ORDER

LARRY R. HICKS, UNITED STATES DISTRICT JUDGE

This is a breach of contract action arising from an alleged residential loan modification agreement between plaintiff Leslie J. Shaw ("Shaw") and defendant CitiMortgage, Inc. ("CMI"). Shaw alleges that in mid-2011, the parties executed a loan modification agreement on his residential home loan, but CMI breached the agreement prompting Shaw to stop making payments on his modified loan. Shaw then fell into default and CMI initiated non judicial foreclosure proceedings in early 2013.

On July 26, 2013, Shaw filed a complaint against CMI and defendant Northwest Trustee Services, Inc. ("NTS"), the trustee identified on the recorded notice of default. ECF No. 1, Exhibit A, p. 8-19. On April 3, 2014, Shaw filed an amended complaint adding defendant Bank of New York Mellon ("BNY"), as trustee for SASCO Fund 2003-37A, as a defendant to this action. ECF No. 52. Subsequently, on August 25, 2014, Shaw filed a second amended complaint against defendants alleging eight causes of action: (1) declaratory relief against defendant BNY; (2) declaratory relief against defendant CMI; (3) breach of contract; (4) breach of the implied covenants of good faith and fair dealing; (5) fraudulent misrepresentation and concealment; (6) negligent misrepresentation; (7) interference with prospective economic advantage; and (8) violation of the Real Estate Settlement Procedures Act ("RESPA"). ECF No. 109.

On January 14, 2015, the court granted defendant NTS' motion to dismiss (ECF No. 110) and dismissed NTS as a defendant in this action. ECF No. 124. Three weeks later, on February 5, 2015, the court granted defendants BNY and CMI's motion to dismiss (ECF No. 113). ECF No. 128. In that order, the court dismissed BNY as a defendant and dismissed Shaw's fifth cause of action for fraudulent misrepresentation and sixth cause of action for negligent misrepresentation. Id.

A bench trial was held on Shaw's remaining claims1 against sole-remaining defendant CMI from May 3 through May 5, 2016. See ECF Nos. 203-05. The court, having heard the testimony of all witnesses at trial2 and having considered all exhibits accepted into evidence, renders the following findings of fact and conclusions of law:3

I. Findings of Fact

II. Conclusions of Law

In his second amended complaint, Shaw has alleged five causes of action against CMI that are currently before the court: declaratory relief, breach of contract, breach of the implied covenants of good faith and fair dealing, interference with prospective economic advantage, and violation of the Real Estate Settlement Procedures Act. ECF No. 109. Shaw has the burden of proof on all his claims and must prove each claim by a preponderance of the evidence. See, e.g., Cal. State Bd. of Equalization v. Renovizor's Inc., 282 F.3d 1233 (9th Cir.2002) (stating the basic premise that civil claims must be proven by a preponderance of the evidence). Along with contract and tort damages, Shaw also seeks punitive damages for CMI's conduct in this action. See ECF No. 109. In order to be eligible for an award of punitive damages, Shaw must prove by clear and convincing evidence that CMI engaged in oppression, fraud, or malice. See NRS § 42.005(1). The court addresses each of Shaw's remaining causes of action below.

A. Declaratory Relief

Pursuant to Section 2201 of the Declaratory Judgment Act, "any court of the United States ... may declare the rights and other legal relations of any interested party seeking such declaration." 28 U.S.C. § 2201. Further "[a]ny such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such." Id. In his claim for declaratory relief, Shaw seeks a declaration from the court that the May 2011 Modification Agreement was a fully executed, valid, and binding loan modification agreement between the parties and that such agreement was, pursuant to its terms, effective May 1, 2011. See ECF No. 109. Shaw also seeks an order from the court declaring the parties' obligations and financial relationship under that agreement. Id.

