Wagner v. EMC Mortgage Corporation

The Fifth District California Court of Appeal held that the Notice of Servicing Transfer Requirements of RESPA and Regulation X were violated when the notice was mailed to the address shown on the note and deed of trust and not to the current address of the borrower. The Court noted the provisions of RESPA and Reg. X do not define the terms .notify. or .notice. and stated a servicer must exercise reasonable care and diligence in determining the correct address of the borrower when mailing a notice of transfer. The Court also held that actual damages recoverable under RESPA are not limited to claims for wrongful foreclosure. An alleged violation based upon separate and distinct wrongful acts a part from the foreclosure may result, if proven, in an award of actual damages. A recovery of actual damages is not dependent upon proving the foreclosure was wrongful.