         Case: 15-12188     Date Filed: 04/22/2016   Page: 1 of 11


                                                        [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-12188
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 6:14-cv-01485-GAP-GJK



ARELIS NUNEZ,

                                                            Plaintiff-Appellant,

                                  versus


J.P. MORGAN CHASE BANK, N.A.,
a Delaware Corporation,
MANUFACTURERS AND TRADERS TRUST COMPANY,
a New York Corporation,
d.b.a. M and T Bank,
BAYVIEW LOAN SERVICING LLC,
a Delaware Limited Liability Company,

                                                         Defendants-Appellees.

                       ________________________

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

                             (April 22, 2016)
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Before MARTIN, JORDAN, and JULIE CARNES, Circuit Judges.

PER CURIAM:

      Arelis Nunez appeals the district court’s grant of motions to dismiss her

amended complaint for failure to state a claim. She alleged that J.P. Morgan Chase

Bank, N.A. (“Chase”), Manufacturers and Traders Trust Company (“M and T”),

and Bayview Loan Servicing LLC (“Bayview”) violated the Real Estate Settlement

Procedures Act, 12 U.S.C. § 2601 et. seq. (RESPA), and that Chase committed

negligence per se, by mishandling her home mortgage after she temporarily fell

into delinquency. Nunez sent two RESPA “notices of error” to Chase and one to

Bayview alleging various mortgage account errors. First, she says Chase wrongly

allowed her home to be foreclosed on despite having signed a loan-modification

agreement with her. Second, she says Chase acted inconsistently with the loan-

modification agreement before transferring the mortgage to M and T, which she

also believes violated the agreement. The district court ignored Nunez’s second set

of allegations and did not construe the facts favorably to her. After careful

consideration, we reverse and remand.

                                          I.

      “We review de novo the district court’s grant of a motion to dismiss under

[Federal Rule of Civil Procedure] 12(b)(6) for failure to state a claim, accepting the

allegations in the complaint as true and construing them in the light most favorable


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to the plaintiff.” Ironworkers Local Union 68 v. AstraZeneca Pharm., LP, 634

F.3d 1352, 1359 (11th Cir. 2011) (quotation omitted). Even when assertions in a

complaint are arguably ambiguous, they should be construed in the light most

favorable to the plaintiff. Miccosukee Tribe of Indians of Fla. v. S. Everglades

Restoration Alliance, 304 F.3d 1076, 1083–84 (11th Cir. 2002). To survive a

motion to dismiss, a complaint need only contain sufficient facts, accepted as true,

to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007). It must “raise a right to relief

above the speculative level.” Id. at 555, 127 S. Ct. at 1965.

        RESPA—as implemented by Regulation X, 12 C.F.R. § 1024 (2015)—

allows borrowers to notify mortgage servicers of possible account errors. See 12

C.F.R. § 1024.35. Once properly notified, a servicer must respond in one of two

ways:

        (A) Correct[] the error or errors identified by the borrower and
        provid[e] 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) Conduct[] a reasonable investigation and provid[e] 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.


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Id. § 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.

       Nunez fell behind on her home mortgage—originally serviced by Chase—in

2010. Chase initiated foreclosure proceedings and received judgment in its favor

in October 2012. However, before the foreclosure sale took place, Nunez and

Chase entered into a loan-modification agreement in January 2013,1 which allowed

her to avoid foreclosure by making reduced monthly payments. Or so she thought.

       Despite the loan-modification agreement, Chase failed to timely notify the

state court that the foreclosure sale should be cancelled or continued. Chase had

originally requested that the state court postpone the foreclosure sale, which was

rescheduled for March 20, 2013. But Chase waited too late to request further

postponement—its foreclosure attorneys asked on the eve of the sale, despite a

requirement that such requests be heard at least ten days beforehand. 2 The

foreclosure sale proceeded and Nunez’s property was sold on March 20, 2013. She

claimed that she suffered eviction attempts as a result.

1
  Chase disputes when this agreement began, claiming it did not take full effect until May 2013
because the initial period was merely a “trial.” As the district court noted, this period was only a
“trial” insofar as final approval depended on Nunez making the reduced payments (which she
did)—Chase did not retain total discretion over whether to grant a permanent loan modification.
2
  The exact number of days before the sale that Chase sent the request is not clear, but it appears
to have been between one and five.
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      Notwithstanding the foreclosure sale, Nunez submitted all her “trial”

payments and was approved for a permanent loan modification in May 2013.

