UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 22-81364-CV-AMC

RAFAEL FIS, and

MARIA FIS, 

 Plaintiffs, 

vs.

NEWREZ, LLC 

d/b/a SHELLPOINT MORTGAGE SERVICING, 

 Defendant.

______________________________________________/ 

REPORT AND RECOMMENDATION ON MOTION TO DISMISS 

COMPLAINT [ECF No. 8] 

Plaintiffs Rafael and Maria Fis bring this action for damages under the Real 

Estate Settlement Procedures Act (“RESPA”). ECF No. 1. Defendant moves to dismiss 

on the grounds that Plaintiffs lack statutory standing, lack Article III standing, and 

fail to adequately plead an entitlement to damages. ECF No. 8. For the following 

reasons, Plaintiffs have not suffered a constitutionally-sufficient injury-in-fact, so 

they lack Article III standing. The Motion to Dismiss should be GRANTED.

I. FACTS1

In May 2008, a single-family residence at 8921 Starhaven Cove, Boynton 

Beach, Florida (“the Property”), was sold. ¶¶ 11, 14, 15. The warranty deed conveyed 

1 Unless otherwise noted, these facts are taken from the Complaint, ECF No. 1. 

Citations to paragraphs (“¶”) refer to the numbered paragraphs of the Complaint.

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title to Diana Fis, Omar Fis, Raphael Fis, and Maria Fis. ¶15; ECF No. 8 at 22.2 

Simultaneously, Diana and Omar Fis signed a promissory note with Bank of America

(“the Note”). ¶14; ECF No. 8 at 24-29. The note was secured by a mortgage on the 

Property (“the Mortgage”). ¶14. The original mortgage was conveyed only by Diana 

and Omar Fis. ECF No. 8 at 31. It was later reformed nunc pro tunc to add Raphael 

and Maria Fis as mortgagors. ¶17. Raphael and Maria Fis were not obligors on the 

Note. ECF No. 8 at 24-29.

Defendant is the servicer for the Note. ¶9. On June 27, 2022, Raphael and 

Maria Fis submitted a loan mitigation application (LMA) to Defendant. ¶18. 

Defendant did not respond to the LMA. ¶20. On August 1, 2022, Raphael and Maria 

Fis sent a reminder notice to Defendant. ¶22. Defendant did not respond to the 

reminder notice. ¶24.

II. LEGAL PRINCIPLES

The proper procedural vehicle to challenge Article III standing is a motion 

under Fed. R. Civ. P. 12(b)(1). Article III standing is a prerequisite to the Court 

exercising subject matter jurisdiction. “Article III standing ‘limits the category of 

2 The Note, Mortgage, and warranty deed were appended to Defendant’s Motion. The

Court can consider these documents even though they are outside the four corners of 

the Complaint. Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005) (In ruling on 

12(b)(6) motion, court can consider documents attached to the motion if they are 

central to the plaintiff’s legal claims and their authenticity is not challenged.); 

Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (citations omitted) (Court 

can consider matters outside the pleadings when defendant challenges “the existence 

of subject matter jurisdiction in fact, irrespective of the pleadings.”).

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litigants empowered to maintain a lawsuit in federal court to seek redress for a legal 

wrong,’ Spokeo, Inc. v. Robins, ––– U.S. ––––, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 

(2016), and it ‘is a threshold jurisdictional question which must be addressed prior to 

and independent of the merits of a party's claims.’” United States v. Ross, 963 F.3d 

1056, 1062 (11th Cir. 2020) (en banc) (citation omitted). Without Article III standing, 

there is no constitutionally-cognizable case or controversy. A Court that lacks subject 

matter jurisdiction is without power to act. 

In contrast, when Congress creates a statutory cause of action, it can limit the 

class of people who can assert that cause of action. A person must fall within the class 

to obtain relief. A person who falls outside that class can be said generically to lack 

“standing” in the sense that he/she is not allowed to bring a lawsuit under the statute. 

But, the proper perspective is that the person cannot satisfy one of the elements of 

the cause of action — they cannot state a claim upon which relief can be granted. The 

proper procedural vehicle to frame this issue is a motion under Fed. R. Civ. P. 

12(b)(6).

