               Case: 13-11987   Date Filed: 12/16/2014   Page: 1 of 12


                                                             [DO NOT PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 13-11987
                             Non-Argument Calendar
                           ________________________

                    D.C. Docket No. 2:12-cv-00604-MHT-TFM

STEVEN THOMASON,

                                                  Plaintiff - Appellant,

versus

ONE WEST BANK,
FSB, INDY MAC BANK,

                                                  Defendant - Appellee.

                           ________________________

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

                                (December 16, 2014)

Before WILLIAM PRYOR, MARTIN and JORDAN, Circuit Judges.

PER CURIAM:

         The district court dismissed the pro se complaint of Steven Clayton

Thomason on the grounds that the complaint failed to sufficiently allege any
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claims for relief. Mr. Thomason appeals that ruling, as well as the district court's

denial of his request for leave to amend. While we find no error in the district

court’s ruling that Mr. Thomason’s initial complaint failed to state a claim for

relief, we conclude that Mr. Thomason should have been given leave to file an

amended complaint.

                                                     I

        On July 11, 2012, Mr. Thomason filed a pro se civil rights complaint against

OneWest Bank, FSB and IndyMac Mortgage Services, a division of OneWest. Mr.

Thomason asserted three claims. First, he alleged that OneWest violated the Home

Affordable Modification Program (“HAMP”) 1 because it refused to modify his

wife’s loan after she died and attempted to foreclose on his property. Second, Mr.

Thomason maintained that OneWest violated the Home Affordable Foreclosure

Alternatives Program (“HAFA”), because it refused to allow him to sell his

property through a short sale.               Third, Mr. Thomason claimed that OneWest

violated the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601,

et seq., because it failed to comply with his qualified written requests for

documents during two previous bankruptcies.                         He requested $88,000.00 in

monetary relief, as well as the right to sell his property.


        1
          The Making Home Affordable Program, a program that includes HAMP and HAFA, was created by
Department of the Treasury pursuant to the Emergency Economic Stabilization Act of 2008 (EESA), 12 U.S.C. §§
5201–5261. See Miller v. Chase Home Finance, LLC, 677 F.3d 1113, 1115-16 (11th Cir. 2012). See also U.S.
Dep’t of Treasury, Performance and Accountability Report: Fiscal Year 2010, 209-10 (Nov. 15, 2010).

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       OneWest moved to dismiss the complaint pursuant to Rule 12(b)(6), and

argued that Mr. Thomason’s complaint was vague and failed to plead any facts to

support a civil rights violation. OneWest noted that it was a private entity not

subject to suit under 42 U.S.C. § 1983, and further argued that there were no

private causes of action available for alleged HAMP or HAFA violations. Finally,

OneWest asserted that Mr. Thomason’s RESPA claim was subject to dismissal

because a bare averment of a RESPA violation was not sufficient to state a claim

for relief.

       The magistrate judge issued an initial report and recommendation (“R&R”)

that recommended dismissal of the complaint with prejudice pursuant to Rule

12(b) (6). The magistrate judge determined that, to the extent Mr. Thomason

attempted to raise a civil rights claim under § 1983, he could not do so because

OneWest was a private entity. In addition, Mr. Thomason could not raise claims

under HAMP or HAFA because neither program provides a private cause of

action. Finally, the magistrate judge concluded that Mr. Thomason failed to allege

sufficient facts to state a claim under RESPA.

       Mr. Thomason filed objections to the R&R, combined with a motion to

amend his complaint, in which he sought to add new defendants and claims. He

also filed a second motion to amend, reiterating his new claims. Mr. Thomason’s

motion to amend sought to add the following defendants: (1) Donald McKinley,


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counsel for the Federal Deposit Insurance Corporation; (2) EvaBank; (3) Mortgage

Electronic Registration System ("MERS"); and (4) Deutsche Bank. Mr. Thomason

alleged that he was a borrower on two loans, a $66,000 loan and a $12,375 loan.

He wanted to assert claims related to these loans under the Federal Debt Collection

Practices Act (“FDCPA”), 15 U.S.C. §1692, et seq.; the Truth in Lending Act

("TILA"), 15 U.S.C. § 1601, et seq.; the Fair Housing Act ("FHA"), 42 U.S.C. §

3605; and the Alabama Deceptive Trade Practices Acts, Alabama Code § 8-19-1,

et seq.

          With respect to these claims, Mr. Thomason first asserted that OneWest had

engaged in deceptive business practices and discrimination by telling him that he

was not a borrower on the loan, and therefore had no right to a loan modification

under HAMP or short sale under HAFA. Mr. Thomason also alleged that EvaBank

discriminated against him under FHA because he was Hispanic, and that it engaged

in predatory mortgage lending by approving a mortgage that was impossible to pay

off because of its hidden fees and high interest rate. He further alleged that

OneWest and Deutsche Bank violated the FDCPA by harassing him and lying

during bankruptcy proceedings, and averred that IndyMac called him throughout

the day and before bedtime.        Finally, Mr. Thomason asserted that One West

violated RESPA by failing to respond to the qualified written requests that he sent

on November 30, 2011, March 24, 2012, May 10, 2012, and June 4, 2012.