Around the same time, Chase sought to rescind the foreclosure sale. When this

failed, Chase cancelled the loan-modification agreement with Nunez and stopped

applying her payments to the loan (though it retained them in a “suspense

account”). In February 2014, Chase began again with the rescission process. The

next month, Nunez sent a RESPA notice of error letter to Chase, informing it of the

wrongful foreclosure on her home and requesting that it investigate and remedy the

error by “implement[ing] the terms of the loan modification agreement.”

      Chase promptly responded. Despite documenting this chain of events,

Chase maintained that “there has not been an error with [Nunez’s] loan.” It

averred that the loan-modification agreement had been “canceled,” but said that

“[i]f the [rescission] is approved, we can then review [Nunez’s] mortgage for a

modification.” The foreclosure sale was ultimately rescinded on May 15, 2014.

      In late May and early June of 2014, Chase reopened negotiations for a loan-

modification agreement with Nunez. Chase said it could renew the old loan-

modification agreement if Nunez paid $3,450.09 toward her account. Chase

acknowledges that she did so on July 3, 2014.

      Nevertheless, Nunez continued to receive letters from Chase titled

“Acceleration Warning (Notice of Intent to Foreclose).” Inconsistent with the


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loan-modification agreement, these letters claimed that Nunez was in default, listed

substantial (and conflicting) payments that were supposedly past due, and

threatened another foreclosure. Nunez claimed that the three such letters she

attached to her amended complaint were simply “examples [and] are not intended

to be exhaustive.”

         The renewed loan-modification agreement was completed in late August

2014. Significantly, Nunez did not concede that the loan-modification was ever

successfully implemented—quite the contrary. See infra pp. 9–10. Nunez filed

this lawsuit against Chase on September 10, 2014. She also sent a second RESPA

notice of error letter to Chase, documenting its “continued failure to honor [her]

loan modification agreement.” Once again, Chase responded by denying any error.

         On September 16, 2014, Nunez’s loan was transferred to M and T. 3 Chase

alleged that this transfer occurred “with the modified loan terms and monthly

payment in place.” On the other hand, Nunez alleged that the servicing errors

regarding the loan-modification agreement were “ongoing.” For support, she

attached to her amended complaint: (1) a September 30th letter from M and T

stating that “you are presently in default” and threatening another foreclosure, and

(2) an October 2nd letter from Bayview stating that “[y]our account may have been

referred to an attorney for legal action, and additional fees and charges may be


3
    Bayview allegedly partnered with M and T to service loans, including Nunez’s.
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accruing.” Nunez sent a third RESPA notice of error letter, this time to Bayview,

on October 8, 2014. She documented the past problems with her account and

requested that Bayview “confirm that the loan modification has been completely

boarded and that your company will not take further collection activity.” Neither

Bayview nor M and T ever responded.

      In her amended complaint, Nunez claimed that (1) Chase had violated

RESPA by failing to reasonably investigate and respond to her two notices of

error; (2) Chase had thereby committed negligence per se; and (3) Bayview and M

and T had violated RESPA by failing to respond to her third notice of error. The

defendants both moved to dismiss the complaint under Rule 12(b)(6) for failure to

state a claim, and Nunez responded. The district court granted both motions and

denied Nunez’s request for reconsideration. Nunez timely appealed.

                                         III.

      The district court erred by granting the defendants’ motions to dismiss. The

court did not properly construe the facts alleged by Nunez in accord with the

standard applied on a Rule 12(b)(6) motion. Specifically, the district court

construed Chase’s “[q]uizzical[]” responses to Nunez’s notices of error as evidence

of a reasonable investigation that “fix[ed] the problem,” all while relying on

unsupported inferences about Chase’s intentions and versions of the facts that

contradict the allegations in Nunez’s amended complaint.


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      In concluding that Chase’s responses complied with “the letter and spirit of

[RESPA],” the district court impermissibly drew inferences in Chase’s favor.

