United States District Court, D. Maryland, Northern Division
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Angela Ayres, Plaintiff: Phillip R Robinson, LEAD ATTORNEY,
Consumer Law Center LLC, Silver Spring, MD; Jesse Lee Iliff,
Silver Spring, MD.
Stephan Ayres, Plaintiff: Phillip R Robinson, LEAD ATTORNEY,
Consumer Law Center LLC, Silver Spring, MD.
Ocwen Loan Servicing, LLC, Defendant: Christopher M
Corchiarino, LEAD ATTORNEY, Goodell DeVries Leech and Dann
LLP, Baltimore, MD; George S Mahaffey, Jr, Goodell DeVries
Leech and Dann LLP, Baltimore, MD.
D. Quarles, Jr., United States District Judge.
Ayres and Stephan Ayres sued Ocwen Loan Servicing, LLC
(" Ocwen" ) and Salomon Brothers Mortgage
Securities VII (" Salomon Brothers" ). Pending are
Ocwen's motion to dismiss, Angela Ayres's motion for
summary judgment, and Salomon Brothers motion to quash
service of process and to dismiss. No hearing is necessary.
See Local Rule 105.6 (2014). For the following reasons,
Salomon Brothers' motion will be granted, Ocwen's
motion to dismiss will be granted in part and denied in part,
Mrs. Ayres motion will be denied, and Ocwen's motion for
limited discovery will be denied as moot.
March 18, 1991, the Plaintiffs bought a property at 6600
Halleck Street, District Heights, Maryland (" the
Property" ) with a loan of $72,660 from Market Street
Mortgage secured by a Deed of Trust (" the Ayres
Note" ). See ECF No. 61 (hereinafter, " Am.
Compl." ) at ¶ 20. The Plaintiffs allege that
" Mr. Ayres was and remains the only obligor/borrower on
the Ayres Note [and] Mrs. Ayres has never agreed to assume
any liability on the Ayres Note." Id. (emphasis
in original). " The Ayres Note set the interest rate at
9.5% . . . and had a maturity date in April 2021. The fixed
monthly principal and interest payment on the Ayres Note
equaled $610.96 and payments were due on the first day of the
month and would not be subject to a late fee if paid by a
grace period of 15 days of each month." Id. at
August 25, 1993, Mr. Ayres filed for bankruptcy under Chapter
13 of the Bankruptcy Code. Am. Compl. at 5 22. Under his
Chapter 13 reorganization plan, Mr. Ayres " made all
required payments with his then mortgage servicer related to
the Ayres Note--i.e. First Union Mortgage Corp. (" First
Union" )--and the Chapter 13 Trustee also paid to First
Union Mortgage Corp. the total of $4,731.91"
Id. at ¶ 24. In June 1996, Stephan Ayres
the bankruptcy plan, and the bankruptcy case was discharged.
Id. ¶ 23, 26.
Despite the fact that Mr. Ayres was current on the Ayres Note
following the successful completion of his Chapter 13
Bankruptcy and discharge, the mortgage servicer for the Ayres
Note, First Union, demanded sums not contractually due and
owing on the Ayres Note." Am. Compl. at ¶ 27. In
May 1998, First Union returned a mortgage payment stating
that the Plaintiffs owed $13,972. Id. " Mr.
Ayres attempted to get First Union to accept his continued
payments from May 1998 and thereafter but it refused to
accept the payments and continued to demand sums that were
not contractually due." Id. at ¶ 28.
[A] few months after failing to get First Union to correct
its false records," Mr. Ayres requested that the U.S.
Department of Housing and Urban Development (" HUD"
) " take over the Ayres Note and assign the Ayres Note
to another servicer." Am. Compl. at ¶ 29. "
[T]he Ayres Note was accepted into HUD's assignment
program on November 9, 1998 and soon thereafter assigned to a
new servicer Clayton National Inc. (" Clayton" )
who acted on behalf of HUD with respect to the loan."