The same facts may resolve whether a person has Article III standing and/or 

can state a claim upon which relief can be granted. For example, a person who falls 

outside the coverage of a statute often will not have suffered a sufficient injury-infact. Where relief is sought simultaneously under both Rules 12(b)(1) and 12(b)(6), 

the Court should address the 12(b)(1) issue first. Hitt v. City of Pasadena, 561 F.2d 

606, 608 (5th Cir. 1977) (“Ordinarily, where both these grounds for dismissal apply, 

the court should dismiss only on the jurisdictional ground under Fed. R. Civ.

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P. 12(b)(1), without reaching the question of failure to state a claim under Fed. R.

Civ. P. 12(b)(6).”).

A. Article III Standing

As relevant here, Article III of the constitution limits the judicial power of the 

federal courts to cases or controversies arising under the laws of the United States. 

“This case-or-controversy requirement comprises three familiar ‘strands’: (1) 

standing, (2) ripeness, and (3) mootness.” Gardner v. Mutz, 962 F.3d 1329, 1336 (11th 

Cir. 2020) (citations omitted). 

The party invoking the jurisdiction of a federal court bears the burden of 

establishing these elements to the extent required at each stage of the 

litigation. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).

There are three elements to establish standing. There must be an injury-infact (an invasion of an interest that is both concrete and particularized, and actual or 

imminent), a causal connection between the plaintiff's injury and the challenged 

action of the defendant, and a likelihood (not merely speculation) that a favorable 

judgement will redress the plaintiff's injury. Gardner, 962 F.3d at 1338 

(quoting Lujan, 504 U.S. at 560-61). A plaintiff must satisfy all three elements to 

establish standing. Id.

To be a concrete injury-in-fact, a plaintiff's injury must be “de facto” and 

“real”, not “abstract.” Gardner, supra, at 1341. An injury must also be 

particularized in that it “must affect the plaintiff in a personal and 

individual way.” Spokeo Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016). All 

three requirements of concrete, particularized, and imminence must be 

met to establish an injury-in-fact. Trichell v. Midland Credit Mgmt., 

Inc., No. 18-14144, 2020 WL 3634917, at *3 (11th Cir. July 6, 2020). The 

causation requirement of standing requires that, “a plaintiff's injury 

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must be fairly traceable to the challenged action of the defendant, 

and not the result of the independent action of some third 

party not before the court.” Jacobson v. Florida Secretary of State, 957 

F.3d 1193, 1207 (11th Cir. 2020) (quoting Lujan, 504 U.S. at 560). 

Redressability is the likelihood that a favorable judgment by the court 

will actually redress the plaintiff's alleged injury.

Tomelleri v. Natale, 19-CV-81080, 2020 WL 5887151, at *2–3 (S.D. Fla. July 16, 2020)

(J. Reinhart).

B. RESPA

RESPA requires “servicers” of “federally related mortgage loans” to take 

certain actions in response to requests from “borrowers.” See, e.g., 12 U.S.C. §2605(k). 

The statute defines “servicer”, 12 U.S.C. §2605(i)(2), and “federally related mortgage 

loan.” 12 U.S.C. §2602(1). Neither the statute nor its implementing regulations define 

“borrower.” 

As relevant here, RESPA and its regulations require a servicer to respond in 

writing within five business days of receiving an LMA from a borrower. 12 C.F.R. 

§ 1024.41(b)(2)(i)(B). The response must acknowledge receipt of the LMA and must 

tell the borrower whether the loan servicer considers the LMA complete or 

incomplete. Id. Separately, within 30 days of receiving the LMA, the loan servicer 

must notify the borrower in writing whether any loan mitigation options were 

available for the borrower. 12 C.F.R. § 1024.41(c). That 30-day period can be extended 

if the borrower sends a reminder notice. Id. 

III. DISCUSSION 

Resolution of this Motion turns on the definition of the term “borrower” as used 

in RESPA. The Complaint alleges that Defendant violated RESPA by not providing 

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timely and proper responses to the LMA and the Reminder Notice. ECF No. 1 ¶¶24, 

36, 44. Defendant argues Plaintiffs are not “borrowers” entitled to invoke RESPA. 3

Before turning to the merits, it is instructive to briefly review the structure of 

a secured, funded residential purchase transaction, and the relevant documents. In

such a transaction, the seller conveys real property to the buyer for money. The 

document evidencing the transfer of title is the deed. The buyer borrows money from 

a lender and signs a promissory note; the note is an agreement that the buyer will 

pay the lender back. 

There are multiple ways the lender can decrease the risk of not being repaid. 

