Bivens v. Select Portfolio Servicing, Inc. – 11th Circuit Confirms Right of Servicers to Designate in a Reasonable Manner a Distinct Address and Department to Respond to QWR’s
On August 17, 2017, the Eleventh Circuit issued an opinion in Steven Bivens v. Select Portfolio Servicing, Inc. (No. 16-15119), holding that a borrower must send requests for information to a mortgage servicer’s designated addressed before a servicer’s duty to respond under the Real Estate Settlement Procedures Act are triggered. Lenders should take note of this decision because it indicates that the Eleventh Circuit will require plaintiffs to strictly comply with the terms of that statute before holding banks or mortgage servicers liable under that statute.
In 2006, Steven Bivens took out a mortgage with Mortgage Lenders Network, but stopped making payments on the mortgage shortly afterwards. On December 4, 2012, Bivens received a letter from Select Portfolio Servicing, informing him that Select Portfolio had received servicing rights to his mortgage from Bank of America. That letter designated three separate addresses for any correspondence from Bivens – one for general correspondence, one for inquiries and disputes, and one for payments. The addresses were similar, except that they designated separate P.O. box numbers, and the letter indicated that the address for inquiries and disputes was the “exclusive” address for processing those requests.
Bivens wrote to Select Portfolio, indicating that he was skeptical of the validity of Select Portfolio’s rights to service his mortgage and asking for certain information, including a certified copy of the note underlying his mortgage. Rather than send the letter to Disputes/Inquiries, however, he sent it to the address for General Correspondence. Bivens’ requests for information were nonetheless forwarded to the Dispute/Inquiries department, which timely responded to Bivens’ requests, and also reminded Bivens that all inquiries should be sent to Select Portfolio’s designated inquiries and disputes address. The department failed to include a certified copy of the note, however, and Bivens then sued Select Portfolio under RESPA for providing an inadequate response. The district court granted summary judgment to Select Portfolio because Bivens had mailed his letter to the wrong address, and therefore Select Portfolio’s obligations under RESPA were never triggered. On appeal, the Eleventh Circuit affirmed.
In reaching that conclusion, the Eleventh Circuit reasoned that Regulation X allows a mortgage servicer to designate “a separate and exclusive office and address” for receiving qualified written requests. Further, the Court found, when a servicer has made such a designation, the borrower is bound to use that address in order to trigger RESPA’s duties. The Court held that Select Portfolio had properly designated such an address and office when it designated an address and a department for “written requests” and “inquiries and disputes,” and that Select Portfolio was not required to explicitly use the term “qualified written requests” to take advantage of RESPA’s protections, so long as the designation was clear to a reasonable borrower. The fact that the address and the department may have duties beyond simply responding to qualified written requests did not alter this conclusion so long as the designation of duties was clear. Because Bivens sent his request to the wrong address, Select Portfolio never had a duty to respond.
Practically, this ruling emphasizes the protections offered to mortgage servicers who properly designate a distinct address and department to respond to inquiries and disputes, including qualified written requests. It also emphasizes the importance of ensuring that all purported qualified written requests are received at the designated address, and noting when they are not. The Eleventh Circuit emphasized that a mortgage servicer’s designation of an exclusive address for handling qualified written requests is more functional than formal, and that so long as the designation is clear to a reasonable borrower and the delineation of department duties are clear, the mortgage servicer is entitled to the protections of RESPA. Formal designations may be preferable under many circumstances to avoid any costs of uncertainty, but the Eleventh Circuit’s functional approach should give mortgage servicers confidence in their designations when questions arise.