December 2000, the loan was assigned from HUD to Salomon
Brothers Realty Corp. and transferred to Litton Loan
Servicing for servicing. Am. Compl. at ¶ 34, 36. "
Litton began shortly thereafter claiming that Mrs. Ayres was
a borrower on the Ayres Note when at no time did she agree to
be obligated on the Ayres Note." Id. at ¶
39. " Mr. Ayres had given Litton . . . permission to
discuss his mortgage account with Mrs. Ayres but that consent
was never an agreement for her to have become obligated on
the Ayres Note." Id. " On August 17, 2001,
Lela Derouen, Assistant Vice President of Litton . . .
affirmed before a Notary Public from the State of Texas named
Elizabeth H. Willard in a 'Lost Note Affidavit' that
'STEPHAN AYRES' was the only borrower on the Ayres
Note . . . . " Id. at ¶ 35.
As of September 13, 2002, Litton reported that Mr. & Mrs.
Ayres owed no delinquent sums of money on the Ayres Note.
Litton intended for Mr. & Mrs. Ayres to rely upon this
statement." Am. Compl. at ¶ 40. On May 15, 2003,
however, Litton claimed that the Plaintiffs owed " in
addition to the regular mortgage payment the sum of
$23,383.28 for 'OTHER FEES DUE.'" Id.
at ¶ 41. " Mrs. Ayres proceeded, on her
husband's behalf and with his authority, to communicate
with Litton over and over for several years, in writing and
orally, regarding the basis of Litton's claim in May 2003
. . . that $23,383.28 in additional 'OTHER FEES' was
owed on the Ayres Note." Id. at ¶ 42.
did not provide documentation explaining the " other
fees." Am. Compl. at ¶ 43. Instead, on November 26,
2001, Litton informed the Plaintiffs " an Arrearage Bond
of $23,280.02 was added to the loan" because of the
Plaintiff's previous participation in HUD's Fresh
Start Program. Id. " Litton never provided Mr.
& Mrs. Ayres with any audit or other information
supporting its claim that an 'Arrearage Bond' was
authorized, consented to, and added to the Ayres Note. Litton
only provided an incomprehensible and false accounting of the
Ayres Note from the time it commenced servicing the
loan." Id. at ¶ 44. The Plaintiffs
continued to request documentation. Id. at ¶
45. On September 7, 2007, Litton " modified" its
explanation of the Arrearage Bond, explaining that " the
sums it claimed were due were made in consideration of Mr. &
Mrs. Ayres for various loan modifications which simply worked
to capitalize the disputed sums claimed due and extend the
term of the Ayres Note beyond the initial 30 year
period." Id. at ¶ 46. " In addition,
Litton attempted to add Mrs. Ayres by these proposed offers
as an additional obligor on the Ayres Note when it knew she
was not a co-borrower." Id.
2009, the Plaintiffs defaulted on the loan. Am. Compl. at
¶ 47. " However, by approximately January 2010 the
payments were caught up and were current again."
Id. In April 2010 Litton reevaluated the Ayres Note;
however, " it utilized the H false financial records . .
. and as a result . . . the 'owner of the [Ayres Note]
did not approve a modification.'" Id. at
¶ 48. Further, on June 23, 2011, Litton claimed that the
Plaintiffs " had not timely returned certain financial
information to it as part of its consideration of various
loan modification applications." Id. at ¶
49. The Plaintiffs allege that they " had timely
returned all required documents and Litton kept asking for
the same documents over and over but Litton would only claim
it did not receive the requested documents."
November 2011, Litton transferred the servicing of the loan
to Ocwen. Am. Compl. ¶ 53. On December 6, 2011, Ocwen
sent the Plaintiffs a letter stating that " mortgage
payments are past due, which puts you in default on your loan
agreement." Id.  On numerous dates from
November 2011 to May 2012, " Ocwen sent statements to
Mr. & Mrs. Ayres which it intended them to rely upon and[,]
in which[,] [Ocwen] demanded false sums due on the Ayres Note
. . . and also falsely claimed that Mrs. Ayres owed it
certain sums . . . ." Id. at ¶ 55.
January 2012, the Plaintiffs filed a complaint with the
Maryland Division of Financial Regulations. Am. Compl. at
¶ 56. On March 15, 2012, the Plaintiffs sent Ocwen a
Qualified Written Request (" QWR" ). Id.
at ¶ 58. Other than sending a " basic
acknowledgment of receipt" to the Plaintiffs, Ocwen
provided " no substantive information" in response
to the QWR. Id.