Often, the buyer conveys a security interest in the real property to the lender; the 

document formalizing that security interest is the mortgage. Restatement (Third) of 

Property (Mortgages) § 1.1 (1997) (“A mortgage is a conveyance or retention of an 

interest in real property as security for performance of an obligation”). Or, a third 

party who is not a signatory to the note can pledge their own assets to secure the 

loan. If the third party has an interest in the real property, they can sign the 

mortgage, or they can execute a separate security agreement. Or, a third party may 

guarantee repayment of the loan even though that person does not receive the loan 

proceeds. The guarantor may be a signatory to the note or may execute a separate 

guarantee document.

3 The Complaint alleges, and Defendant does not dispute, that Defendant is a loan 

servicer for purposes of RESPA, ¶9, and that the Note was a federal related mortgage 

loan. ¶13. Defendant also asserts it properly responded to the LMA. ECF No. 8 at 5 

n.2. This assertion is not supported by any sworn declaration or authenticated 

document, so it will not be considered. 

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Standing alone, the mortgage is not an obligation or promise to pay anything. 

Restatement (Third) of Property (Mortgages) § 1.1 cmt. (1997) (“Unless it secures an 

obligation, a mortgage is a nullity.”). It merely pledges an identifiable asset as 

security for the loan. The mortgage may contain conditions such as keeping the loan 

current, having insurance, paying property taxes, and maintaining the property in 

good order. If the owner fails to comply with these conditions, the lender can sue to 

take ownership of the property to pay the debt. Restatement (Third) of Property 

(Mortgages) § 8.1 cmt. (note can become immediately due and payable not only “for 

failure to pay the mortgage debt promptly, but also for defaults in mortgage 

covenants to pay taxes, to maintain insurance, to keep buildings intact, to maintain 

an adequate financial condition, to avoid the commission of waste, and the like.”). 

When the lender takes the mortgaged asset, it is said to “foreclose” on it. Under 

Florida law, a foreclosure extinguishes the mortgage. U.S. Bank Nat'l Ass'n v. Larsen, 

736 Fed. Appx. 775, 777 (11th Cir. 2018). Depending on the terms of the note, a 

foreclosure on the property may also extinguish the debt.4 

People often conflate the loan and the mortgage. They speak in terms of 

making a “mortgage payment” or “owing a mortgage.” Whatever colloquial value 

those phrases may have, they are not legally accurate. The mortgage does not create

4 If the lender is limited to collecting against the mortgaged asset, the loan is a “nonrecourse” loan. Restatement (Third) of Property (Mortgages) § 1.1 cmt. (1997). 

Otherwise, if the value of the foreclosed property is not enough to pay off the full debt, 

the lender can obtain a deficiency judgment and try to collect the balance of the debt 

from the borrower’s other assets. Restatement (Third) of Property (Mortgages) § 8.4

cmt. (1997)

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an obligation to pay; the promissory note does not transfer a security interest in the 

property: 

A “mortgage is the security for the payment of the negotiable promissory 

note.” A promissory note is not a mortgage. Instead,

“The promise to pay is one distinct agreement, and, if 

couched in proper terms is negotiable. The pledge of real 

estate to secure that promise is another distinct 

agreement, which ordinarily is not intended to affect in the 

least the promise to pay, but only to give a remedy for 

failure to carry out the promise to pay. The holder of the 

note may discard the mortgage entirely, and sue and 

recover on the note.”

Cleveland v. Crown Fin., LLC, 183 So. 3d 1206, 1209–10 (Fla. 1st DCA 2016)

(citations omitted). “Put simply, a loan obligates you to pay the lender back, while a 

mortgage gives the lender the ability to take your house if you fail to meet that 

obligation. Thus, although most people get both a loan and a mortgage when they buy 

a house, the two are separate agreements setting forth different rights and 

obligations.” Keen v. Helson, 930 F.3d 799, 801 (6th Cir. 2019). 

Defendants allege that Plaintiffs have not suffered a constitutionally-sufficient

injury-in-fact because they were not borrowers or otherwise obligated on the Note. 