Despite acknowledging that Chase’s finding of no error was “odd conclusion” and

“stands in contrast to the history traced out in the loan,” the court took it upon itself

to offer a “fairer assessment” of Chase’s real intentions. The “[q]uizzical[]”

responses, the court speculated, were actually a ruse designed to “comply with

[RESPA’s] binary response options.” That is, Chase “chose” to repeatedly state

that no error had occurred—despite secretly “conclud[ing] that there was a

problem”—because RESPA “does not contemplate errors of the type that cannot

be fixed within the thirty day response deadline.” According to the district court,

Chase’s unreasonable assessments of the situation were just an adept workaround.

This analysis simply failed to give proper deference to what Nunez said in her

pleadings.

      Beyond that, the district court ignored another set of Nunez’s allegations and

again construed facts favorably to the defendants. Throughout this case, Nunez

has clearly alleged that Chase failed to properly implement and honor the loan-

modification agreement, and she has attached documents that support this claim.

See, e.g., Doc. 1 at 6 (“[A]s the documents attached hereto as Exhibit ‘D’ reflect,

Chase continues to fail to honor the loan modification agreement, and is once again

pursuing foreclosure and collection activity.”); Doc. 24 at 7 (“[A]s the documents


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attached hereto as Exhibit ‘D’ and ‘F’ reflect, Chase continued to fail to honor

the[] loan modification agreement, and continued to pursue foreclosure and

collection activity for the entire time that it serviced Plaintiff’s loan.”); Id. at 10

(“[Chase] fail[ed] to properly handle and implement [Plaintiff’s] approved loan

modification.”). In deciding Rule 12(b)(6) motions to dismiss, the district court

was required to accept these allegations as true and construe all facts in the light

most favorable to Nunez. Ironworkers Local Union 68, 634 F.3d at 1359. Instead,

the court ignored these allegations and concluded that Chase “[did] the best it

could,” “fix[ed] the problem,” and “put [Nunez] in her desired modified repayment

program.” These conclusions were not proper in deciding Rule 12(b)(6) motions.

       Viewed in the light most favorable to her, Nunez has alleged that her home

was wrongly foreclosed on despite a valid loan-modification agreement, simply

because Chase failed to timely request postponement of the foreclosure. Chase

later purported to cancel its loan-modification agreement with her because it could

not rescind the wrongful foreclosure. Even though it eventually did rescind the

foreclosure and accept payment from Nunez to renew the loan-modification

agreement, Chase continued to shower Nunez with letters claiming she was in

default and threatening another foreclosure. When she repeatedly notified Chase

that these errors had occurred, Chase flatly denied any error. Nunez’s

allegations—each supported by attachments—are not reflected in the district


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court’s conclusions. Her claim that Chase failed to conduct a reasonable

investigation into or correct its errors as required by RESPA rises above the level

of speculation. See Twombly, 550 U.S. at 555, 127 S. Ct. at 1965.

        Attempting to justify the improper standard applied by the district court, the

defendants argue that the court merely favored facts from Nunez’s attachments

over her “conclusory and unwarranted accusations.” However, the “facts” that the

defendants allude to are taken from Chase’s own letters. For example, in response

to Nunez’s claim that Chase failed to properly implement the loan-modification

agreement, the defendants point to: (1) Chase’s second letter denying any error,

and (2) Chase’s letter enclosing the renewed loan-modification agreement.4 These

documents do not contain “specific factual details” that “foreclose recovery as a

matter of law.” Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1206 (11th Cir. 2007)

(quotation omitted). They are legal documents, drafted by one of the movants,

which contain disputed accounts of the facts. Elevating claims in Chase’s own

letters over the plaintiff’s allegations in the amended complaint and in other

attachments would turn the standard for considering a Rule 12(b)(6) motion on its

head.



4
  To the extent the second letter is cited to show that the loan-modification agreement was
executed by Chase in August 2014, it is not even relevant. Nunez does not dispute this fact. She
contends that Chase did not properly implement or honor the loan-modification agreement, not
that it didn’t exist.
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      The district court’s dismissals of Nunez’s RESPA claim against Bayview

and M and T, as well as Nunez’s negligence per se claim against Chase, were

premised on the reasoning we rejected above. For the RESPA claim against

Bayview and M and T, the district court concluded that dismissal was proper

because Chase had already adequately responded to Nunez’s concerns. For the

negligence per se claim against Chase, the district court concluded that dismissal

was warranted because RESPA had not been violated. These conclusions cannot

stand at this stage of the proceedings. After careful consideration of the record

before us and the parties’ briefs, we REVERSE and REMAND.

      REVERSED and REMANDED




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