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      Mr. Thomason attached various documents to his first motion for leave to

amend showing that, in November of 2005, a mortgage was executed with

EvaBank on a property located at 901 Seibles Road, Montgomery, Alabama. Both

Mr. Thomason and his wife were identified in the mortgage document as

“borrowers,” and both signed the security instrument for the $66,000 loan. He also

attached incomplete documents related to a second mortgage to secure an

additional $12,375 loan secured by the property.               He was identified as a

“borrower” on this security instrument as well. Mr. Thomason included a note for

this additional loan, initialed and signed only by his wife.

      Mr. Thomason also attached several letters that he sent to IndyMac about the

loan and the foreclosure.      In the first letter, dated November 30, 2011, Mr.

Thomson stated that he was a borrower on the mortgage, explained that his wife

had died, and asked OneWest to place his name on the mortgage. In the second

letter, dated May 10, 2012, he asked why he was not listed on the loan despite

having signed the mortgage papers and contributing money to payments. In his

third and fourth letters, both dated June 4, 2012, Mr. Thomason informed IndyMac

that it was in violation of RESPA, provided additional details about the loan, and

requested a HAMP modification package. The letters all included the account

number for the loan.




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      In addition, Mr. Thomason attached a letter from IndyMac, dated May 10,

2012, addressed to his wife, which acknowledged receiving a request that was

potentially a qualified written request under RESPA, and stating that a further

response would be sent “when required under applicable laws.” At the bottom of

the letter, it noted that IndyMac was “a debt collector.”

      OneWest responded that Mr. Thomason had failed to properly seek leave to

amend his complaint, and was attempting to file an amended complaint that added

new parties and causes of action. OneWest argued that Mr. Thomason’s proposed

amended complaint did not present any new arguments or evidence in support of

his claims, and did not contain allegations sufficient to warrant reconsideration of

the R&R. The magistrate judge issued a supplemental R&R, recommending denial

of the motions to amend, because they did not include any amendments to Mr.

Thomason's causes of action as stated in his complaint. The magistrate judge thus

found the motions moot based upon the reasoning in the initial R&R, and

recommended dismissing Mr. Thomason’s complaint with prejudice.

      Mr. Thomason generally objected to the supplemental R&R on the basis that

he had not alleged § 1983 claims, but rather made claims under the FDCPA, TILA,

FHA, RESPA, and the Alabama Deceptive Trade Practices Act. He argued that his

amended complaint was sufficient to survive dismissal and was not moot. The

district court, reviewing the record de novo, summarily overruled Mr. Thomason’s


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objections and adopted the R&Rs, denying his motions for leave to amend and

granting OneWest’s motion to dismiss the complaint with prejudice. The district

court then entered a judgment dismissing the complaint with prejudice.

                                          II

      We review the grant of a motion to dismiss under Rule 12(b)(6) de novo,

accepting the facts alleged in the complaint as true, and construing them in the

light most favorable to the plaintiff. See Spain v. Brown & Williamson Tobacco

Corp., 363 F.3d 1183, 1187 (11th Cir.2004). Pro se pleadings are held to a less

demanding standard than counseled pleadings and should be liberally construed.

See Gilmore v. Hodges, 738 F.3d 266, 281 (11th Cir. 2013). Nonetheless, the

factual allegations in the complaint must be enough to raise a right to relief above

the speculative level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct.

1955, 1964–65, 167 L.Ed.2d 929 (2007).            Notably, “[a] copy of a written

instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”

F.T.C. v. AbbVie Products LLC, 713 F.3d 54, 63 (11th Cir. 2013) (citing Fed. R.

Civ. P. 10(c)). “At the motion-to-dismiss stage, we consider the facts derived from

a complaint's exhibits as part of the plaintiff's basic factual averments. We even

treat specific facts demonstrated by exhibits as overriding more generalized or

conclusory statements in the complaint itself.” Id. (internal citations omitted).




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      We review a district court’s denial of a motion to amend a complaint for

abuse of discretion. See Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001).

See also Fed. R. Civ. P. 15(a)(2) (setting forth that leave to amend “shall be freely

given” by district courts “when justice so requires”). “Generally, ‘where a more

carefully drafted complaint might state a claim, a plaintiff must be given at least

one chance to amend the complaint before the district court dismisses the action

with prejudice.’” Id. (quoting Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991)).

The district court need not allow an amendment, however, where: (1) there has

been undue delay, bad faith, dilatory motive, or repeated failure to cure

deficiencies by amendments previously allowed; (2) allowing amendment would

cause undue prejudice to the opposing party; or (3) amendment would be futile.