April 6, 2012, Ocwen informed the Maryland Commissioner of
Financial Regulation that Mrs. Ayres was a borrower on the
Ayres Note, " admitted that it and Litton had demanded
false sums due related to the escrow for property
taxes," " represented that the payments made by the
Ayres were applied to the account in a sequence contrary to
the Ayres Note and associated Deed of Trust," and "
adopted the false accounting and prior false statements of
its predecessors." Am. Compl. at ¶ 59. Despite
these representations, on April 10, 2012, Ocwen sent the
plaintiffs a statement asserting that the Plaintiffs "
would need to pay a monthly escrow payment of $262.37 for
their annual taxes . . . ."
Id. at ¶ 60. The Plaintiffs' prior attorney
sent several letters identifying misapplied payments and
overcharges. ECF No. 1 ¶ ¶ 61, 65, 66,
68. Ocwen did not correct the account or
2012, Ocwen provided the following facts to the Maryland
Commissioner of Financial Regulation: Mrs. Ayres was a
borrower on the Ayres Note, Mrs. Ayres had filed for Chapter
13 Bankuptcy along with Mr. Ayres, the loan " may have
become current as of June 26, 1996," and " Ocwen
had assessed an incorrect sum due for the escrow account
related to the Ayres Note and demanded sums not validly due
for property taxes." Am. Compl. at ¶ ¶ 62-63.
On July 31, 2012, Ocwen sent the Plaintiffs a Notice of
Default. Id. at ¶ 64. On September 28, 2012,
" Ocwen attempted to induce Mr. & Mrs. Ayres to enter
into a loan modification of the Ayres Note which would have
obligated Mrs. Ayres on the Ayres Note and included the
disputed sums it had previously admitted to Mr. & Mrs. Ayres
that it could not directly prove were due." Id.
at ¶ 67. On October 3, 2014, the Plaintiffs discovered
that Ocwen " was falsely reporting a trade line to
Equifax related to Mrs. Ayres[,] claiming that she was a
borrower/debtor on the Ayres Note and that she was allegedly
past due . . . ."  Id. at ¶ 72.
6, 2013, the Plaintiffs pro se  sued the Defendants
for claims related to mortgage fraud. ECF No. 1. On August
27, 2014, the Court granted the Defendants' motion to
dismiss. ECF Nos. 55-56. However, " [b]ecause the
Plaintiffs are representing themselves, and they have
apparently asserted their claims in good faith," the
dismissal was without prejudice, and the Court granted the
Plaintiffs " an opportunity to amend their complaint
in accordance with this Memorandum Opinion."
ECF No. 55 at 24 (emphasis added). The Court warned the
Plaintiffs " that if they do not clearly and adequately
state their claims, they will be dismissed with
October 24, 2014, the Plaintiffs filed an amended complaint.
ECF No. 61. In addition to providing additional facts as
requested in the August 27, 2014 Opinion, the Amended
Complaint included claims that were not present in the
original complaint. On December 19, 2014, Ocwen
moved to dismiss the amended complaint. ECF No.
66. On January 20, 2015, Mrs. Ayres
moved for summary judgment on " whether [or] not Mrs.
Ayres ever agreed to be legally obligated to a mortgage note
executed by Plaintiff Stephan Ayres on or about January 17,
1991 . . . ."  ECF No. 70-1 at 1. On February 20,
2015, Salomon Brothers moved to quash service of process and
to dismiss. ECF No. 78. On March 26, 2015, Ocwen
moved for limited discovery on whether Mrs. Ayres was
obligated under the Note. ECF No. 85.
Salomon Brothers' Motion to Quash Service of Process and
Fed.R.Civ.P. 12(b)(5), a defendant may move to dismiss for
insufficient service of process. When service is contested,
" the plaintiff bears the burden of establishing the
validity of service" under Fed.R.Civ.P. 4.
O'Meara v. Waters, 464 F.Supp.2d 474, 476 (D.
Md. 2006). When service of process gives the defendant "
actual notice" of the action, Rule 4 may be liberally
construed. O'Meara, 464 F.Supp.2d at 476;
see also Karlsson v. Rabinowitz, 318 F.2d
666, 668 (4th Cir. 1963). But " the rules are there to
be followed, and plain requirements for the means of
effecting service of process may not be ignored."
Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733
F.2d 1087, 1089 (4th Cir. 1984).
