[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 15-12188

Non-Argument Calendar

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D.C. Docket No. 6:14-cv-01485-GAP-GJK

ARELIS NUNEZ, 

 Plaintiff-Appellant,

versus

J.P. MORGAN CHASE BANK, N.A., 

a Delaware Corporation,

MANUFACTURERS AND TRADERS TRUST COMPANY,

a New York Corporation, 

d.b.a. M and T Bank,

BAYVIEW LOAN SERVICING LLC,

a Delaware Limited Liability Company,

 Defendants-Appellees.

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Appeal from the United States District Court

for the Middle District of Florida

________________________

(April 22, 2016)

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Before MARTIN, JORDAN, and JULIE CARNES, Circuit Judges.

PER CURIAM: 

Arelis Nunez appeals the district court’s grant of motions to dismiss her 

amended complaint for failure to state a claim. She alleged that J.P. Morgan Chase 

Bank, N.A. (“Chase”), Manufacturers and Traders Trust Company (“M and T”), 

and Bayview Loan Servicing LLC (“Bayview”) violated the Real Estate Settlement 

Procedures Act, 12 U.S.C. § 2601 et. seq. (RESPA), and that Chase committed 

negligence per se, by mishandling her home mortgage after she temporarily fell 

into delinquency. Nunez sent two RESPA “notices of error” to Chase and one to 

Bayview alleging various mortgage account errors. First, she says Chase wrongly 

allowed her home to be foreclosed on despite having signed a loan-modification 

agreement with her. Second, she says Chase acted inconsistently with the loanmodification agreement before transferring the mortgage to M and T, which she 

also believes violated the agreement. The district court ignored Nunez’s second set 

of allegations and did not construe the facts favorably to her. After careful 

consideration, we reverse and remand.

I.

“We review de novo the district court’s grant of a motion to dismiss under 

[Federal Rule of Civil Procedure] 12(b)(6) for failure to state a claim, accepting the 

allegations in the complaint as true and construing them in the light most favorable 

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to the plaintiff.” Ironworkers Local Union 68 v. AstraZeneca Pharm., LP, 634 

F.3d 1352, 1359 (11th Cir. 2011) (quotation omitted). Even when assertions in a 

complaint are arguably ambiguous, they should be construed in the light most 

favorable to the plaintiff. Miccosukee Tribe of Indians of Fla. v. S. Everglades 

Restoration Alliance, 304 F.3d 1076, 1083–84 (11th Cir. 2002). To survive a 

motion to dismiss, a complaint need only contain sufficient facts, accepted as true, 

to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 

550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007). It must “raise a right to relief 

above the speculative level.” Id. at 555, 127 S. Ct. at 1965. 

RESPA—as implemented by Regulation X, 12 C.F.R. § 1024 (2015)—

allows borrowers to notify mortgage servicers of possible account errors. See 12 

C.F.R. § 1024.35. Once properly notified, a servicer must respond in one of two 

ways:

(A) Correct[] the error or errors identified by the borrower and 

provid[e] the borrower with a written notification of the correction, 

the effective date of the correction, and contact information, including 

a telephone number, for further assistance; or

(B) Conduct[] a reasonable investigation and provid[e] the borrower 

with a written notification that includes a statement that the servicer 

has determined that no error occurred, a statement of the reason or 

reasons for this determination, a statement of the borrower's right to 

request documents relied upon by the servicer in reaching its 

determination, information regarding how the borrower can request 

such documents, and contact information, including a telephone

number, for further assistance.

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Id. § 1024.35(e)(1)(i). Account errors are broadly defined by § 1024.35(b), which 

includes a residual category for “[a]ny other error relating to the servicing of a 

borrower’s mortgage loan.” Id. § 1024.35(b)(11).

II.

Nunez fell behind on her home mortgage—originally serviced by Chase—in 

2010. Chase initiated foreclosure proceedings and received judgment in its favor 

in October 2012. However, before the foreclosure sale took place, Nunez and 

Chase entered into a loan-modification agreement in January 2013,

1 which allowed 

her to avoid foreclosure by making reduced monthly payments. Or so she thought.

Despite the loan-modification agreement, Chase failed to timely notify the 

state court that the foreclosure sale should be cancelled or continued. Chase had 

originally requested that the state court postpone the foreclosure sale, which was 

rescheduled for March 20, 2013. But Chase waited too late to request further 

postponement—its foreclosure attorneys asked on the eve of the sale, despite a 

requirement that such requests be heard at least ten days beforehand.

2

 The 

foreclosure sale proceeded and Nunez’s property was sold on March 20, 2013. She 

claimed that she suffered eviction attempts as a result.

