RESPA Bars Recovery of Follow-Up QWR Attorney Fees and De Minimis Postage Costs

1. Introduction

In Murray v. Newrez LLC & PHH Mortgage Corporation, the Second Circuit addressed whether a mortgage borrower could recover expenses incurred in repeating unanswered requests for servicing information under the Real Estate Settlement Procedures Act (“RESPA”). The majority held that attorney fees for preparing a second qualified written request (“QWR”) were not recoverable as actual damages and that $3.20 in mailing expenses was too trivial to support recovery.

The decision distinguishes a servicer’s statutory obligation to respond from a borrower’s entitlement to damages. Even where a complaint alleges that required responses were never provided, the borrower must identify a legally recoverable loss. The central disagreement between the majority and dissent concerned whether modest, out-of-pocket expenses incurred to obtain compliance satisfy that requirement.

The court also rejected a substantially larger claim for interest and fees arising from a mortgage modification. That portion of the decision was not disputed by the dissent.

2. Background and Procedural History

Sherry Ann Murray sued PHH Mortgage Corporation, doing business as PHH Mortgage Services, and Newrez LLC, doing business as Shellpoint Mortgage Servicing. PHH serviced her mortgage, and Newrez acted as master servicer.

After Murray missed several monthly payments, her mortgage was modified. She alleged that improper interest and fees exceeding $70,277.15 had been added to her loan balance. Seeking information about her account, she sent QWRs to the defendants but allegedly received neither the required acknowledgments nor substantive responses.

Approximately six weeks later, according to the dissent’s account, Murray tried again. She paid an attorney $225 to prepare the follow-up requests and spent $3.20 mailing them. Those requests also allegedly went unanswered.

The Eastern District of New York, Judge Allyne R. Ross presiding, dismissed Murray’s first amended complaint with leave to amend because she had failed to allege damages. Her second amended complaint sought recovery for the modification-related charges, the $225 preparation expense, and the $3.20 postage expense. The district court dismissed that complaint as well.

The Second Circuit affirmed. Judge Newman wrote the majority opinion; Judge Pérez dissented from the rejection of the follow-up request expenses. Because the appeal concerned dismissal of the complaint, the opinions addressed the legal sufficiency of Murray’s allegations, not findings made after a trial.

3. Statutory Framework

The dispute involved three related provisions of RESPA:

• The response obligation: Under 12 U.S.C. § 2605(e), a servicer receiving a qualifying request concerning loan servicing generally must acknowledge receipt within five business days and provide a substantive response within the applicable period. The dissent also referenced 12 C.F.R. § 1024.36(c)–(f).
• Actual damages: Section 2605(f)(1)(A) authorizes recovery of “any actual damages to the borrower as a result of the failure.”
• Litigation expenses: Section 2605(f)(3) separately authorizes costs and reasonable attorney fees incurred in connection with a successful action, “[i]n addition to” the damages available under the preceding provisions.

Section 2605(f)(1)(B) also permits additional damages of up to $2,000 for a pattern or practice of noncompliance. That provision became relevant to the debate over small claims, although the appeal did not establish Murray’s entitlement to such an award.

4. Summary of the Decision

A. Mortgage-modification charges were not recoverable

The majority concluded that the challenged interest and fees arose from the mortgage modification following Murray’s missed payments, rather than from servicing the mortgage. They therefore were not recoverable in this RESPA action. The court expressly left open whether Murray actually owed those charges.

Judge Pérez agreed that the modification-related charges were not damages resulting from the alleged servicing violations. Thus, neither opinion treated unanswered information requests as a means of recovering every disputed amount associated with the loan.

B. The $225 attorney expense was not actual damages

The majority treated the statute’s separate attorney-fee provision as controlling. Because § 2605(f)(3) specifically addresses attorney fees and makes them available in a successful action, those fees could not also be recovered under the broader actual-damages provision. Murray had not prevailed and therefore could not obtain a fee award under § 2605(f)(3).

C. The $3.20 postage expense was de minimis

The majority rejected the mailing expense under de minimis non curat lex—the principle that the law does not concern itself with trifles. It declined to treat the statute’s separate authorization of additional damages as evidence that Congress intended federal courts to entertain a $3.20 postage claim.

D. The dissent would have allowed the $228.20 claim to proceed

Judge Pérez distinguished expenses incurred to obtain a servicing response from expenses incurred to litigate. In her view, Murray plausibly alleged that the defendants’ initial noncompliance caused both the preparation and mailing expenses. She would have vacated the judgment and remanded for further proceedings—not ordered immediate payment.

5. Precedents Cited and Their Influence

A. Decisions supporting exclusion of attorney fees from actual damages

WhiĴier v. Ocwen Loan Servicing, L.L.C., 594 Fed Appx. 833, 836–37 (5th Cir. 2014)

The majority cited this Fifth Circuit decision for the proposition that attorney fees are not actual damages under RESPA because the statute provides for fees separately, “[i]n addition to” damages. Its role was persuasive support for treating the two forms of recovery as distinct statutory categories.