The Motion to Quash
Brothers is a trust registered with the SEC. See ECF
No. 78-1 at 1. On November 6, 2014, counsel for the Trustee
emailed the Plaintiffs explaining that the Plaintiffs had
incorrectly sued the Trust rather than the Trustee. ECF
78-2 at 1. Trustee's counsel offered to consent to an
amended complaint if the Plaintiffs would sue the Trustee
rather than the Trust, and agreed to accept service on the
Trustee's behalf if an amended complaint was filed.
Id. Instead of amending the complaint, the
Plaintiffs attempted to serve the Trust through the Maryland
State Department of Assessments and Taxations. ECF No. 75.
Federal Rule of Civil Procedure 4(e)(1), an entity "
within a judicial district of the United States" may be
" served in a judicial district of the United States by
following state law for serving a summons in an action
brought in courts of general jurisdiction in the state where
the district court is located or where service is made . . .
." Here, the Plaintiffs attempted to serve Salomon
Brothers in accordance with Maryland Rule 2-124(o) which
Service may be made upon a corporation, limited partnership,
limited liability partnership, limited liability company, or
other entity required by statute of this State to have a
resident agent by serving two copies of the summons,
complaint, and all other papers filed with it, together with
the requisite fee, upon the State Department of Assessments
and Taxation if (i) the entity has no resident agent; (ii)
the resident agent is dead or is no longer at the address for
service of process maintained with the State Department of
Assessments and Taxation; or (iii) two good faith attempts on
separate days to serve the resident agent have failed.
Brothers asserts that service was insufficient because it is
not required to have a registered agent in Maryland. ECF No.
78-1 at 2-3. The Plaintiffs argue that Salomon Brothers
" has put forward no evidence that it does not need to
have a resident agent in Maryland." ECF No. 82 at 1.
However, it is the Plaintiffs' burden to establish that
service is proper, not Salomon Brothers. See
O'Meara, 464 F.Supp.2d at 476.
Maryland does not have a statute explaining when a trust must
have a registered agent, it does have statutes which
delineate when a corporation does business in Maryland,
thereby requiring a registered agent. Under Maryland Code,
Corporations and Associations, § 7-104, a corporation
does not " do intrastate, interstate, or foreign
business in [Maryland]" if it " foreclos[es]
mortgages and deeds of trust on property in this State; as a
result of default under a mortgage or deed of trust,
acquir[es] title to property in this State by foreclosure,
deed in lieu of foreclosure, or otherwise; hold[s],
protect[s], rent[s], maintain[s], and operat[es] property in
this State so acquired; and sell[s] or transfer[s] the title
to property in this State so acquired to any person . . . .
only " action" taken by Salomon Brothers in
Maryland according to the Amended Complaint was being the
owner of the Ayres Note. See ECF No. 82 at 1 (service was
proper because Salomon Brothers " is admittedly the
owner of the loan at issue in this case." ). If such
action was undertaken by a corporation, it would not
constitute " doing business" in Maryland under
§ 7-104. The Plaintiffs have offered no argument or
authority showing why a trust should be held to a different
standard. Because the trust was not doing business in
Maryland and was not required to have a registered agent
under Maryland law, service under Maryland Rule 2-124(o) was
although Salomon Brothers had actual notice, quashing service
and allowing the Plaintiffs to re-serve the Trust would be
inappropriate in this case because the Trust is not a valid
Under Federal Rule of Civil Procedure 17(b) (3), "
whether a trust has the capacity to be sued in this Court is
determined by the law of the state of Maryland."
Bowman v. Finance Am., LLC, No. AW-13-208, 2013 WL
4495824, at *3 (D. Md. Aug. 19 2013). Under Maryland law,
" a trust as an entity does not have the capacity to be
sued and that . . . capacity exists only in its
trustees." White v. Lundeberg Md. Seamanship Sch.,
Inc., 57 F.R.D. 128, 130 (D. Md. 1972); see
also Allegis Group, Inc. Contrs.Health Plan Trust v.
Conn. Gen. Life Ins. Co., No. JFM-04-16, 2004 WL
1289862, at *2-4 (D. Md. June 10, 2004); Limouze v. M.M.
