.41 when an application was initially submitted before

§ 1024.41’s effective date but became complete after the effective date because,

even assuming that § 1024.41 applies to such an application, the Borrowers’

application was untimely. At the time the Borrowers submitted their application,

the foreclosure sale was scheduled to occur within 37 days.

      Second, the Borrowers argue that the district court erred in concluding that

they failed to provide sufficient evidence of statutory damages for their notice of

error claim. Because RESPA requires proof of a pattern or practice to invoke

statutory damages and the Borrowers submitted evidence of only one potential



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violation—Ocwen’s failure to respond sufficiently to the Borrowers’ notice—we

find no error.

A.    Loss Mitigation Claim
      The Borrowers’ claim that Ocwen violated §1024.41(c) fails because they

completed their loss mitigation application too late to trigger Ocwen’s duty to

evaluate the application. 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.” 12 C.F.R. § 1024.41(c)(1). The Borrowers contend their

application was complete as of January 27, and we assume for purposes of this

appeal that this was true. Because Ocwen received the Borrowers’ complete

application just two days before the foreclosure sale scheduled for January 29,

however, Ocwen had no duty to evaluate the Borrowers’ application.

      To evaluate the timeliness of an application, Regulation X requires us to

count the number of days between the date the servicer received the complete loss

mitigation application and the date of the foreclosure sale. See id. To determine

the date of the foreclosure sale, Regulation X directs us to use the date on which

the foreclosure sale was scheduled when the borrower submitted her completed

application:

      To the extent a determination of whether protections under this
      section apply to a borrower is made on the basis of the number of days


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      between when a complete loss mitigation application is received and
      when a foreclosure sale occurs, such determination shall be made as
      of the date a complete loss mitigation application is received.

12 C.F.R. § 1024.41(b)(3) (emphasis added). In other words, to determine whether

the Borrowers’ application was timely, we must ask whether, when the Borrowers

submitted their complete loss mitigation application on January 27, more than 37

days remained before the foreclosure sale was scheduled to occur. Id. Because we

determine timeliness based on the scheduled date of the foreclosure sale as of the

date the Borrowers’ complete application was received, it is irrelevant to our

timeliness analysis that Ocwen subsequently rescheduled the foreclosure sale for a

later date. See id.

      The Borrowers argue that we must use the date when the property was

actually sold at foreclosure to assess whether their application was timely. They

assert that because §1024.41(b)(3) discusses when the foreclosure sale “occurs,”

the relevant date for measuring timeliness is the date the foreclosure sale actually

transpires. But this interpretation is inconsistent with the final clause of paragraph

(b)(3), which plainly states that we must measure the proximity between the date

of the foreclosure sale and the receipt of the complete loss mitigation application

“as of the date a complete loss mitigation application is received.” Id. We cannot

adopt the Borrowers’ interpretation because it would render this phrase in the

regulation meaningless. See Glazer v. Reliance Standard Life Ins. Co., 524 F.3d



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1241, 1245 (11th Cir. 2008) (applying rule of construction that a court must avoid

an interpretation that would render portion of regulation “superfluous”).

      Because paragraph (b)(3) is unambiguous on this point, we need not

consider the way that the Consumer Financial Protection Bureau (the “Bureau”)

has interpreted the regulation. See Christensen v. Harris Cty., 529 U.S. 576, 588

(2000) (explaining that we defer to an agency’s interpretation of its own regulation

only where the regulation is ambiguous). Nonetheless, we observe that our

interpretation of paragraph (b)(3) is consistent with the commentary from the

Bureau when it adopted the regulation. See Amendments to the 2013 Mortgage

Rules, 78 Fed. Reg. 60382, 60396-97 (Oct. 1, 2013). After receiving questions

about how the timing provisions in § 1024.41 worked when a foreclosure sale was

rescheduled after a completed application was received, the Bureau explained that

“for purposes of § 1024.41, timelines based on the proximity of a foreclosure sale

to the receipt of a complete loss mitigation application will be determined as of the

date a complete loss mitigation application is received.” Id. at 60397. The Bureau

explained that this approach would “provide[] certainty to both servicers and

borrowers” and “balance[] consumer protection and servicer needs.” Id.

      The Bureau considered and rejected a proposal that would have altered a

borrower’s rights and the servicer’s corresponding duties if a foreclosure sale was

rescheduled after receipt of a complete loss mitigation application—that is, the



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Bureau expressly disavowed the Borrowers’ argument. The Bureau explained that

“structuring the rule such that a borrower’s rights may be added or removed

because a foreclosure sale was moved or rescheduled would not provide the

certainty or simplicity created by the proposed rule.” Id. The Bureau thus made

clear that an untimely application should not become timely simply because the

servicer rescheduled a foreclosure sale.

