Attaching QWRs Saves a RESPA Claim from Summary Judgment; Borrower Default Bars Contract Claims and Supports Foreclosure — Eleventh Circuit’s Partial Remand in Embry v. Carrington

Attaching QWRs Saves a RESPA Claim from Summary Judgment; Borrower Default Bars Contract Claims and Supports Foreclosure — Eleventh Circuit’s Partial Remand in Embry v. Carrington

Note: This is an unpublished Eleventh Circuit decision and is not binding precedent, though it may be persuasive. It nonetheless offers important guidance on summary judgment burdens in mortgage servicing litigation and on how RESPA “qualified written requests” (QWRs) must be considered when attached to the pleadings.

Introduction

This appeal arises from an effort by homeowner Donna R. Embry to halt the foreclosure of her Alabama property. After she defaulted on her mortgage loan, Embry sued Carrington Mortgage Services, LLC (the loan servicer) and Wilmington Savings Fund Society FSB (the loan owner), alleging a broad set of claims: breach of contract, unjust enrichment, defamation (slander/libel), and violations of the Truth in Lending Act (TILA), Real Estate Settlement Procedures Act (RESPA), Fair Debt Collection Practices Act (FDCPA), and Fair Credit Reporting Act (FCRA), plus requests for declaratory and injunctive relief. The district court struck portions of Embry’s affidavit as inconsistent with her deposition, granted summary judgment to Defendants on all of her claims, and granted Wilmington’s counterclaims for declaratory judgment, breach of contract, and judicial foreclosure.

On appeal, Embry chiefly argued the district court improperly shifted the summary judgment burden to her. The Eleventh Circuit affirmed in large part, but vacated and remanded solely on the RESPA claim after finding the district court overlooked QWRs that were attached to Embry’s amended complaint. The court otherwise affirmed that Embry’s default barred her contract claims, that Defendants lawfully pursued foreclosure as the holder of a note indorsed in blank, and that the statutory and tort claims failed for want of evidence or as a matter of law.

Summary of the Opinion

The Eleventh Circuit affirmed the district court’s judgment in all respects except one. It held:

  • No improper burden shifting occurred. The district court appropriately required Embry, as the non-movant, to come forward with evidence once Defendants showed an absence of proof on essential elements.
  • RESPA claim: The district court erred in granting summary judgment to Defendants on the ground that Embry failed to provide the contents of her QWRs. Embry had attached the purported QWRs as exhibits to her amended complaint. That error required vacatur and remand for the district court to evaluate the RESPA claim on the merits.
  • Contract claims: Embry materially breached the mortgage by not making required payments, which bars her from pursuing breach-of-contract claims under Alabama law. Her separate contract claim against Carrington fails because Carrington was not a party to the note or mortgage and acted as Wilmington’s servicer-agent.
  • Paragraph 22 notice challenge: The record contained notices of default/acceleration and intent to foreclose (2018 by Chase; 2021 by Wilmington). Embry did not argue any specific deficiency in those notices in her opening brief, so any such contention was abandoned.
  • Unjust enrichment: Barred by the existence of the mortgage contract and unsupported by evidence.
  • Defamation (slander/libel): Embry identified no actionable false statement published by Defendants.
  • TILA: Not available against a servicer like Carrington when it is not also the creditor.
  • FCRA: Failed for lack of admissible evidence and as time-barred.
  • FDCPA § 1692f(6): Failed because undisputed evidence showed Wilmington’s present right to foreclose as holder of a note indorsed in blank and Embry’s default.
  • Judicial foreclosure: Affirmed based on Embry’s default and Wilmington’s right to enforce.

Disposition: Affirmed in part; vacated and remanded in part (RESPA only).

Analysis

Precedents Cited and Their Role

  • Celotex Corp. v. Catrett, 477 U.S. 317 (1986): Establishes that a movant may obtain summary judgment by showing the absence of evidence on an essential element for which the nonmovant bears the burden. The panel applied Celotex to hold that, once Defendants pointed out evidentiary gaps in Embry’s defamation, FCRA, and FDCPA theories, Embry had to come forward with admissible proof—not mere allegations.
  • Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986): Reinforces that only disputes of material fact that could affect the outcome under governing law preclude summary judgment; courts ask whether a reasonable jury could return a verdict for the nonmovant.
  • Poer v. Jefferson County Commission, 100 F.4th 1325 (11th Cir. 2024): Summarizes the Eleventh Circuit’s burden-shifting framework for summary judgment and emphasizes viewing the evidence and reasonable inferences in the nonmovant’s favor, while rejecting speculation as a basis to avoid summary judgment. The panel relied on Poer to reject the “improper burden shift” argument.
  • Trustees of Central Pension Fund of International Union of Operating Engineers & Participating Employees v. Wolf Crane Service, Inc., 374 F.3d 1035 (11th Cir. 2004): A district court cannot grant summary judgment merely for lack of response; it must determine whether the movant is entitled to judgment “if appropriate.” The panel cited this to underscore that, even where Embry did not respond to some points, the court still examined the record.
  • Sapuppo v. Allstate Floridian Insurance Co., 739 F.3d 678 (11th Cir. 2014): Arguments not raised in the opening brief are abandoned. Applied here to several issues, including any challenge to the striking of affidavit portions; unjust enrichment/TILA legal grounds; the contract claim against Carrington; and the adequacy (as opposed to existence) of paragraph 22 notices.
  • United States v. Levy, 379 F.3d 1241 (11th Cir. 2004): New arguments raised for the first time in a reply brief are not entertained.
  • Ruckh v. Salus Rehab., LLC, 963 F.3d 1089 (11th Cir. 2020): Arguments not fairly raised in the district court are waived.
  • Jackson v. Wells Fargo Bank, N.A., 90 So. 3d 168 (Ala. 2012): Alabama law on paragraph 22’s notice requirements prior to acceleration/foreclosure. Embry invoked Jackson, but the record showed notices existed; she abandoned any argument about their deficiency.
  • Alabama UCC/foreclosure principles (no specific case cited in the excerpt): A party in possession of a note indorsed in blank is a “holder” and may enforce the instrument, including foreclosing on the mortgage securing it.