The existence of a contract is a question of law. May v. Anderson, 121 Nev. 668, 119 P.3d 1254, 1257 (2005); Kabil Developments Corp. v. Mignot, 279 Or. 151, 566 P.2d 505, 577 (1977). "Formation of a valid contract requires that there be a meeting of the minds as evidenced by a manifestation of mutual intent to contract." Ridenour v. Bank of Am., N.A., 23 F.Supp.3d 1201, 1208 (D.Idaho 2014). This manifestation can take the form of an offer by one party and acceptance by the other. Id.; see also Erection Co. v. W & W Steel, LLC, 2011 WL 5008325, at *7-8, 2011 U.S. Dist LEXIS 121581, at *19 (D.Or.2011) (citing Ken Hood Construction Co. v. Pacific Coast Construction, Inc., 201 Or.App. 568, 120 P.3d 6 (2005) ("Manifestation of mutual assent ordinarily occurs through an offer or proposal by one party followed by acceptance of the other party."); Integrated Storage Consulting Servs. v. NetApp, Inc., 2013 WL 3974537, at *6, 2013 U.S. Dist. LEXIS 107705, at *19 (N.D.Cal.2013) ("The formation of a contract is properly shown through evidence of an offer and acceptance of definite terms."). The party asserting the existence of a contract has the burden to establish the contract's existence and its terms. Erection Co., 2011 WL 5008325, at *8, 2011 U.S. Dist. LEXIS 121581, at *20.

Here, the undisputed evidence presented at trial establishes that defendant CMI offered to modify Shaw's residential home loan in May 2011. CMI sent Shaw a letter written by CMI employee Kim Vukovich along with a copy of the May 2011 Modification Agreement. CMI's letter specifically advised Shaw that he was eligible for a loan modification as outlined by the terms of the enclosed agreement. The letter further advised Shaw that if he accepted the terms of that agreement, he should execute and submit the agreement to CMI. Shaw properly executed, by notarized signature, the May 2011 Modification Agreement and submitted the agreement to CMI on May 18, 2011, pursuant to CMI's instructions. CMI then accepted the executed May 2011 Modification Agreement by booking the terms of the modification into Shaw's electronic mortgage account on May 23, 2011. After that date, Shaw's mortgage account showed that his residential loan had been modified pursuant to the terms of the May 2011 Modification Agreement.

Additionally, on June 30, 2011, after having already booked the May 2011 Modification Agreement into Shaw's mortgage account and having accepted Shaw's first timely made modified payment under the agreement, CMI Vice-President Larry Bauman separately executed, by notarized signature, the May 2011 Modification Agreement on behalf of CMI. CMI then sent a copy of the completed May 2011 Modification Agreement, executed by both parties, to Shaw on August 9, 2011. Moreover, CMI, through its Assistant General Counsel, Dana Ross, and Homeowner Support Specialist Chris Gabbert, recognized both the validity and the legality of the May 2011 Modification Agreement in a separate letter to Shaw sent on August 23, 2011. Finally, it is undisputed that CMI accepted Shaw's timely made modified monthly payments of $3079.30 from June through December 2011.

The court finds that this record of activity is sufficient to establish an offer of a modification by CMI and acceptance of that offer by Shaw. Such conduct establishes the formation of a contract as a matter of law. See Erection Co., 2011 WL 5008325, at *7-8, 2011 U.S. Dist. LEXIS 121581, at *19. Further, this record of activity unequivocally established "a manifestation of mutual intent" between the parties to modify Shaw's residential home loan. Ridenour, 23 F.Supp.3d at 1208. Therefore, the court finds that the undisputed evidence in this action establishes that the parties executed a valid and binding loan modification agreement known as the May 2011 Modification Agreement that defines the financial relationship, duties, and obligations between Shaw and CMI, the terms of which are outlined in the agreement. See Pl. Trial Ex. 6, P00016-20. The court makes this finding concerning the formation and validity of the May 2011 Modification Agreement nunc pro tunc.

