3.3.9.

5 No Litigation Exemption
Published on NCLC Digital Library (https://library.nclc.org)
Date downloaded: March 8, 2019 10:50 am

A servicer is not relieved of its obligations under section 2605(e)(2) simply because a borrower inquiry is made while litigation
is pending between the parties. Nothing in the Act or Regulation X precludes a qualified written request, notice of error, or
request for information from being sent during litigation or while a borrower’s bankruptcy is pending, even if the information
sought might be obtained under applicable discovery rules.441

However, some courts have held that a servicer does not violate RESPA if it fails to respond to a letter fashioned in the style of
a court discovery request, whether or not litigation is pending, if the letter seeks voluminous information that would be overly
burdensome for the servicer to comply with.442 Amendments to Regulation X made in 2013 are consistent with this position by
permitting a servicer to reject notices of error or requests for information it determines are overbroad or burdensome, though
not simply because litigation is pending.443

Footnotes
441 {441} Moore v. Caliber Home Loans, Inc., 2015 WL 5162482, at *7 (S.D. Ohio Sept. 3, 2015) (“Nothing in these
statutory provisions excuses a loan servicer from fulfilling its obligations thereunder, including the availability of
discovery in litigation or a prior response to a CFPB complaint.”); Lucero v. Cenlar, 2015 WL 5024047 (W.D. Wash.
Aug. 25, 2015) (borrowers are not precluded from utilizing §§ 1024.35 and 1024.36 after litigation has been initiated);
Chatman v. Fairbanks Capital Corp., 2002 WL 1338492 (N.D. Ill. June 13, 2002) (rejecting servicer’s argument that
plaintiff’s qualified written request was “litigation strategy” and that information requested was subject to Federal
Rules of Civil Procedure); In re Figard, 382 B.R. 695 (Bankr. W.D. Pa. 2008) (servicer compliance with qualified
written request required, even though borrower could obtain information under discovery provisions of Bankruptcy
Rules). See § 3.11.3 [1], infra (discussion of RESPA compliance when borrower is in bankruptcy proceeding).

442 {442} See, e.g., Reyes v. Bank of Am., 2012 WL 6089480 (D. Nev. Dec. 5, 2012); Moon v. Countrywide Home Loans,
Inc., 2010 WL 522753 (D. Nev. Feb. 9, 2010) (letter contained over one hundred requests for information).

443 {443} See §§ 3.3.3.4 [2], 3.3.4.4 [3], supra. See also Lucero v. Cenlar, 2015 WL 5024047 (W.D. Wash. Aug. 25, 2015)
(CFPB interpretations relating to overbroad requests do not preclude borrowers from utilizing §§ 1024.35 and 1024.36
simply because litigation has been initiated); Section-by-Section Analysis, § 1024.36(f)(1)(iv), 78 Fed. Reg. 10,696,
10,761 (Feb. 14, 2013) (“the Bureau does not believe that the information request procedures should replace or
supplant civil litigation document requests and should not be used as a forum for pre-litigation discovery”).

Source: National Consumer Law Center, Mortgage Servicing and Loan Modifications [1st ed.], updated at
www.nclc.org/library
Source URL: https://library.nclc.org/ms/03030905-0

Links
[1] https://library.nclc.org/nclc/link/MS.03.11.03
[2] https://library.nclc.org/nclc/link/MS.03.03.03.04
[3] https://library.nclc.org/nclc/link/MS.03.03.04.04

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