Legal Reasoning

1) Summary judgment burdens and “improper burden shifting.” The court began by reiterating the Celotex/Anderson/Poer framework: a defendant who does not bear the trial burden can either negate an element or show the absence of evidence; if it does, the burden shifts to the plaintiff to designate specific facts showing a genuine issue for trial. Applying that framework, the panel held there was no improper shifting where Defendants pointed out specific evidentiary deficiencies (defamation, FCRA, FDCPA) and Embry responded with only conclusory assertions or no admissible evidence.

2) RESPA claim error. As to RESPA, Defendants argued Embry did not allege or provide the QWR contents. The district court agreed and granted summary judgment. The panel found that incorrect because Embry had attached the purported QWRs as exhibits to her amended complaint. Because the district court’s ruling rested on a mistaken premise (no QWR content), the Eleventh Circuit vacated and remanded the RESPA claim for consideration on the merits.

3) Contract claims barred by borrower default; “Paragraph 22” notice arguments abandoned. Under Alabama law, a party in material breach (here, non-payment) cannot maintain a breach-of-contract claim. The record— including Embry’s deposition—showed she had not made required payments, last paying in or around March 2019 via the Chapter 13 trustee and not paying after August 2019. That default was “overwhelming” and dispositive of her contract claim under paragraph 2 (payment application). Her separate claim that Wilmington failed to comply with paragraph 22’s pre-acceleration notice was foreclosed by the record (2018 and 2021 notices were attached to Defendants’ summary judgment materials) and by abandonment because Embry did not argue any specific deficiency in her opening brief.

4) Servicer not liable in contract or under TILA as a “creditor.” Embry’s contract claim against Carrington failed because Carrington was not a party to the note or mortgage; it acted as Wilmington’s servicer. Her TILA claim failed because, absent circumstances not present here, servicers are not “creditors” under TILA and thus are not liable for creditor duties.

5) Defamation and FCRA fail for lack of admissible evidence. For defamation, Embry did not identify any particular false statement made by Defendants. For FCRA, she did not put forth competent evidence that Carrington furnished inaccurate information or failed to meet a post-notice investigation duty, and the claim was also time-barred. Mere allegations that she contacted Carrington and the credit bureaus were insufficient under Celotex.

6) FDCPA § 1692f(6) fails because Wilmington had a present right to foreclose and Embry was in default. Section 1692f(6) targets nonjudicial action to dispossess where there is no present right to possession or the property is exempt. Defendants showed (and Embry did not rebut with evidence) that Wilmington held the note indorsed in blank, that the loan was in default, and that Carrington acted lawfully as servicer. Summary judgment was therefore proper.

7) Judicial foreclosure properly granted. With default established and Wilmington’s right to enforce proven, the district court’s judgment of foreclosure was affirmed. Any other foreclosure arguments not made below were waived.

Impact and Practical Implications

  • Respa/QWR practice: Litigants and courts must consider QWRs attached to pleadings at summary judgment. A court cannot grant summary judgment on a “no QWR content” rationale if the QWRs are in the record. On remand, plaintiffs must still prove a statutory violation and damages causally linked to the servicer’s failure to comply, but this decision ensures the court must engage the substance if the QWRs are properly before it.
  • Summary judgment rigor: The opinion reinforces that once a movant shows an evidentiary gap, the nonmovant cannot survive by restating allegations. Borrowers opposing foreclosure-related summary judgment must marshal admissible evidence—documents, deposition testimony, records—rather than conclusory affidavits, especially where a court has struck contradictory portions under the sham-affidavit doctrine.
  • Contract claims in default: In Alabama, borrowers who materially breach by non-payment cannot press breach-of-contract claims regarding payment application or account errors unless they can first overcome the material breach bar. This elevates the importance of establishing payments or excusing nonperformance.
  • Paragraph 22 notice litigation: The opinion underscores two perennial appellate pitfalls: (a) the record rules—if notices are attached and unrefuted, “no notice” claims will fail; and (b) specificity and preservation are essential—generic assertions of “no notice” are insufficient, and arguments about deficiencies must be raised in the opening brief or are abandoned.
  • Servicer exposure limits under TILA: The decision reiterates a well-settled boundary—servicers are generally not liable as “creditors” under TILA. Plaintiffs should carefully identify the proper defendant for TILA duties.
  • FCRA proof requirements: To survive summary judgment on a furnisher-liability theory under § 1681s‑2(b), plaintiffs need evidence of (i) inaccurate reporting, (ii) notice from a credit reporting agency to the furnisher, and (iii) an unreasonable failure to investigate or correct. Mere contact with a furnisher or CRA is not enough; and timeliness matters.
  • FDCPA and foreclosure: Section 1692f(6) claims will not succeed where the record shows a default and a holder’s present right to foreclose (e.g., possession of a note indorsed in blank). Plaintiffs must present evidence that one of the statutory predicates is missing (no present right, no present intention to take possession, or legal exemption).
  • Abandonment and waiver: The opinion is a cautionary tale about preserving issues. Failure to address arguments in district court or to brief them in the opening appellate brief will forfeit them; raising them for the first time in a reply is too late.

