Kievman v. Federal National Mortgage Association
In Kievman v. Fannie Mae, another court in the Southern District of Florida was faced with the identical issue as the Montano court. Morris Kievman's and Devorah Berstein's loan was owned by Fannie Mae and serviced by Seterus. On July 7, 2011, the borrowers' attorney sent a letter to Seterus making 15 numbered requests for information regarding their loan including a 1641(f) (2) request, and Seterus responded August 3, 2011.
In the complaint, the borrowers alleged that Fannie Mae violated Section 1641(f) (2) when Seterus failed to respond with Fannie Mae's address and telephone number. Seterus' August 3, 2011 letter did disclose to the borrowers that Fannie Mae was the owner of the loan, but the letter failed to provide Fannie Mae's address and telephone number. Since a servicer cannot be liable for damages for violating Section 1641(f) (2), the court framed the issue as whether Fannie Mae could be vicariously liable for the servicer's violation of the section.
The court acknowledged that there is a split in the Southern District of Florida on the question of vicarious liability with respect to Section 1641(f)(2). In citing Holcomb (another case out of the Southern District), the court rejected the borrowers' vicarious liability argument. The court recognized that it is diﬃcult to reconcile the 2009 amendment to TILA making creditors liable for Section 1641(f) (2) violations since the section only applies to servicers. The court reconciled this discrepancy by concluding that Congress intended for servicers to be liable for damages under the section only when the servicer was or is the owner of the obligation. The court added that if an owner‐servicer fails to comply with subsection (f) (2), it is clearly subject to liability. Fannie Mae was the owner of the loan, but was not the servicer of the loan, and accordingly Fannie Mae's motion to dismiss was granted.