            Case: 16-15119   Date Filed: 08/17/2017   Page: 1 of 11


                                                                      [PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                              No. 16-15119
                        ________________________

                    D.C. Docket No. 1:14-cv-01569-ODE

STEVEN BIVENS,

                                                           Plaintiff - Appellant,

                                   versus

BANK OF AMERICA, N.A.

                                                                      Defendants,

SELECT PORTFOLIO SERVICING, INC.,

                                                          Defendant - Appellee.

                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                       ________________________

                              (August 17, 2017)

Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges.

JILL PRYOR, Circuit Judge:
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      Out of the blue, Steven Bivens received a letter from Select Portfolio

Servicing, Inc. (“SPS”), a company with which he had had no prior dealings that

purported to be his home loan servicer. Skeptical, Bivens wrote SPS a letter

demanding proof of its authority to service his loan. He neglected, though, to mail

his letter to the address SPS had designated for receiving such correspondence.

When SPS failed to provide the proof that Bivens had requested, he sued SPS for

damages under the Real Estate Settlement Procedures Act, 12 U.S.C. 2601 et seq.

(“RESPA”). 12 U.S.C. § 2605(e). The district court concluded that because a

regulation then in effect required Bivens to send his letter to SPS’s designated

address to trigger its duty to respond, SPS was entitled to summary judgment.

After careful consideration and with the benefit of oral argument, we affirm.

                                I.    FACTS

      In 2006, Bivens borrowed money from Mortgage Lenders Network to

purchase a home. After a few years, he stopped paying the mortgage. On

December 4, 2012, SPS sent Bivens a letter announcing that Bank of America had

assigned it the servicing rights to his mortgage. The letter provided Bivens with

three separate addresses to use for correspondence—one for General

Correspondence, one for Disputes/Inquiries, and one for Payment Remittance. The

otherwise identical addresses had different post office box numbers. SPS’s letter

explained:

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       If you wish to send a written request about your account or dispute
       any of the information on this statement, please do not include it with
       your monthly payment. All written requests must be sent to the
       address listed below for Disputes/Inquiries, as this is our exclusive
       address for processing these matters. If you send your request or
       dispute to any other address, it may not be processed in accordance
       with our Customer Service Timelines.

December 4 Letter at 2 (Doc. 89-3 at 69.) 1

       Bivens, through his attorney, responded by sending a letter to SPS’s General

Correspondence address, not its Disputes/Inquiries address. In the letter, Bivens

stated, “It is my understanding that [SPS] . . . is now going to be the servicer of

[my] loan.” December 17, 2012 Letter at 1 (Doc. 90-6). He asserted that he “d[id]

not believe SPS ha[d] the standing to enforce this obligation” and asked SPS to

“fully identify the owner of the loan by name, address and phone number.” Id. at

3-4. He also requested from SPS “a certified copy of [his] promissory note in its

current condition showing all endorsements and/or any allonge that show that the

purported ‘owner’ of the loan maintains legal ‘holder in due course’ status as of

today’s date.” Id. at 4. Bivens designated his letter as a “qualified written request”

(“QWR”) under RESPA, 12 U.S.C. § 2605(e).

       SPS received Bivens’s letter at its General Correspondence address and

forwarded it to its Disputes/Inquiries department. It sent Bivens two letters in

response to his letter. SPS’s first letter identified the holder of Bivens’s note as

       1
          Unless otherwise specified, citations to “Doc. _” refer to numbered entries on the
district court docket.

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Wells Fargo Bank, N.A., as Trustee, in Trust for SASCO 2007-MLN1 Trust Fund.

Its second letter informed Bivens that he had mailed his letter to the wrong address,

and once again provided him with its Disputes/Inquiries address. SPS did not,

however, timely provide Bivens a certified copy of his note in its current condition,

as he had requested.

