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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JOHN MONTESANTI,

Plaintiff,

v.

NATIONSTAR MORTGAGE LLC 

D/B/A MR. COOPER,

Defendant.

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Civil Action No. 3:22-CV-0688-X

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant Nationstar Mortgage LLC (“Nationstar”) motion 

for summary judgment against plaintiff John Montesanti. [Doc. 18]. For the 

reasons below, the Court GRANTS the motion.

I. Factual Background

This case concerns a dispute between Nationstar and Montesanti regarding 

the servicing of Montesanti’s mortgage loan. In 1998, Montesanti obtained a 

refinanced mortgage loan (the “Loan”) from Chase Bank, and in 2019, Nationstar 

began servicing the Loan. After Nationstar began servicing the Loan, it reached out 

to Montesanti about refinancing the Loan. Montesanti alleges that he consistently 

declined Nationstar’s refinancing suggestions, but Nationstar continued to call him. 

At some point, Montesanti grew so frustrated with the phone calls that he filed suit 

against Nationstar. After the commencement of that litigation, Nationstar began 

sending his monthly mortgage statements to his counsel. 

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In October of 2021, Montesanti made a request for information from 

Nationstar requesting a copy of each monthly billing statement issued from 

September 1, 2020 to October of 2021—a total of fourteen statements. But according 

to Montesanti, Nationstar “only provided mortgage statements for September 2021, 

October 2021, and November 2021.”1

On January 7, 2022, Nationstar sent Montesanti’s counsel an “Escrow Review 

Statement” that indicated he was entitled to an “escrow surplus check” in the amount 

of $409.09.

2 However, he alleges that he never received the escrow surplus check.

Montesanti filed the instant suit because, he argues, the alleged failure to 

provide mortgage statements and the alleged failure to issue the escrow surplus check

violated the Real Estate Settlement Procedures Act (“RESPA”). Specifically, 

Montesanti brings two claims against Nationstar. The first claim is for a violation 

of 12 C.F.R. Section 1024.36(d) of the implementing regulations of RESPA, which

requires a mortgage servicer to respond to a borrower’s request for information by 

providing the borrower with the requested information within 30 days.

3 The second 

claim is for a violation of 12 C.F.R. Section 1024.17(f)(2)(i) of RESPA’s implementing 

regulations, which requires a mortgage servicer to refund an escrow surplus to the 

borrower within 30 days from the date of the escrow analysis.4 Nationstar now 

1 Doc. 1 at 4.

2 Id.

3 Id. at 6; see 12 U.S.C. § 2601.

4 Id. at 6–7. 

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moves for summary judgment, arguing that neither the facts nor the law support 

Montesanti’s claims.

II. Legal Standard

District courts can grant summary judgment only if the movant shows that 

“there is no genuine dispute as to any material fact and the movant is entitled to 

judgment as a matter of law.”5 A dispute “is genuine if the evidence is sufficient for 

a reasonable jury to return a verdict for the nonmoving party.”6 

III. Analysis

Following Nationstar’s motion for summary judgment, Montesanti conceded 

that there is no private right of action for violations of the escrow payment regulation 

(Section 1024.17(f)(2)(i)), so he withdraws this claim.7 Therefore, the Court will only 

address the Section 1024.36(d) claim regarding the procedures and timeframes for a 

loan servicer to respond to a borrower inquiry.8 

There are two summary judgment arguments on this claim. Nationstar first 

argues that it sent Montesanti all the required information and, if it didn’t, it was 

excused as duplicative of what Nationstar had already sent him. Nationstar’s 

second summary judgment argument is that Montesanti has no evidence of damages. 

The Court assumes, without deciding that, that Nationstar did not fully comply with 

5 FED. R. CIV. PROC. 56(a).

6 Goodson v. City of Corpus Christi, 202 F.3d 730, 735 (5th Cir. 2000) (cleaned up).

7 Doc. 24 at 11.

8 12 C.F.R. § 1024.36.

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Montesanti’s request, but the Court ultimately agrees with Nationstar that 

Montesanti has no evidence of damages.

Neither party disputes that RESPA requires plaintiffs to plead and prove 

actual damages from an alleged violation. Instead, they focus their arguments on 

the sufficiency of the alleged damages. Nationstar alleges that Montesanti provides 

no evidence to demonstrate how he suffered damages from the fact that it provided

only three of the fourteen requested monthly statements. 

Montesanti responds that he suffered three types of damages because of 

Nationstar’s failure to provide the other eleven monthly statements. First, he 

argues he is owed monetary damages because he was deprived of escrow surplus 

funds and was unfairly assessed convenience fees when paying through Nationstar’s 

online payment portal. Second, Montesanti alleges that he suffered medical and 

mental anguish damages. Third, he alleges that he should receive statutory 

damages.

Regarding monetary damages related to the escrow surplus funds and the 

convenience fees, Nationstar provides the Court with compelling evidence that it sent 

Montesanti the escrow surplus check, 9 and Montesanti does not dispute this.