& P. Mar. Advancement, Training, Educ. Program, 397
F.Supp. 784, 789 (D. Md.1975). The Court " discerns no
reason to depart from the well-settled Maryland rule in the
circumstances of this case."  Bowman, 2013
WL 4495824, at *3. Accordingly, Salomon Brothers' motion
will be granted.
Ocwen's Motions to Dismiss
Fed.R.Civ.P. 12(b)(6), an action may be dismissed for failure
to state a claim upon which relief can be granted. Rule
12(b)(6) tests the legal sufficiency of a complaint, but does
not " resolve contests surrounding the facts, the merits
of a claim, or the applicability of defenses."
Presley v. City of Charlottesville, 464 F.3d 480,
483 (4th Cir. 2006).
Court bears in mind that Rule 8(a)(2) requires only a "
short and plain statement of the claim showing that the
pleader is entitled to relief." Migdal v. Rowe
Price-Fleming Int'l Inc., 248 F.3d 321, 325-26 (4th
Cir. 2001). Although Rule 8's notice-pleading
requirements are " not onerous," the plaintiff must
allege facts that support each element of the claim advanced.
Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761,
764-65 (4th Cir. 2003). These facts must be sufficient to
" state a claim to relief that is plausible on its
face." Bell A. Corp. v. Twombly, 550 U.S. 544,
570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
requires that the plaintiff do more than " plead facts
that are 'merely consistent with a defendant's
liability'" ; the facts pled must " allow the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d
868 (2009) ( quoting Twombly, 550 U.S. at
557). The complaint must not only allege but also "
show" that the plaintiff is entitled to relief.
Id. at 679 (internal quotation marks omitted).
" Whe[n] the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the
complaint has alleged--but it has not shown--that the pleader
is entitled to relief." Id. (internal quotation
marks and alteration omitted).
plaintiff alleges a claim sounding in fraud, Rule 9(b)
requires that " the circumstances constituting fraud be
stated with particularity." The rule " does not
require the elucidation of every detail of the alleged fraud,
but does require more than a bare assertion that such a cause
of action exists." Kerby v. Mortg. Funding
Corp., 992 F.Supp. 787, 799 (D. Md. 1998). To satisfy
the rule, a plaintiff must " identify with some
precision the date, place, and time of active
misrepresentations or the
circumstances of active concealments, specifying which
Defendant . . . is supposedly responsible for those
statements or omissions." Johnson v. Wheeler,
492 F.Supp.2d 492, 509 (D. Md. 2007). The Court " should
hesitate to dismiss a complaint under Rule 9(b) if [it] is
satisfied (1) that the defendant has been made aware of the
particular circumstances for which [it] will have to prepare
a defense at trial, and (2) that [the] plaintiff has
substantial prediscovery evidence of those facts."
Harrison v. Westinghouse Savannah River Co., 176
F.3d 776, 784 (4th Cir. 1999).
assert that the Plaintiffs should be judicially estopped from
arguing that Mrs. Ayres was not obligated under the Ayres
Note because of the Plaintiffs' representations in the
original complaint. See ECF No. 77 at 7. The
Plaintiffs assert that when they were pro se, they
assumed that Ocwen's alleged representations that Mrs.
Ayres was obligated under the Note were true; after obtaining
counsel, this belief changed. See ECF No. 69 at 13.
Judicial estoppel is a principle developed to prevent a party
from taking a position in a judicial proceeding that is
inconsistent with a stance previously taken in court."
Zinkand v. Brown, 478 F.3d 634, 639 (4th Cir. 2000).
Judicial estoppel has three elements. " First, the party
sought to be estopped must be seeking to adopt a position
that is inconsistent with a stance taken in prior
litigation."  Lowery v. Stovall, 92 F.3d
219, 224 (4th Cir. 1996). " Second, the prior
inconsistent position must have been accepted by the
court." Id. Finally, the party must have acted
in bad faith, " intentionally misled[ing] the court to
gain unfair advantage." Tenneco Chems., Inc. v.
William T. Burnett & Co., 691 F.2d 658, 665 (4th Cir.
1982). " Without bad faith, there can be no judicial
estoppel." Zinkand, 478 F.3d at 639. Judicial
estoppel is an equitable doctrine within the Court's
original complaint, the Plaintiffs' alleged that Mrs.
Ayres was a borrower under the Ayres Note with her husband.