Allen v. United Financial Mortgage Corp., 660 F. Supp. 2d 1089, 1097 (N.D. Cal. 2009)

The majority cited this district court decision for the same interpretation. Together, these authorities supported the majority’s conclusion that a borrower cannot use attorney fees themselves as the actual damages necessary to sustain the action.

B. Authorities establishing that the specific governs the general

RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645 (2012)

This Supreme Court decision supplied the principle that a specific statutory provision ordinarily governs over a general one. The majority characterized § 2605(f)(3), which expressly addresses attorney fees, as more specific than § 2605(f)(1)(A), which broadly addresses actual damages.

The dissent accepted the canon but disputed its application: a provision governing litigation-related fees, she reasoned, does not govern attorney work performed independently to obtain servicing information.

Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 228 (1957)

The majority relied on this decision’s instruction that general statutory language does not ordinarily extend to a matter specifically addressed elsewhere in the same enactment. It reinforced the conclusion that “actual damages” should not absorb fees addressed by a separate provision.

Davis v. Shah, 821 F.3d 231, 251 (2d Cir. 2016)

This Second Circuit precedent supplied the same interpretive rule within the circuit. Its relevance was methodological rather than RESPA-specific: it supported priority for the provision expressly addressing attorney fees.

Nat'l Cable & Telecomms. Ass'n v. Gulf Power Co., 534 U.S. 327, 336 (2002)

The dissent invoked this decision to qualify the specific-over-general canon: “The specific controls but only within its self-described scope.” For Judge Pérez, the limiting language “incurred in connection with such action” prevented § 2605(f)(3) from displacing recovery for legal work unrelated to litigation.

This authority identifies the precise interpretive disagreement: whether the fee provision covers attorney services generally or only services connected with the lawsuit.

C. Distinguishing attorney work from litigation expenses

Key Tronic Corp. v. United States, 511 U.S. 809 (1994)

This environmental-cleanup case was central to the dissent. The Supreme Court distinguished nonrecoverable fees for prosecuting a cost-recovery action from recoverable expenses for identifying other responsible polluters. The latter work could have been performed by nonlawyers and was distinct from litigation.

Judge Pérez applied that functional distinction to Murray’s follow-up requests: the relevant question should be what the attorney did, not simply whether an attorney performed the work. The majority distinguished the case because the statutory scheme there lacked RESPA’s particular separation between damages and attorney fees through the “[i]n addition to” language.

D. Authorities concerning statutory breadth and causation

United States v. Gonzales, 520 U.S. 1, 5 (1997)

The dissent cited this decision for the breadth ordinarily conveyed by “any.” Applied to “any actual damages,” that reading favored recovery of genuine out-of-pocket losses without an unstated restriction based on their category or size.

Wirĵ v. Specialized Loan Servicing, LLC, 886 F.3d 713, 719 (8th Cir. 2018)

The dissent used this RESPA authority to emphasize that damages must result from the statutory violation. An expense incurred after noncompliance is not necessarily an expense caused by noncompliance.

Renfroe v. Nationstar Mortg., LLC, 822 F.3d 1241, 1246 (11th Cir. 2016)

This decision likewise supported the causal requirement. It helped explain why the dissent accepted the follow-up expenses while rejecting the modification charges and the costs of the original requests.

Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 132 (2014)

The dissent cited the general presumption that statutory causes of action require proximate causation. Even an actual loss must be sufficiently direct, rather than remote from the violation. On Murray’s allegations, paying to repeat an unanswered request met that pleading requirement.

E. Authorities concerning trivial losses

Sandifer v. U.S. Steel Corp., 571 U.S. 220, 233–34 (2014)

The majority cited this decision for the traditional de minimis principle. The dissent emphasized its contextual limitation: the Supreme Court questioned the doctrine’s suitability where the statutory provision was itself “all about trifles.” For her, RESPA’s authorization of “any actual damages” likewise constrained judicial exclusion of small losses.

The competing uses of the same precedent show that the disagreement concerned not the doctrine’s existence, but whether the statutory text permitted its application here.

Ortiz v. NewRez LLC, 729 F. Supp. 3d 71, 74–75 (D. Mass. 2024)

This was the majority’s closest factual analogy on postage. The district court there rejected, as de minimis, postage expenses incurred in sending a second QWR after incomplete compliance with the first. The Second Circuit adopted the same approach to Murray’s $3.20 claim.

6. Analysis of the Court’s Legal Reasoning

A. A response violation does not automatically establish damages

The decision separates statutory breach from compensable injury. Murray alleged repeated failures to respond, but that did not resolve whether her claimed losses were recoverable under § 2605(f). The affirmance therefore should not be read as approving the alleged nonresponses.

The treatment of the modification charges illustrates this distinction. Disagreement about the loan balance did not itself establish that the servicers’ failure to answer QWRs caused the disputed amounts. Nor did the court decide the underlying contractual validity of those charges.

B. The majority classified fees by statutory category; the dissent classified them by function

For the majority, the express attorney-fee provision controlled the broader damages language. Its approach prevents a claimant from avoiding the successful-action requirement by relabeling attorney fees as damages.

