On November 2, the U.S. Court of Appeals for the 2nd Circuit affirmed the dismissal of a borrower’s RESPA suit against her mortgage servicer and master servicer. The court held that attorney’s fees incurred to prepare a follow-up qualified written request (QWR) are not recoverable actual damages and that a claim for the postage to mail it was de minimis. According to the opinion, the plaintiff borrower sent a QWR to both servicers and received no acknowledgment or response. Her attorney then prepared a second QWR, which also went unanswered. Alleging that the servicers’ failures prevented her from correcting account errors, she sought more than $70,277.15 in allegedly improper interest and fees, $225 in legal fees for preparing the second QWR, and $3.20 in postage. The U.S. District Court for the Eastern District of New York denied all relief and dismissed the second amended complaint.

The panel unanimously concluded that the interest and fees arose from a loan modification after the borrower missed several monthly payments and “had nothing to do with servicing,” so they were not recoverable. The majority also held that the $225 fee was not “actual damages” under 12 U.S.C. § 2605(f)(1)(A). It reasoned that § 2605(f)(3) provides attorney’s fees “[i]n addition to” actual damages, and only in a “successful action,” and it relied on the canon that the specific provision governs the general one. The majority rejected the postage claim under the de minimis doctrine. Responding to the dissent, the majority saw no reason why RESPA’s $2,000 cap on additional damages meant Congress wanted federal courts burdened with a $3.20 postage claim.

The dissenting judge agreed that the modification charges and the costs of the first QWR were not recoverable. She would have vacated the dismissal and remanded so the borrower could pursue the $228.20 she spent preparing and sending the second QWR. In her view, paying an attorney to obtain a servicing response “is not paying an attorney to litigate,” the specific-over-general canon applies only within its scope, and “any actual damages” has no minimum amount.