See, e.g., ECF No. 1 at ¶ 18. In contrast, the
amended complaint alleges that Mrs. Ayres was never a
borrower under the Note; in fact, this new fact is the basis
for the Plaintiffs' defamation claim. See, e.g.,
Am. Compl. at ¶ ¶ 132-34. Further, the Court
accepted the allegations in the original complaint as true
and relied on the Plaintiffs' assertions in ruling on the
previous motion to dismiss. See ECF No. 55 at 3-4.
Therefore, the first two elements of judicial estoppel have
faith would exist in this case, if the Plaintiffs knew or
believed that Mrs. Ayres was not obligated under the Note at
the time they filed the original complaint, and changed their
position in filing the amended complaint in order to state
claims that the Court had previously dismissed or establish
new claims. Based solely on the facts alleged in
the amended complaint, the Court cannot determine when the
Plaintiffs came to believe that Mrs. Ayres was not obligated
under the note. Therefore, the Court cannot now conclude that
the Plaintiffs acted in bad faith. Accordingly, the Court
will not judicially estop
the Plaintiffs from asserting that Mrs. Ayres was not bound
under the Ayres Note.
New Claims in the Amended Complaint
dismissing the original complaint, the Court granted leave to
amend " in accordance with [the] Memorandum
Opinion." ECF No. 55 at 24. The Court also gave the
Plaintiffs permission to add a claim for injunctive
relief. When the Plaintiffs amended their
complaint, however, they added three additional
claims--defamation, tortious interference with economic
relationship, and violation of RESPA- -without seeking leave
of the Court or the Defendants' consent. Ocwen
asserts that these claims should be dismissed because they
" violate the Court's Order." ECF No. 66 at
the Court intended to grant only limited leave to
amend, the language in the Memorandum Opinion was somewhat
unclear. See ECF No. 55 at 25 (" As the claims
in the complaint will be dismissed without prejudice, the
Plaintiffs may amend their complaint to include a claim for
injunctive relief." ). Further the Court's Order
merely stated that the claims in the original complaint were
dismissed without prejudice and did not address the leave to
amend. See ECF No. 56. Leave to amend should be
freely given when justice requires. Fed.R.Civ.P. 15(a)(2).
Accordingly, the Court will grant the Plaintiffs leave to
amend nunc pro tunc as long as the three new claims
do not " unduly prejudice the opposing party, amount to
futility, or reward the movant's bad faith,"
Steinburg v. Chesterfield Cnty. Planning Comm'n,
527 F.3d 377, 390 (4th Cir. 2008); Equal Rights Ctr. v.
Niles Bolton Associates, 602 F.3d 597, 603 (4th Cir.
Violation of the Real Estate Settlement Procedures
Plaintiffs allege that Ocwen violated the Real Estate
Settlement Procedures Act (" RESPA" ) by
failing to respond to the Qualified Written Requests ("
QWRs" ) that the Plaintiffs sent to Ocwen identifying
errors on their account. Am. Compl. at 35-36. Ocwen argues
that the RESPA claim is futile because the Plaintiffs did not
send correspondence that qualified as QWRs under the statute,
and, thus, Ocwen had no obligation to respond. ECF No. 66 at
was enacted " to insure that consumers . . . are
provided with greater and more timely information on the
nature and costs of the settlement process and are protected
from unnecessarily high settlement charges caused by certain
abusive practices " 12 U.S.C. § 2601. Therefore,
RESPA requires a mortgage servicer to acknowledge receipt of
a borrower's QWR within 5 days and respond within 30
days. See 12 U.S.C. § 2605(e)(1)-(2) (2011).
Specifically, within 30 days after receipt of a QWR, a
servicer must conduct an investigation and " provide the
borrower with a written explanation or clarification"
that includes either: (1) " a statement of the reasons
for which the servicer believes the account of the borrower
is correct as determined by the servicer[,] and the name and
telephone number of an individual employed by, or the office
or department of, the servicer who can provide assistance to
the borrower; " or (2) " information requested by
the borrower or an
explanation of why the information requested is unavailable
or cannot be obtained by the servicer[,] and the name and
telephone number of an individual employed by, or the office
or department of, the servicer who can provide assistance to
the borrower." Id. § 2605(e)(2). If a
servicer fails to comply, the borrower is entitled to recover
actual damages, as well as statutory ...