ECF No. 8 at 4-5. The Eleventh Circuit addressed this issue in Johnson v. Ocwen 

Loan Servicing, 374 Fed. Appx. 868 (11th Cir. 2010). There, the plaintiff’s mother 

purchased a property, borrowed money for the purchase, and executed a mortgage on 

the property to secure the loan. The mother later transferred the property to the 

daughter by quitclaim deed. The defendant was the loan servicer. Plaintiff sued under 

RESPA. The loan servicer moved to dismiss on the grounds that plaintiff had not 

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suffered an injury-in-fact because she was not the borrower on the loan. The district 

court dismissed for lack of subject matter jurisdiction and the Eleventh Circuit 

affirmed. It said, “[Plaintiff’s] amended complaint fails to establish Article III 

standing, because [plaintiff] was not a borrower or otherwise obligated on the 

[defendant’s] loan and, therefore, did not suffer an injury-in-fact.” Id. at 873.5

Johnson is dispositive of Plaintiffs’ claim. Like the plaintiff in Johnson, they 

are not signatories to the promissory note nor do they have any legal obligation to 

repay the note.

The Sixth Circuit in Keen reached the same conclusion. There, a husband and 

wife bought a home. Both signed the mortgage. Only the husband signed the loan. 

They later divorced and the husband conveyed full title to the wife. After the husband 

died, the wife continued making payments on the loan, even though she was not an 

obligor. When she fell behind on her payments, she asked the lender for relief. The 

lender foreclosed on the house. The wife then sued under RESPA. The Sixth Circuit 

held that the wife was not a “borrower” and therefore had no cause of action under 

RESPA.6 See 930 F.3d at 806; see also Nelson v. Nationstar Mortgage LLC, 7:16-CV00307-BR, 2017 WL 1167230, at *3 (E.D.N.C. Mar. 28, 2017) (collecting cases holding 

5 I interpret the phrase “otherwise obligated on” the loan to reference third party 

guarantors, who have a contractual duty to repay the loan.

6 Unlike the Eleventh Circuit in Johnson, which found a lack of constitutional 

standing, the Sixth Circuit resolved Keen on 12(b)(6) grounds. 930 F.3d at 806 (“The 

district court correctly concluded that Keen does not have a cause of action under 

RESPA because she is not a “borrower” and therefore properly dismissed her 

claims.”).

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that only individuals who execute the promissory note are “borrowers” with standing 

to bring a RESPA claim). 

Plaintiffs attempt to distinguish Johnson because the plaintiff there — unlike 

Plaintiffs here — was not a signatory to the mortgage. ECF No. 9 at 4-5. Being a 

signatory on the mortgage does not create an obligation to repay the related 

promissory note. Plaintiffs also assert:

Plaintiffs acquired title via a special warranty deed directly from the 

home builder (the first family to ever live in the subject property), lived 

in the property since 2008, always intended to be on the Mortgage, made 

payments on the loan, have the property homesteaded in their name, 

and have otherwise obligated themselves to the non-payment covenants 

of the Mortgage, such as occupying and maintaining the property, and 

the threat of default and possible foreclosure.

ECF No. 9 at 5 (emphasis in original) (footnote omitted). These additional facts are 

not alleged in the Complaint nor are they supported by sworn evidence or documents 

(other than a citation to the Palm Beach Property Appraiser’s website showing that 

the Property is homesteaded in the names of Rafael and Maria Fis). Id. n.3. Even if 

they are accepted as true, they do not affect whether Plaintiffs are “borrowers.” Even 

if Plaintiffs (like the wife in Keen) have voluntarily done things to prevent losing the 

Property or to evince an intention to own the Property themselves, they are not 

legally obligated to repay the Note.7

Plaintiffs rely on Ocampo v. Carrington Mortgage Servs., LLC, 288 F. Supp. 3d 

1327, 1333 (S.D. Fla. 2017), but that case (which cannot overrule or modify the 

7 I suspect Plaintiffs would take a contrary position if the lender tried to get a 

deficiency judgment against them on the theory that the cited actions converted them 

into persons obligated to pay the full amount of the Note. 

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Eleventh Circuit’s decision in Johnson) does not support Plaintiffs’ position. In 

Ocampo, the plaintiff was the co-purchaser of a residential real property. He executed 

a note and mortgage related to that purchase. Nine months later, he transferred his 

ownership interest to his co-purchaser by quitclaim deed, but he remained obligated 

under the mortgage. Five years after that, he filed for bankruptcy and was discharged 

from his obligations under the note. One month after the discharge, the lender 

foreclosed on the property, which ended the plaintiff’s obligations under the 

mortgage. Two years later, despite no longer holding any ownership in the property 

or being obligated on the note or mortgage, the plaintiff sought a loan modification. 

When it was denied, he sued the loan servicer under RESPA. 