 1 Chase disputes when this agreement began, claiming it did not take full effect until May 2013 

because the initial period was merely a “trial.” As the district court noted, this period was only a 

“trial” insofar as final approval depended on Nunez making the reduced payments (which she 

did)—Chase did not retain total discretion over whether to grant a permanent loan modification.

2 The exact number of days before the sale that Chase sent the request is not clear, but it appears 

to have been between one and five.

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Notwithstanding the foreclosure sale, Nunez submitted all her “trial” 

payments and was approved for a permanent loan modification in May 2013. 

Around the same time, Chase sought to rescind the foreclosure sale. When this 

failed, Chase cancelled the loan-modification agreement with Nunez and stopped

applying her payments to the loan (though it retained them in a “suspense 

account”). In February 2014, Chase began again with the rescission process. The 

next month, Nunez sent a RESPA notice of error letter to Chase, informing it of the 

wrongful foreclosure on her home and requesting that it investigate and remedy the 

error by “implement[ing] the terms of the loan modification agreement.”

Chase promptly responded. Despite documenting this chain of events, 

Chase maintained that “there has not been an error with [Nunez’s] loan.” It 

averred that the loan-modification agreement had been “canceled,” but said that 

“[i]f the [rescission] is approved, we can then review [Nunez’s] mortgage for a 

modification.” The foreclosure sale was ultimately rescinded on May 15, 2014.

In late May and early June of 2014, Chase reopened negotiations for a loanmodification agreement with Nunez. Chase said it could renew the old loanmodification agreement if Nunez paid $3,450.09 toward her account. Chase 

acknowledges that she did so on July 3, 2014.

Nevertheless, Nunez continued to receive letters from Chase titled 

“Acceleration Warning (Notice of Intent to Foreclose).” Inconsistent with the 

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loan-modification agreement, these letters claimed that Nunez was in default, listed 

substantial (and conflicting) payments that were supposedly past due, and 

threatened another foreclosure. Nunez claimed that the three such letters she 

attached to her amended complaint were simply “examples [and] are not intended 

to be exhaustive.”

The renewed loan-modification agreement was completed in late August 

2014. Significantly, Nunez did not concede that the loan-modification was ever

successfully implemented—quite the contrary. See infra pp. 9–10. Nunez filed 

this lawsuit against Chase on September 10, 2014. She also sent a second RESPA 

notice of error letter to Chase, documenting its “continued failure to honor [her] 

loan modification agreement.” Once again, Chase responded by denying any error.

On September 16, 2014, Nunez’s loan was transferred to M and T.3 Chase 

alleged that this transfer occurred “with the modified loan terms and monthly 

payment in place.” On the other hand, Nunez alleged that the servicing errors 

regarding the loan-modification agreement were “ongoing.” For support, she 

attached to her amended complaint: (1) a September 30th letter from M and T 

stating that “you are presently in default” and threatening another foreclosure, and 

(2) an October 2nd letter from Bayview stating that “[y]our account may have been 

referred to an attorney for legal action, and additional fees and charges may be 

 3 Bayview allegedly partnered with M and T to service loans, including Nunez’s.

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accruing.” Nunez sent a third RESPA notice of error letter, this time to Bayview, 

on October 8, 2014. She documented the past problems with her account and 

requested that Bayview “confirm that the loan modification has been completely 

boarded and that your company will not take further collection activity.” Neither 

Bayview nor M and T ever responded.

In her amended complaint, Nunez claimed that (1) Chase had violated 

RESPA by failing to reasonably investigate and respond to her two notices of 

error; (2) Chase had thereby committed negligence per se; and (3) Bayview and M 

and T had violated RESPA by failing to respond to her third notice of error. The 

defendants both moved to dismiss the complaint under Rule 12(b)(6) for failure to 

state a claim, and Nunez responded. The district court granted both motions and 

denied Nunez’s request for reconsideration. Nunez timely appealed.

III.

The district court erred by granting the defendants’ motions to dismiss. The 

court did not properly construe the facts alleged by Nunez in accord with the 

standard applied on a Rule 12(b)(6) motion. Specifically, the district court 

construed Chase’s “[q]uizzical[]” responses to Nunez’s notices of error as evidence 

of a reasonable investigation that “fix[ed] the problem,” all while relying on 

unsupported inferences about Chase’s intentions and versions of the facts that 

contradict the allegations in Nunez’s amended complaint.

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In concluding that Chase’s responses complied with “the letter and spirit of 

[RESPA],” the district court impermissibly drew inferences in Chase’s favor. 

