            Case: 17-11662   Date Filed: 01/31/2018   Page: 1 of 11


                                                           [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 17-11662
                          Non-Argument Calendar
                        ________________________

                 D.C. Docket No. 3:15-cv-01044-MMH-MCR


BLEU FINSTER,

                                                             Plaintiff-Appellant,

                                   versus

U.S. BANK NATIONAL ASSOCIATION,

                                                            Defendant-Appellee.

                        ________________________

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

                             (January 31, 2018)

Before MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:

     Bleu Finster is a Florida homeowner who claims that the servicer of her

home mortgage loan, U.S. Bank National Association (“U.S. Bank”), improperly
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rejected her permanent loan modification and instituted foreclosure proceedings

without providing her with notice and an opportunity to correct an error in her

modification agreement. When Finster realized that U.S. Bank had denied her

modification, she wrote U.S. Bank three times to ask it to correct the error and

process the modification. U.S. Bank refused, explaining that Finster failed to

properly execute the modification agreement. Finster then brought this lawsuit

against U.S. Bank alleging, in a third amended complaint, violations of the Real

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

implementing regulations (“Regulation X”), 12 C.F.R. part 1024, and the Florida

Consumer Collection Practices Act (“FCCPA”), Fla. Stat. § 559.72(9). The district

court granted summary judgment to U.S. Bank. After careful review, we affirm

the district court.

                                          I.

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

“considering the facts and drawing all reasonable inferences in the light most

favorable to the non-moving party.” Melton v. Abston, 841 F.3d 1207, 1219 (11th

Cir. 2016). “Summary judgment is appropriate ‘if 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.’” Id. (quoting Fed. R. Civ. P. 56(a)).




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      RESPA—as implemented by Regulation X—allows borrowers to notify

mortgage servicers of possible account errors. See Renfroe v. Nationstar Mortg.,

LLC, 822 F.3d 1241, 1244 (11th Cir. 2016). Once properly notified, a servicer

must respond 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 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). Account errors are broadly defined by § 1024.35(b),

which includes a residual category for “[a]ny other error relating to the servicing of

a borrower’s mortgage loan.” Id. § 1024.35(b)(11).

                                         II.

      In the light most favorable to Finster, the relevant facts are these. Finster

obtained a mortgage on her home in Duval County, Florida. U.S. Bank is the

servicer of the mortgage loan. After Finster defaulted, U.S. Bank filed the first of

two foreclosure actions against her. In July 2013, U.S. Bank obtained a final

judgment of foreclosure and the court set a judicial sale date for November 2013.
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      Before the sale, however, Finster submitted a loan-modification application

to U.S. Bank, which determined that she was eligible for a loan modification,

provided she made timely payments during a three-month trial period and then

completed and submitted a loan-modification agreement. Finster made all of the

required trial payments, so U.S. Bank dismissed the foreclosure action and sent her

a letter in February 2014 containing two copies of a loan-modification agreement

for her to execute and return.     Once these agreements were completed and

returned, U.S. Bank would process the permanent loan modification.

      According to U.S. Bank’s instructions, Finster needed to return “signed and

notarized originals” of the modification agreement within 10 days. Finster did not

return the originals, however. Instead, she signed copies of the originals, with

images of the “Sign & Date” and “Notarize” stickers copied onto the documents,

and returned those documents to U.S. Bank.        U.S. Bank did not execute the

documents because it found they did not comply with recording requirements.

      Around a month later, U.S. Bank sent to Finster’s counsel a second set of

loan-modification documents. But it did not explain why the new documents were

being sent or when they needed to be returned. U.S. Bank claims that it attempted

to contact Finster’s counsel in March and April of 2014 to explain why the

documents were being sent again, but counsel states that he has no record of such




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communications. When Finster did not return the second set of documents, U.S.

Bank denied Finster the modification.

      Finster continued making her trial modification payments after the trial

period, but U.S. Bank rejected them because it had denied the modification. And

because Finster’s payments were not sufficient to bring her loan current, U.S. Bank

considered her to be in default and so instituted a second foreclosure action.