Complex Concepts Simplified

  • Summary judgment burdens:
    • Movant’s initial burden: Show there’s no genuine dispute of material fact by negating an element or showing a lack of evidence on an element the nonmovant must prove.
    • Nonmovant’s response: Go beyond the pleadings and identify specific, admissible evidence creating a triable issue. Speculation and conclusory assertions do not suffice.
  • RESPA “QWR” basics:
    • A QWR (12 U.S.C. § 2605(e)) is written correspondence that enables the servicer to identify the borrower’s account and either states reasons the account is in error or requests specific information relating to the servicing of the loan.
    • Post‑Dodd‑Frank Regulation X (12 C.F.R. §§ 1024.35, 1024.36) arranges servicer duties into “notices of error” and “requests for information,” but pleadings often still use “QWR” shorthand.
    • Servicers must acknowledge and substantively respond within prescribed timelines. Borrowers must prove actual damages caused by any violation and may seek statutory damages for a pattern or practice.
  • Note indorsed in blank and foreclosure:
    • When a promissory note is indorsed in blank, it becomes bearer paper. The person in possession is the “holder” and can enforce it, including foreclosing the mortgage securing it (as adopted under Alabama’s UCC).
    • Evidence of possession and default typically establishes a present right to foreclose.
  • Paragraph 22 (mortgage acceleration notice):
    • Many uniform mortgages require strict pre‑acceleration notice specifying the default, the action required to cure, a cure date, consequences of failure, and the right to reinstate/sue. Under Alabama law, compliance is a condition precedent to foreclosure.
    • Challenging notice requires identifying concrete deficiencies; claiming “no notice” will fail if the record contains compliant letters.
  • FDCPA § 1692f(6):
    • Targets nonjudicial dispossession where there is no present right to possession through an enforceable security interest, no present intention to take possession, or the property is exempt by law.
    • If the debt is in default and the creditor/servicer can prove a valid, enforceable security interest and right to foreclose, a § 1692f(6) claim generally fails.
  • TILA and servicers:
    • TILA’s key “creditor” duties (e.g., disclosure) are generally not imposed on servicers unless they also meet the statutory definition of “creditor” with respect to the transaction at issue.
  • FCRA furnisher liability:
    • After a consumer disputes information with a credit bureau and the bureau notifies the furnisher, the furnisher must reasonably investigate and correct inaccuracies. Plaintiffs must prove inaccuracy, CRA notice to the furnisher, and an unreasonable failure to investigate or correct.
  • Sham affidavit doctrine:
    • A court may strike portions of an affidavit that directly contradict prior deposition testimony without adequate explanation, to prevent a party from creating a manufactured factual dispute at summary judgment.
  • Abandonment and waiver on appeal:
    • Issues not raised in the opening brief are abandoned; arguments raised for the first time in a reply brief are not considered. Arguments not raised in the district court are typically waived on appeal.

Conclusion

The Eleventh Circuit’s unpublished decision in Embry v. Carrington offers two central takeaways. First, on summary judgment, courts must reckon with record attachments: a RESPA claim cannot be dismissed for lack of QWR content when the QWRs are attached to the pleadings. That point alone warranted vacatur and remand. Second, the opinion reaffirms durable rules that often decide mortgage cases: a borrower in material default cannot pursue breach claims under Alabama law; servicers are not TILA “creditors”; FCRA and defamation claims require specific, admissible evidence; FDCPA § 1692f(6) fails where the creditor has a present right to foreclose; and foreclosure will be affirmed where the record shows default and holder status (including possession of a note indorsed in blank).

In practice, plaintiffs must marshal concrete, admissible evidence for each element, timely and specifically challenge pre-acceleration notices if warranted, and ensure that QWRs (or their Regulation X analogues) are properly in the record. Defendants should maintain meticulous documentation of notice, default, note possession, and responses to borrower inquiries. Although unpublished, the decision provides a clear roadmap for litigating (and deciding) foreclosure-related claims at summary judgment in the Eleventh Circuit.

Case Details

Year: 2025
Court: Court of Appeals for the Eleventh Circuit

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