       Bivens sued SPS in the district court, alleging that he was entitled to actual

and statutory damages based on SPS’s failure to provide an appropriate response to

his letter, which he claimed qualified as a QWR under RESPA. 2 SPS moved for

summary judgment on the grounds that (1) Bivens’s letter was not a QWR because

he had not sought information regarding the servicing of his loan; (2) SPS’s

acknowledgment and response obligations under RESPA were not triggered

because Bivens failed to mail his letter to the correct address; and (3) Bivens could

not prove actual damages or recover statutory damages. The district court granted

SPS summary judgment, determining, among other things, that SPS had no duty to

respond because Bivens had mailed his QWR to the wrong address. Bivens timely

appealed.

                            II.     STANDARD OF REVIEW




       2
         Bivens also brought claims against two other entities, but the district court dismissed
these claims for failure to state a claim. On appeal, Bivens does not challenge the dismissal of
his claims against the other defendants.

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      A litigant is entitled to summary judgment if it shows there is no genuine

dispute as to any material fact and that it is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(a). We review summary judgment decisions de novo, drawing

all reasonable inferences and reviewing all evidence in the light most favorable to

the nonmoving party. Likes v. DHL Express (USA), Inc., 787 F.3d 1096, 1098

(11th Cir. 2015). “An agency’s interpretation of its own regulations is ‘controlling

unless plainly erroneous or inconsistent with the regulation.’” Sierra Club v.

Johnson, 436 F.3d 1269, 1274 (11th Cir. 2006) (quoting Auer v. Robbins, 519 U.S.

452, 461 (1997)).

                                 III.   ANALYSIS

      RESPA is a consumer protection statute that imposes a duty on servicers of

mortgage loans to acknowledge and respond to inquiries from borrowers. See

12 U.S.C. § 2605(e); Freeman v. Quicken Loans, 132 S. Ct. 2034, 2038 (2012).

When a borrower submits a QWR—written correspondence that includes the

borrower’s name and account and sufficient detail about the information sought—

the servicer must provide “a written response acknowledging receipt of the

correspondence” and take certain other responsive actions within specified time

periods. 12 U.S.C. § 2605(e)(1)(A), (e)(1)(B), (e)(2).

      RESPA originally authorized the Secretary of the Department of Housing

and Urban Development “to prescribe such rules and regulations” and “make such

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interpretations . . . as may be necessary to achieve [the statute’s] purposes.” 12

U.S.C. § 2617 (repealed 2011). Under this authority, the Secretary promulgated

Regulation X, 24 C.F.R. § 3500.21 (repealed 2014), RESPA’s primary

implementing regulation. See Lage v. Ocwen Loan Servicing LLC, 839 F.3d 1003,

1005 (11th Cir. 2016). Section 3500.21(e)(1), among other things, authorized

servicers to “establish a separate and exclusive office and address for the receipt

and handling of qualified written requests.” 24 C.F.R. § 3500.21(e)(1).3 The final

rulemaking notice from the Secretary explained that if a servicer established a

designated address for receiving QWRs, “then the borrower must deliver its

request to that office in order for the inquiry to be a ‘qualified written request.’”

Real Estate Settlement Procedures Act, Section 6, Transfer of Servicing of

Mortgage Loans (Regulation X), 59 Fed. Reg. 65,442, 65,446 (Dec. 19, 1994).

       The district court held that because Bivens had not mailed his QWR to the

appropriate address, SPS had no duty to respond to it. Bivens argues Regulation X

did not apply to his QWR because SPS (1) did not properly designate an exclusive

address for receipt of QWRs and (2) processed both QWRs and other types of

       3
         The Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”)
transferred the Secretary’s rulemaking authority to the newly-created Consumer Financial
Protection Bureau (“CFPB”). Pub. L. No. 111-203, § 1098, 124 Stat. 1376, 2104 (2010).
Consistent with this provision of Dodd-Frank, the Secretary rescinded the version of Regulation
X at issue in this case. Removal of Regulations Transferred to the Consumer Financial
Protection Bureau, 79 Fed. Reg. 34,224, 34,224-25 (June 16, 2014). CFPB then promulgated a
new version of Regulation X, which, like its predecessor, allows a servicer to direct borrowers to
mail QWRs to a designated address. 12 C.F.R. §§ 1024.35(c), 1024.36(b).