Despite acknowledging that Chase’s finding of no error was “odd conclusion” and 

“stands in contrast to the history traced out in the loan,” the court took it upon itself 

to offer a “fairer assessment” of Chase’s real intentions. The “[q]uizzical[]” 

responses, the court speculated, were actually a ruse designed to “comply with 

[RESPA’s] binary response options.” That is, Chase “chose” to repeatedly state 

that no error had occurred—despite secretly “conclud[ing] that there was a 

problem”—because RESPA “does not contemplate errors of the type that cannot 

be fixed within the thirty day response deadline.” According to the district court, 

Chase’s unreasonable assessments of the situation were just an adept workaround. 

This analysis simply failed to give proper deference to what Nunez said in her 

pleadings.

Beyond that, the district court ignored another set of Nunez’s allegations and 

again construed facts favorably to the defendants. Throughout this case, Nunez 

has clearly alleged that Chase failed to properly implement and honor the loanmodification agreement, and she has attached documents that support this claim. 

See, e.g., Doc. 1 at 6 (“[A]s the documents attached hereto as Exhibit ‘D’ reflect, 

Chase continues to fail to honor the loan modification agreement, and is once again 

pursuing foreclosure and collection activity.”); Doc. 24 at 7 (“[A]s the documents 

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attached hereto as Exhibit ‘D’ and ‘F’ reflect, Chase continued to fail to honor 

the[] loan modification agreement, and continued to pursue foreclosure and 

collection activity for the entire time that it serviced Plaintiff’s loan.”); Id. at 10 

(“[Chase] fail[ed] to properly handle and implement [Plaintiff’s] approved loan 

modification.”). In deciding Rule 12(b)(6) motions to dismiss, the district court 

was required to accept these allegations as true and construe all facts in the light 

most favorable to Nunez. Ironworkers Local Union 68, 634 F.3d at 1359. Instead, 

the court ignored these allegations and concluded that Chase “[did] the best it 

could,” “fix[ed] the problem,” and “put [Nunez] in her desired modified repayment 

program.” These conclusions were not proper in deciding Rule 12(b)(6) motions.

Viewed in the light most favorable to her, Nunez has alleged that her home 

was wrongly foreclosed on despite a valid loan-modification agreement, simply 

because Chase failed to timely request postponement of the foreclosure. Chase 

later purported to cancel its loan-modification agreement with her because it could 

not rescind the wrongful foreclosure. Even though it eventually did rescind the 

foreclosure and accept payment from Nunez to renew the loan-modification 

agreement, Chase continued to shower Nunez with letters claiming she was in 

default and threatening another foreclosure. When she repeatedly notified Chase 

that these errors had occurred, Chase flatly denied any error. Nunez’s

allegations—each supported by attachments—are not reflected in the district 

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court’s conclusions. Her claim that Chase failed to conduct a reasonable 

investigation into or correct its errors as required by RESPA rises above the level

of speculation. See Twombly, 550 U.S. at 555, 127 S. Ct. at 1965.

Attempting to justify the improper standard applied by the district court, the 

defendants argue that the court merely favored facts from Nunez’s attachments

over her “conclusory and unwarranted accusations.” However, the “facts” that the 

defendants allude to are taken from Chase’s own letters. For example, in response 

to Nunez’s claim that Chase failed to properly implement the loan-modification 

agreement, the defendants point to: (1) Chase’s second letter denying any error, 

and (2) Chase’s letter enclosing the renewed loan-modification agreement.4

 These 

documents do not contain “specific factual details” that “foreclose recovery as a 

matter of law.” Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1206 (11th Cir. 2007)

(quotation omitted). They are legal documents, drafted by one of the movants, 

which contain disputed accounts of the facts. Elevating claims in Chase’s own 

letters over the plaintiff’s allegations in the amended complaint and in other 

attachments would turn the standard for considering a Rule 12(b)(6) motion on its 

head.

 4 To the extent the second letter is cited to show that the loan-modification agreement was 

executed by Chase in August 2014, it is not even relevant. Nunez does not dispute this fact. She 

contends that Chase did not properly implement or honor the loan-modification agreement, not 

that it didn’t exist.

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The district court’s dismissals of Nunez’s RESPA claim against Bayview 

and M and T, as well as Nunez’s negligence per se claim against Chase, were

premised on the reasoning we rejected above. For the RESPA claim against 

Bayview and M and T, the district court concluded that dismissal was proper 

because Chase had already adequately responded to Nunez’s concerns. For the 

negligence per se claim against Chase, the district court concluded that dismissal 

was warranted because RESPA had not been violated. These conclusions cannot 

stand at this stage of the proceedings. After careful consideration of the record 

before us and the parties’ briefs, we REVERSE and REMAND.

REVERSED and REMANDED

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