Corsello v. Lincare, Inc., 428 F.3d 1008, 1014 (11th Cir.2005).

                                         III

      We affirm the district court’s dismissal with prejudice of Mr. Thomason’s §

1983 claims for alleged violations of HAMP and HAFA for the reasons stated in

the magistrate judge’s initial R&R. We must, however, reverse the district court’s

denial of Mr. Thomason’s motions for leave to amend.            Our review of Mr.

Thomason’s motions for leave to amend and the proposed amended claim leads us

to conclude that Mr. Thomason has stated a claim for relief under RESPA.




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      RESPA is a consumer protection statute that regulates the real estate

settlement process and prescribes certain actions to be followed by entities or

persons responsible for servicing federally related mortgage loans, including how

to respond to borrower inquires. See Hardy v. Regions Mortg., Inc., 449 F.3d

1357, 1359 (11th Cir. 2006). See also 12 U.S.C. § 2605. Under §2605(e)(2), a

lender must respond to a qualified written request from a borrower within sixty

days of receipt. See Bates v. JPMorgan Chase Bank, NA, ___ F.3d ___, 2014 WL

4815564, at *6 (11th Cir. Sept. 30, 2014). A “qualified written request” is defined

as a “written correspondence . . . that (i) includes, or otherwise enables the servicer

to identify, the name and account of the borrower; and (ii) includes a statement of

the reasons for the belief of the borrower . . . that the account is in error or provides

sufficient detail to the servicer regarding other information sought by the

borrower.” § 2605(e)(1)(B).

      In responding, the servicer must, “after conducting an investigation, provide

the borrower with a written explanation or clarification that includes—(i) to the

extent applicable, a statement of the reasons for which the servicer believes the

account of the borrower is correct as determined by the servicer; and (ii) the name

and telephone number of an individual employed by, or the office or department

of, the servicer who can provide assistance to the borrower.” Bates, 2014 WL

4814464, at *6 (citing § 2605(e)(2)(B)). “Whoever fails to comply with any


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provision of [§ 2605] shall be liable to the borrower for each such failure in . . . an

amount equal to the sum of: (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, in an

amount not to exceed $2,000.” § 2605(f)(1)(A)-(B).

      Mr. Thomason’s initial complaint stated in a conclusory fashion that

OneWest failed to comply with RESPA’s requirements, without providing any

supporting facts. Thus, the initial complaint failed to state a claim upon which

relief could be granted with respect to that allegation, and the district court did not

err in dismissing it. But Mr. Thomason’s proposed amendments, when construed

liberally in light of his pro se status, however, sufficiently alleged a claim for relief

under RESPA that rose above a speculative level. See Twombly, 550 U.S. at 555.

      Mr. Thomason asserted in his proposed amended claim that OneWest

violated RESPA by failing to respond to the qualified written requests that he sent

on November 30, 2011, March 24, 2012, May 10, 2012, and June 4, 2012. He

alleged that these qualified written requests included his name, his deceased wife’s

name and his account number, and stated his concern that his account erroneously

failed to list him as a co-borrower on the loan with his deceased wife. Mr.

Thomason also alleged that his letters requested documents and further information

from IndyMac concerning his qualification for HAMP and HAFA relief. Finally,


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Mr. Thomason attached as exhibits to his proposed amended claim copies of the

qualified written requests at issue.

      Accepting Mr. Thomason’s allegations as true, as we must, Mr. Thomason

was entitled to written explanations in response to his qualified written requests.

The allegations in his proposed amended claim that IndyMac failed to respond

accordingly are sufficient to state a claim for relief under RESPA. See Sinaltrainal

v. Coca–Cola Co., 578 F.3d 1252, 1261 (11th Cir.2009) (“A complaint must state a

plausible claim for relief, and a claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.”).

                                          IV

      Based on the foregoing, we affirm the district court’s dismissal with

prejudice of Mr. Thomason’s §1983 claims for violations of HAMP and HAFA.

We conclude, however, that Mr. Thomason’s proposed amended RESPA claim

sufficiently stated a cause of action, and he should have been given leave to

amend.

      In closing, we note Mr. Thomason also sought to add additional claims,

including claims under the FDCPA, TILA, the FHA and the Alabama Deceptive

Trade Practices Acts, as well as additional defendants, including the FDIC, Eva




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Bank, MERS, and Deutsche Bank.          The district court did not address these

proposed new claims and defendants, but should do so on remand.

      We affirm the district court’s dismissal of Mr. Thomason’s initial complaint

and reverse the district court’s denial of Mr. Thomason’s motion to amend the

RESPA claim. We remand with instructions to the district court to allow Mr.

Thomason to amend his RESPA claim and to address the proposed new claims and

defendants.

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




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