      In August 2014, Finster, through counsel, sent U.S. Bank the first of three

“notices of error.” Finster asserted that U.S. Bank had violated two provisions in

12 C.F.R. § 1024.41, which governs a servicer’s review of a loss-mitigation

application, by (1) proceeding with foreclosure despite her performance of the

modification agreement, and (2) wrongfully terminating the modification without

provided her an opportunity to cure. U.S. Bank responded by letter in September

2014 that “no error occurred” and that it did not accept her modification package

because she had not correctly executed the modification documents. Specifically,

U.S. Bank stated, “the sign and date arrows were copied on to the modification

documents, which is against recording guidelines.” U.S. Bank claimed that due to

“stringent restrictions placed on us by your investor,” which was Fannie Mae, it

had to strictly comply with established regulations and guidelines.

      In February 2015, Finster sent a second notice-of-error letter. This letter

faulted U.S. Bank for failing to timely apply five of Finster’s mortgage payments


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to the principal, interest, and escrow. Once again, U.S. Bank responded that no

error occurred. According to U.S. Bank’s response, four of the payments were

held in “suspense” while Finster’s account was in “loss mitigation review” and

then applied to her account once U.S. Bank issued a “non-approval.” The final

payment was rejected, U.S. Bank stated, because it was not sufficient to bring her

account current after the modification was denied.

      Finster’s third and final notice of error alleged that U.S. Bank “wrongly

repudiated the borrower’s permanent loan modification agreement.” This letter

faulted U.S. Bank for failing to notify her in writing that her modification

agreement was not complete due to the lack of proper execution, which she said

was required by 12 C.F.R. § 1024.41(b)(2)(i)(B). To fix the error, according to

Finster’s counsel, U.S. Bank “must allow [Finster] to enter into the permanent

modification that she was performing under” by allowing her to re-sign the

modification documents.

      Again, U.S. Bank responded that no error occurred. U.S. Bank’s response

recounted the course of events, stating that Finster’s signed modification

agreement did not meet recording requirements, that U.S. Bank had tried to contact

Finster’s counsel in March and April 2014 without success, and that it removed her

account from loss-mitigation review when it did not receive re-executed loan

mitigation documents. U.S. Bank said its “decision remains unchanged.”


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      In May 2016, after Finster initiated this lawsuit, U.S. Bank allowed Finster

to re-execute the loan modification, waived the late fees and costs she had

accumulated since February 2014, dismissed the second foreclosure action, and

brought her loan current under the original terms of the loan modification.

                                        III.

      Finster’s RESPA claim is based on U.S. Bank’s alleged violation of its

responsibilities to respond to a borrower’s notice of error. Under Regulation X, as

explained above, a servicer must either correct the error identified by the borrower

or, after conducting a reasonable investigation, respond in writing with an

explanation of why it found no error and the information it relied on. 12 C.F.R.

§ 1024.35(e)(1)(i).   The district court concluded that undisputed evidence

established that U.S. Bank complied with these requirements by explaining its

reasons for denying Finster’s loan modification.         We agree that U.S. Bank’s

responses complied with RESPA by providing an explanation to Finster as to why

her loan modification was denied, even though she was understandably unsatisfied

with the responses and found U.S. Bank’s actions to be unreasonable.

      Finster nevertheless insists that U.S. Bank’s responses were deficient. Her

reasoning appears to be as follows. The “error” committed by U.S. Bank was its

failure to give her written notice of the problem with the modification documents

she submitted to U.S. Bank and a reasonable opportunity to cure before it denied


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the modification and instituted foreclosure proceedings.             So when U.S. Bank

received notice of that error, it had a responsibility either to correct the error, by

allowing her to re-execute the modification agreement, or to explain why it was not

required to give notice and an opportunity to cure. Since U.S. Bank did neither,

Finster asserts, it violated RESPA.

       However, Finster’s briefing to this Court cites no authority for the rule that

U.S. Bank was required to give her notice and an opportunity to re-execute the

modification agreement. Although Finster cited Regulation X for that proposition

in her third notice of error, specifically 12 C.F.R. § 1024.41(b)(2)(i)(B), she has

abandoned that position.1 Therefore, to the extent U.S. Bank could be faulted for

failing to specifically address whether it had a legal obligation under § 1024.41 to

provide Finster notice and an opportunity to cure, summary judgment was

nevertheless appropriate because Finster abandoned any claim based on U.S.

Bank’s failure to address § 1024.41 in its response to her notices of error.