This Court dismissed the lawsuit for lack of Article III standing. It framed the 

issue presented as “whether an individual with no legal interest in the property and 

with no financial obligation for that property can avail himself of the remedies under 

RESPA.” Id. at 1328. The answer was, “No.” Id. The Court also said, “Were the Court 

to hold otherwise, any individual could initiate loan modification proceedings with a 

loan servicer, perhaps for their neighbor or family member, in the hopes that the loan 

servicer would commit a procedural violation subject to attorney’s fees. The 

requirements of Article III of the Constitution prohibit such an absurd result.” Id. 

In a separate discussion, in dicta, of prudential standing, the Court said, “The 

statute does not define borrower, however, courts consistently hold that a borrower 

is someone who either signed the note or who is otherwise obligated under the 

mortgage.” Id. at 1333 (citing Washington v. Green Tree Servicing LLC, No. 15-cvCase 9:22-cv-81364-AMC Document 15 Entered on FLSD Docket 12/28/2022 Page 11 of 14
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354, 2017 WL 1857258, at *4 (S.D. Ohio May 5, 2017)). It continued, “While Plaintiff 

was once a borrower under the note and mortgage, he is no longer obligated under 

either instrument. Indeed, he was fortunate enough to lose his status as a ‘borrower’ 

when the bankruptcy court discharged his debt.” Ocampo, 288 F. Supp. 3d at 1333.

Even though the plaintiff in Ocampo had both “no legal interest in the property 

and ... no financial obligation for that property,” the Court never said that both of 

these conditions were necessary to its decision. Those were the accurate facts of that 

case. To the extent Ocampo used the phrase “obligated under the mortgage” that 

language was imprecise and inaccurate in this context. In sum, Plaintiffs are 

incorrect in concluding that Ocampo announces a rule that either a legal interest in 

the property or a financial obligation is sufficient to convey “borrower” status.8 

Although the Eleventh Circuit’s binding ruling in Johnson disposes of this 

case, in the alternative I would turn to canons of statutory interpretation. I adopt in 

full Judge Thapar’s thorough discussion in Keen of how to apply the relevant canons 

to the term “borrower” in RESPA. 930 F.3d at 802-04. I further adopt his conclusion

that “only people who are personally obligated under a loan — those who signed or 

assumed it — can be ‘borrower[s]’ under RESPA. Conversely, signing a mortgage, or 

owning a home subject to one, does not make you a ‘borrower.’” Id. at 802 (brackets 

and italics in original).

8 Plaintiffs also rely on other district court cases from outside the Eleventh Circuit, 

including cases in the Sixth Circuit that are superseded by Keen. This Court is bound 

by Johnson, so no further discussion of those cases is needed.

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Plaintiffs hold title to the Property by virtue of the warranty deed. They have

given the lender a security interest in the Property through the Mortgage. But, they 

have not received anything from the lender and are not obligated as a matter of 

contract to repay the Note. To avoid losing the Property, it may be in their economic 

interest to repay the Note, but that “obligation” does not make them “borrowers” for 

purposes of RESPA. 

 Because Plaintiffs are not “borrowers” within the meaning of RESPA, their 

Complaint must be dismissed for lack of Article III standing. Johnson, 374 Fed. Appx. 

at 873. 

REPORT AND RECOMMENDATION

Accordingly, this Court RECOMMENDS that the District Court GRANT the 

Motion to Dismiss without prejudice. See Stalley ex rel. United States v. Orlando Rel's 

Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008) (A dismissal for a lack of 

standing is not a ruling on the merits and is entered without prejudice.).

NOTICE OF RIGHT TO OBJECT

A party shall serve and file written objections, if any, to this Report and 

Recommendation with the Honorable Aileen M. Cannon, United States District Court 

Judge for the Southern District of Florida, within FOURTEEN (14) DAYS of being 

served with a copy of this Report and Recommendation. Failure to timely file 

objections shall constitute a waiver of a party's "right to challenge on appeal the 

district court’s order based on unobjected-to factual and legal conclusions." 11th Cir. 

R. 3-1 (2016).

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If counsel do not intend to file objections, they shall file a notice 

advising the District Court within FIVE DAYS of this Report and 

Recommendation.

DONE and SUBMITTED in Chambers at West Palm Beach, Palm Beach 

County, in the Southern District of Florida, this 28th day of December 2022.

__________________________________

BRUCE E. REINHART

UNITED STATES MAGISTRATE JUDGE

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