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correspondence at the same office. We conclude, however, that SPS properly

designated an exclusive address for receiving QWRs and that the regulation did not

require SPS to use that office solely for the purpose of processing QWRs. The

district court did not err, then, in granting summary judgment to SPS.

       The Secretary’s construction of § 3500.21(e)(1) was neither “plainly

erroneous [n]or inconsistent with the regulation.” Sierra Club, 436 F.3d at 1274

(internal quotation marks omitted). To the contrary, common sense suggests that if

a servicer may designate an address for receiving QWRs, it may require borrowers

to send QWRs to that address in order to receive a response. We thus accord

authoritative weight to the Secretary’s construction of § 3500.21(e)(1). If a

servicer designates a particular address for receiving QWRs, Regulation X requires

a borrower to mail a QWR to that address to trigger the servicer’s duty to respond. 4

       Bivens argues that he was not required to deliver his letter to the address for

Disputes/Inquiries for it to qualify as a QWR because SPS failed to establish a

designated address for receiving QWRs. He contends that SPS designated no such

       4
          The Second and Tenth Circuits have reached the same conclusion, albeit for a different
reason. See Roth v. CitiMortgage Inc., 756 F.3d 178, 181-82 (2d Cir. 2014) (“[F]ailure to send
the request to the designated address does not trigger the servicer’s duties under RESPA”
(alterations omitted)); Berneike v. CitiMortgage, Inc., 708 F.3d 1141, 1149 (10th Cir. 2013)
(“Receipt at the designated address is necessary to trigger RESPA duties.”). Roth and Berneike
each held that Regulation X permissibly construed RESPA. See Roth, 756 F.3d at 182; Berneike,
708 F.3d at 1148. Without disputing that conclusion, we decline to follow Roth and Berneike’s
analysis here because we believe that the relevant issue is not whether the Secretary permissibly
construed RESPA, but whether he permissibly construed Regulation X, which requires a
different analysis. Compare Auer, 519 U.S. at 461, and Sierra Club, 436 F.3d at 1274, with
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-44 (1984).

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address because it never (1) identified an address for QWRs specifically or (2)

established an office solely to process QWRs. We conclude that SPS properly

designated an address for receiving QWRs and that its use of that address for

additional purposes is of no moment.

      First, Bivens argues that SPS failed to designate an address for receiving

QWRs because it provided him with an address only for “written requests.” SPS’s

letter to Bivens said, “All written requests must be sent to the address listed below

for Disputes/Inquiries, as this is our exclusive address for processing these

matters.” December 4 Letter (Doc. 88-2 at 82). Bivens contends that § 3500.21

required SPS to use the term “qualified written requests”; designating an address

merely for written requests, he says, did not suffice. We disagree.

      By directing borrowers to send all written requests to the specified address,

SPS necessarily directed them to send “qualified” written requests to that address.

Its notice used more accessible language than Regulation X required: borrowers

likely would be more familiar with the lay terms “disputes,” “inquiries,” and

“written requests” than with the statutory term of art, “qualified written request.”

24 C.F.R. § 3500.21(e)(1). SPS subjected itself to the administrative burden of

evaluating and prioritizing a larger quantity of mail to identify QWRs, perhaps so

as to minimize consumer confusion. To penalize it for doing so would be perverse.