       Finster instead argues that U.S. Bank’s obligation to provide notice and an

opportunity to cure arose from Fannie Mae’s guidelines and “the implied covenant

of good faith and fair dealing.” But we agree with the district court that Finster did

not mention these grounds in any of her notices of error. To be sure, absolute

       1
          Finster explains on appeal that “the loss mitigation procedures in Regulation X only
apply to the processing of an application, and are no longer applicable where, as here, the
application has been approved.” Finster’s Br. at 18. U.S. Bank agrees that 12 C.F.R. § 1024.41
does not apply.
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clarity in a notice of error is not required, and a servicer must respond when it “can

reasonably identify a valid assertion of an error.” 12 C.F.R. § 1024.35(g)(1)(ii).

Under the circumstances, however, no reasonable jury could conclude that U.S.

Bank’s failure to address unspoken grounds for a legal obligation asserted by a

borrower reflects the lack of a proper investigation or explanation.

       In fact, there is no evidence that Fannie Mae’s guidelines required U.S. Bank

to take the actions that Finster claims were necessary. She cites an “Error and

Omissions Compliance Agreement,” which she signed as part of the modification

agreement, but that agreement imposed no obligations on U.S. Bank. Rather, it

simply reflects that Finster agreed to cooperate in the correction of any clerical

errors in the agreement “if deemed necessary or desirable in the reasonable

discretion of the Lender” to enable the Lender to sell or market the loan. Nothing

in that agreement “entitles the borrower to written notice of any clerical error,” as

Finster alleges. Additionally, an excerpted transcript page from the deposition of

U.S. Bank’s corporate representative, Shanan Owen, suggests that Fannie Mae did

not “have an actual error resolution in their guidelines.”2

       Nor does the lack of evidence regarding Fannie Mae’s guidelines work in

Finster’s favor, as she suggests. U.S. Bank did not need to refute her unsupported

contention with evidence. Rather, it was Finster’s burden, as the party seeking to

       2
         Owen’s next sentence begins, “However, with the . . . ,” but the page ends at that point
and Finster did not submit any additional pages of the transcript.
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prevent summary judgment, to submit or identify evidence that created a genuine

issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257

(1986) (“[T]he plaintiff must present affirmative evidence in order to defeat a

properly supported motion for summary judgment.”).

      As for the implied covenant of good faith and fair dealing, Finster fails to

explain how it applies in the context of a servicer’s response to a notice of error.

She asserts that “the question of whether the clerical error was sufficient, in and of

itself, to result in the forfeiture of the loan modification would have to have been

evaluated in light of the implied covenant of good faith and fair dealing,” but she

brought no independent contract or good-faith-and-fair-dealing claim and does not

argue that U.S. Bank was required to honor the agreement as previously executed.

Accordingly, Finster’s arguments on this point provide no basis for reversal.

      The gist of Finster’s position seems to be that U.S. Bank’s actions were

unreasonable. And maybe they were. But unreasonable conduct by a servicer does

not necessarily amount to a violation of RESPA or Regulation X, even if their

requirements seek to establish a baseline of reasonable conduct in many ways. In

this regard, the fact that U.S. Bank later granted Finster the loan modification does

not create a genuine issue of material fact as to whether U.S. Bank violated

RESPA in responding to Finster’s notices of error.           Specifically, it is not

“significantly probative” evidence that U.S. Bank’s prior explanation was wrong or


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insufficient.    See Anderson, 477 U.S. at 249–50 (“If the evidence is merely

colorable, or is not significantly probative, summary judgment may be granted.”)

(citations omitted).

      In sum, we hold that the district court properly granted summary judgment

to U.S. Bank on Finster’s RESPA claim.

                                         IV.

      Finster also brought an FCCPA claim under Fla. Stat. § 559.72(9). That

section prohibits a person, in collecting consumer debts, from “[c]laim[ing],

attempt[ing], or threaten[ing] to enforce a debt when such person knows that the

debt is not legitimate, or assert[ing] the existence of some other legal right when

such person knows that the right does not exist.” Fla. Stat. § 559.72(9).

      The district court determined that U.S. Bank had no actual knowledge that it

lacked the authority to deny the loan modification and proceed with foreclosure.

Finster grounds U.S. Bank’s knowledge in Fannie Mae’s guidelines, but we reject

that argument for the same reasons we have stated above. Nor is there other

evidence in the record suggesting that U.S. Bank knew that it was bound by the

modification agreement despite the lack of proper execution. Accordingly, we

affirm the grant of summary judgment on Finster’s FCCPA claim.

      For all of these reasons, the district court properly granted summary

judgment against Finster on her RESPA and FCCPA claims. We AFFIRM.


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