The dissent’s approach focused instead on the work’s purpose. Fees for researching a lawsuit, drafting a complaint, or pursuing an appeal fall within litigation fee shifting. An expense incurred to repeat a servicing request, however, may exist independently of any lawsuit.

Judge Pérez illustrated the distinction through a comparison: if a housing counselor and an attorney perform the same follow-up task for the same price, why should only the attorney’s involvement defeat recovery? Her point was that professional identity does not necessarily determine whether an expense is a litigation cost.

The majority did not separately resolve whether comparable nonlawyer preparation expenses would qualify. Its holding directly concerns the attorney expense Murray alleged.

C. The disagreement over “[i]n addition to”

Both opinions relied on the same statutory phrase. The majority understood “[i]n addition to” as confirming that fees and actual damages occupy separate categories. The dissent understood it as authorizing complementary recoveries: compensation for losses caused by noncompliance, plus reasonable expenses of successfully litigating that noncompliance.

Under the dissent’s interpretation, no double recovery would be permitted, and litigation expenses could not simply be repackaged as damages. The dispute was whether Murray’s preparation expense belonged to the litigation category at all.

D. Causation explains the difference between first and follow-up requests

The dissent agreed that preparing and mailing the original requests could not constitute damages caused by a later failure to respond. Those expenses necessarily preceded the violation.

The second requests had a different alleged causal basis: Murray claimed she would not have incurred their cost had the defendants answered the first requests. Judge Pérez regarded that allegation as sufficient to proceed, while leaving the defendants free to dispute whether the expense was actually incurred and whether the work concerned compliance rather than litigation.

E. De minimis reasoning creates a boundary not expressed as a dollar minimum

The majority held that $3.20 was too small to warrant recovery, but it did not identify a general minimum amount for RESPA claims. The decision therefore should not be converted into a broader numerical threshold.

An important statutory distinction concerns the $2,000 figure discussed by both opinions. Although the majority referred to a maximum on recoverable damages, § 2605(f)(1)(B) caps additional pattern-or-practice damages, not actual damages under § 2605(f)(1)(A). The dissent’s argument was that Congress specified a ceiling for one category while supplying no floor for actual losses.

The majority nevertheless viewed that separate ceiling as insufficient to displace the traditional de minimis principle. The resulting tension is between a background doctrine permitting courts to disregard trivial claims and statutory language authorizing “any actual damages.”

7. Potential Impact

• More demanding damages allegations: Borrowers must connect each claimed loss to the servicing violation rather than rely on the existence of unanswered correspondence or a disputed loan balance.
• Restricted reliance on follow-up legal expenses: Within the Second Circuit, attorney fees for preparing repeat QWRs cannot supply actual damages under this decision.
• A barrier to postage-only claims: The ruling supports dismissal where the remaining claimed loss is the $3.20 mailing expense addressed here. It does not establish that every small expenditure is unrecoverable.
• Continued importance of the litigation/nonlitigation distinction: Although rejected as a basis for recovery here, the dissent provides a developed argument for treating compliance-related services differently from lawsuit preparation.
• Possible enforcement consequences: The majority’s approach limits litigation founded on minimal transaction costs. Conversely, it may leave borrowers without a damages remedy where repeated nonresponses produce only modest expenses rather than larger financial harm.

The majority’s holdings govern; the dissent does not. Nevertheless, its textual and functional analysis may influence later litigation or consideration of statutory clarification. The decision does not determine liability for all mortgage-modification disputes or all expenses incurred after a servicing violation.

8. Complex Concepts Simplified

Qualified written request

A qualifying written request from a borrower concerning mortgage servicing that triggers statutory response duties.

Actual damages

A real loss caused by the violation. Showing that a servicer broke the rules does not, by itself, establish such a loss.

American Rule

The usual rule that parties pay their own litigation attorney fees unless a statute or another recognized exception provides otherwise.

Fee shifting

A rule requiring one party to pay another’s qualifying legal expenses. RESPA permits reasonable fees connected with a successful action.

Specific-over-general canon

When two statutory provisions cover the same subject, the more precise provision ordinarily controls. Here, the disagreement was whether the fee provision covered the particular work performed.

Proximate causation

A requirement that the injury be sufficiently connected to the violation, rather than a remote consequence or mere coincidence.

De minimis non curat lex

“The law does not concern itself with trifles.” The majority applied it to the $3.20 postage claim; the dissent considered that inconsistent with the statutory text.

9. Conclusion

Murray establishes that attorney fees for preparing follow-up QWRs cannot serve as actual damages under RESPA and that the $3.20 mailing expense at issue was unrecoverable as de minimis. It also rejects recovery of modification-related charges unrelated to the alleged servicing violations.

Its broader significance lies in the boundary between a statutory right to a response and a judicially enforceable damages claim. The majority strictly separated damages from attorney-fee recovery; the dissent would have recognized directly caused compliance expenses regardless of who performed the work or how small the loss was.