This is not to suggest that a servicer may designate an address for QWRs using

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terminology so general or vague that it would fail to put a lay borrower on notice

that the address was intended for QWRs. A servicer’s designation of an exclusive

address for QWRs must be clear to a reasonable borrower—to say otherwise would

frustrate RESPA’s consumer-protection purpose. See Renfroe v. Nationstar

Mortg., LLC, 822 F.3d 1241, 1244 (11th Cir. 2016) (“RESPA, as a remedial

consumer-protection statute, should be construed liberally in order to best serve

Congress’s intent.”). We have little difficulty, however, concluding that SPS’s

designation of an address for “written requests” satisfied that standard.

       Second, Bivens argues that SPS failed to “establish a separate and exclusive

office,” id., for processing QWRs because it processed both QWRs and other

correspondence at the same office. 5 We construe “[r]egulations with a common

sense regard for regulatory purposes and plain meaning.” United States v.

Fuentes-Coba, 738 F.2d 1191, 1195 (11th Cir. 1984) (internal quotation marks

omitted). Bivens’s construction of § 3500.21(e)(1) would frustrate, not serve, its

purpose. Section 3500.21(e)(1) was designed to help servicers timely respond to

QWRs by enabling them to more easily identify and prioritize correspondence that

purport to be QWRs. See Roth, 756 F.3d at 181 (“To aid servicers with th[e] task

of providing consumers with timely information, RESPA’s implementing

regulations allow (but do not require) servicers to establish a designated address
       5
         SPS does not dispute that it processed QWRs and other correspondences at the same
office using the same staff.

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for QWRs.”); 59 Fed. Reg. at 65,446 (“This rule does not require that a servicer

establish an office to handle borrowers’ complaints. It does, however, allow the

servicer to do so.”). Allowing a servicer to designate a specific mailing address for

QWR receipt at a common mail processing facility would enable its employees to

easily identify purported QWRs by the address they bear. In contrast, requiring a

servicer to maintain a separate office for the sole function of processing QWRs

would impose high costs on the servicer while providing little benefit. Bivens

notes that employees at a QWR-only processing facility could receive specialized

training for responding to QWRs, but a servicer could just as easily provide such

training to employees at a common mail processing facility. We thus reject

Bivens’s argument that to “establish a separate and exclusive office,” a servicer

must devote an office to the “separate and exclusive” purpose of QWR processing.

24 C.F.R. § 3500.21(e)(1).

      Section 3500.21(e)(1) is more sensibly construed to authorize a servicer to

designate a particular office—“separate” from any other office it may have—as its

“exclusive” office for receiving QWRs, without regard to any other function that

office serves. Id. Such a construction accords with § 3500.21(e)(1)’s text and

purpose. We conclude that SPS successfully invoked § 3500.21(e)(1) by directing

borrowers to mail QWRs to a particular office, even though it used that office for

other purposes as well.

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       Because Bivens failed to address his QWR to SPS’s designated address for

QWR receipt, SPS had no duty to respond to it. Thus, the district court did not err

in granting summary judgment to SPS. 6

                                   IV.    CONCLUSION

       We affirm the district court’s grant of summary judgment.

AFFIRMED.




       6
         Because we conclude that SPS had no duty to respond to Bivens’s letter, we need not
decide whether (1) the information that Bivens sought “relat[ed] to the servicing of [his] loan,”
as RESPA requires, 12 U.S.C. § 2605(e)(1)(A); (2) SPS’s failure to send Bivens the information
he had requested caused him to suffer damages, see Renfroe, 822 F.3d at 1246 (“[D]amages are
an essential element in pleading a RESPA claim.”); or (3) the district court erred by assuming
that SPS was Bivens’s servicer.
        Bivens also raises several arguments on appeal related to the district court’s discovery
orders. “[W]e will not overturn discovery rulings unless it is shown that the District Court’s
ruling resulted in substantial harm to the appellant’s case.” Iraola & CIA, S.A. v. Kimberly-Clark
Corp., 325 F.3d 1274, 1286 (11th Cir. 2003) (internal quotation marks omitted). Bivens makes
no meritorious argument that the district court’s orders disposing of his discovery motions
resulted in any prejudice to his case. Those orders are thus AFFIRMED.

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