10 

Therefore, the remaining question involves the convenience fees. Nationstar argues 

that Montesanti provided no evidence to explain “the unfair assessment of 

9 Doc. 18 at 180.

10 Relatedly, this information also led Montesanti to concede his earlier claim regarding the 

escrow payment.

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‘convenience fees’ that Plaintiff was forced to pay after Defendant restricted 

Plaintiff’s access to Defendant’s online payment portal.”

11 Nationstar provides the

Court with all of the statements it sent to Montesanti, each of which included the 

following language: “ONLINE PAYEMENT. Allows you to sign into your account 

anytime to make a payment. There is no charge for this service.”12 Regardless, 

Nationstar argues that Montesanti entirely fails to connect the convenience fees to 

the RESPA claim, and the Court agrees.

Regarding the mental anguish and medical damages, Montesanti alleges that 

Nationstar’s “conduct caused [him] perpetual stress, anxiety, and mental anguish, 

which worsened and/or exacerbated [his] existing medical conditions.”13 Montesanti 

does not direct the Court to any binding authority that deals with recovering 

emotional distress damages under RESPA. Nonetheless, despite splits within the 

district courts of the Northern District of Texas, even if “emotional damages are 

recoverable under RESPA,” Montesanti fails that marshal evidence of them.14 A 

plaintiff must present “direct evidence of the nature, duration, or severity of their 

mental anguish, thus establishing a substantial disruption in the plaintiffs’ daily 

routine, or evidence of a high degree of mental pain and distress that is more than 

11 Doc. 18 at 9–10.

12 Id. at 119.

13 Doc. 24 at 9–10.

14 Anderson v. Wells Fargo Bank, N.A., No. 3:16-CV-2514-N, 2018 WL 3426269, at *11 (N.D. 

Tex. July 13, 2018) (Godbey, J.); but see Steele v. Quantum Servicing Corp., No. 3:12-CV-2897-L, 2013 

WL 3196544, at *7 (N.D. Tex. June 25, 2013) (Lindsay, J.) (“The court therefore determines that 

mental anguish damages are not recoverable under RESPA and do not satisfy the requirement that 

Plaintiffs must have suffered actual damages.”).

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mere worry, anxiety, vexation, embarrassment, or anger.15 To meet this evidentiary

standard, Montesanti provides what he describes as “nearly 200 pages of medical 

records to support his medical damages claim,”16 and an answer to Nationstar’s 

Interrogatory No. 3, which reads:

With respect to actual damages, Plaintiff states that Defendant’s 

chronic servicing errors have led Plaintiff to reasonably fear that 

Defendant will erroneously deem the Loan in default, which may 

ultimately result in an erroneous foreclosure action against Plaintiff and 

the Property. Defendant’s omissions have caused Plaintiff

unnecessary stress, anxiety, and mental anguish, which have worsened 

and/or exacerbated Plaintiff's existing medical conditions.

17

This response simply contains conclusory statements, and does not detail the 

nature, duration, and severity of the mental anguish as required. Montesanti fails 

to provide any evidence for the Court to see a substantial disruption to his daily 

routine, or evidence of a high degree of mental pain and distress that is more than 

mere worry, anxiety, vexation, embarrassment, or anger. The most detail he 

provides is that Nationstar might make a future, separate mistake by foreclosing on 

his home. And it is that hypothetical, second mistake Montesanti fears. 

Conclusory fears of hypothetical future mistakes cannot overcome summary 

judgment.

Regarding the medical records, Montesanti states that he provided Nationstar 

with “nearly 200 pages of medical records,” but Montesanti does not provide any of 

15 Geoffrion v. Nationstar Mortg. LLC, 182 F. Supp. 3d 648, 665 (E.D. Tex. 2016).

16 Doc. 24 at 10.

17 Doc. 24-5 at 4.

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these medical records to the Court.18 It takes record evidence to raise a fact 

dispute. Montesanti has brought nothing to the Court.

Finally, regarding statutory damages, a court may award up to $2,000 if the

defendant engaged in a “pattern or practice of noncompliance.”19 “Because Section 

2605(f)(1)(B) does not specify what constitutes a pattern or practice of noncompliance

with RESPA, courts have interpreted the phrase in accordance with the usual 

meaning of the words to mean a standard or routine way of operating.”20 Montesanti 

presents no evidence of Nationstar engaging in a pattern or practice of 

noncompliance. Under these interpretive guidelines, the Court cannot say as a 

matter of law, based on the summary judgment record, that Montesanti has 

demonstrated a pattern or practice of RESPA noncompliance. 

IV. Conclusion

Based on the evidence before it, and for the foregoing reasons, the Court finds 

that there is no genuine dispute as to any material fact and, accordingly, the Court

GRANTS the motion for summary judgment. A separate final judgment will follow.

18 Doc. 24 at 10.

19 12 U.S.C. § 2605(f)(1)(B).

20 Anderson, 2018 WL 3426269, at *12 (cleaned up).

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IT IS SO ORDERED this 31st day of May 2023.

____________________________________

BRANTLEY STARR

UNITED STATES DISTRICT JUDGE

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