      The Bureau recognized that allowing a servicer’s delay of a foreclosure sale

to give a borrower greater rights may discourage servicers from rescheduling

foreclosure sales and voluntarily considering untimely applications—actions which

benefit borrowers. See id. (expressing “concern[] that if moving a foreclosure sale

to a later date could trigger new protections, such a policy may provide a

disincentive for a servicer to reschedule a foreclosure sale for a later date”). Stated

another way, the Bureau acknowledged that if a borrower’s late application could

become timely—and trigger the servicer’s duty to evaluate the application under

§ 1024.41—as a result of the servicer voluntarily postponing a foreclosure sale,

then it may be to the servicer’s advantage to proceed with the scheduled

foreclosure instead of evaluating the borrower for loss mitigation options. See

78 Fed. Reg. at 10821 (discussing that some servicers may choose to review loss

mitigation applications submitted 37 days or less before a foreclosure sale);

12 C.F.R. pt. 1024, supp. I, § 41(c)(2)(i) cmt. 1 (recognizing that a servicer may



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voluntarily offer loss mitigation options to a borrower who submitted an untimely

or incomplete loss mitigation application). The Bureau was concerned that the

likely result of using the actual date of the foreclosure sale to assess timeliness

would be that fewer borrowers would ultimately benefit from loss mitigation

options.

      Because the Borrowers’ loss mitigation application was untimely, the

protections of 12 C.F.R. § 1024.41(c) never were triggered. Accordingly, we find

no error in the district court’s grant of summary judgment to Ocwen on the

Borrowers’ loss mitigation claim.

B.    Notice of Error Claim
      The Borrowers next argue that the district court erred in granting summary

judgment to Ocwen on their notice of error claim on the ground that the Borrowers

failed to present evidence that they were entitled to damages arising out of

Ocwen’s inadequate response. Because the Borrowers acknowledge that our ruling

against their argument about loss mitigation evidence renders their theory of actual

damages nonviable, we must consider whether they presented evidence of a pattern

or practice of RESPA noncompliance to support an award of statutory damages.

We conclude they have not.

      Damages are “an essential element” of a RESPA claim. Renfroe v.

Nationstar Mortg., LLC, 822 F.3d 1241, 1246 (11th Cir. 2016). RESPA



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recognizes two types of damages: (1) actual damages the borrower sustained as a

result of the RESPA violation and (2) “any additional damages, as the court may

allow, in the case of a pattern or practice of noncompliance with the requirements

of this section, in an amount not to exceed $2,000.” 12 U.S.C. § 2605(f)(1). 11

       Although “RESPA pattern-or-practice damages are not clearly defined by

this Court’s precedent,” Renfroe, 822 F.3d at 1247, we can safely say that one

RESPA violation, standing alone, does not constitute a pattern or practice. Indeed,

in Renfroe, we recognized that other courts had held that “two violations of

RESPA are insufficient to support a claim for statutory damages.” Id. (internal

quotation marks omitted). Because the Borrowers put forth no evidence of RESPA

violations other than the one notice of error violation alleged in their complaint,

they cannot show a pattern or practice.

       The Borrowers argue that Ocwen’s use of a template to respond to their

notice of error supports a reasonable inference that Ocwen engaged in a pattern of

providing insufficient responses to notices of error lodged by other borrowers.

More specifically, they argue that it is “entirely reasonable to infer that Ocwen

       11
           In Renfroe, we acknowledged that we have “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.” Renfroe, 822 F.3d at 1247 n.4. But
“we observe[d] 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.” Id.
We do not answer this question here because, as we explain below, the Borrowers failed to
produce evidence of a pattern or practice of RESPA violations and thus failed to prove their
entitlement to statutory damages.



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generated this inadequate form letter in order to send it to a large number of

borrowers in response to any [notice of error] that Borrowers, or any similarly

situated borrower, may have sent. Indeed, it would be unreasonable to believe that

Ocwen generated a nonresponsive form letter[] and only sent it to Borrowers.”

Appellants’ Br. at 20-21.

      The Borrowers assume too much. Simply using a template to respond to a

notice of error does not violate RESPA. The Borrowers presented no evidence

from which we can infer that Ocwen had a pattern or practice of issuing form

letters that were unresponsive to borrowers’ notices of error. Cf. Renfroe,

822 F.3d at 1247 (holding that allegations that a nonresponsive form letter was sent

to borrowers on five separate occasions was sufficient to plead a pattern or practice

of RESPA noncompliance). Accordingly, the Borrowers failed to present evidence

of a pattern or practice of RESPA noncompliance that would support a claim for

statutory damages. The district court did not err in granting summary judgment in

favor of Ocwen on the Borrowers’ notice of error claim.

                              IV.    CONCLUSION
      For the foregoing reasons, we affirm the district court’s judgment.

      AFFIRMED.




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