As the court has found that the May 2011 Modification Agreement is a valid contract between the parties, the court finds that due to the long history of this action it is necessary to define the obligations and financial relationship of the parties under the May 2011 Modification Agreement and going forward from this order. In that regard, the court makes these additional findings. First, the modification of Shaw's residential loan pursuant to the May 2011 Modification Agreement became effective May 1, 2011. See Pl. Trial Ex. 6, P00017, Section 4. Second, pursuant to the contract, Shaw's modified monthly payments for the first two years of the agreement were set at $3,079.30, with the first payment having been due on June 1, 2011. Id. at P00018, Section 4(C). It is undisputed that Shaw timely made modified monthly payments under the May 2011 Modification Agreement from June through December 2011, for a total of seven (7) modified payments. As addressed in depth below when analyzing Shaw's breach of contract claim, the court finds that Shaw's breach of the May 2011 Modification Agreement — by withholding his modified monthly mortgage payments beginning in January 2012 — was reasonable and excused because of CMI's anticipatory repudiation of the May 2011 Modification Agreement in December 2011. See Infra Section II(B)(ii). Accordingly, the court considers the time period from January 2012, through the date of this order tolled and excluded under the agreement. The court finds that this tolling of the modification agreement is equitable based on CMI's continued refusal to recognize the existence of the May 2011 Modification Agreement until the filing of the pretrial order in late 2015, four-and-a-half years after the May 2011 Modification Agreement was executed by both parties. Therefore, going forward from this order, Shaw's modified monthly payment under the May 2011 Modification Agreement remains $3,079.30 for the next seventeen (17) months, after which the monthly payment will increase pursuant to the staggered payment plan outlined in the agreement with the date the staggered payments begin commencing from the date of this order and excluding the tolled period. See Pl. Trial Ex. 6, P00018, Section 4(C). Similarly, the maturity date of Shaw's modified loan is extended from November 1, 2033, until approximately August 1, 2038, to account for the time tolled in this action.

Third, as specified in the May 2011 Modification Agreement, Shaw's principal balance on the loan was set at $910,110.34, $85,777.89 of which was deferred from interest charges and is due as a balloon payment at the end of Shaw's loan. See Pl. Trial Ex. 6, P00017-18, Section 4(B) & 4(C). Since that time, Shaw made seven modified payments of $3,079.30 under the agreement and reduced the principal balance on his residential loan. According to Shaw's April 2016 mortgage statement admitted at trial, his current remaining principal balance under his loan is $891,467.07. Pl. Trial Ex. 57. Thus, going forward, the court finds that the remaining principal balance on Shaw's loan is $891,467.07, and that Shaw's mortgage account with CMI should reflect this amount.

Fourth, the court recognizes that beginning in January 2012, CMI advanced $43,100.45 in escrow funds to Shaw's mortgage account in order to protect its security interest in the McFaul Court property during the parties' dispute and this litigation. See Pl. Trial Ex. 57; Def. Trial Ex. 513-B. These advanced escrow funds included quarterly property tax payments on the McFaul Court property, monthly Homeowner's Insurance premiums, and other escrow expenses for which Shaw was responsible under the terms of his original residential loan, first deed of trust, and the May 2011 Modification Agreement. CMI made all escrow payments on Shaw's account since January 2012, even though Shaw's escrow account had insufficient funds to make these payments. Though it was in CMI's interest to advance these funds in order to protect its security interest in the McFaul Court property, Shaw directly benefited from CMI's conduct as no property tax liens were recorded on the McFaul Court property during the parties' dispute and his Homeowner's Insurance policy did not lapse. Accordingly, the court finds that in the interest of equity between the parties, Shaw is liable for, and CMI is entitled to recover from Shaw, the $43,100.45 in advanced escrow charges. Therefore, going forward from this order, Shaw's mortgage account should reflect that he continues to owe $43,100.45 to CMI in advanced escrow charges.

Finally, the court finds that any other fees charged by CMI against Shaw's mortgage account since January 2012, are invalid and improper. As the court has found the time between January 2012 and this order is tolled and excluded from the May 2011 Modification Agreement, all interest charges, late payment fees, and any other fees or past due amounts charged against Shaw under either his original residential loan or the May 2011 Modification Agreement are excluded. The court's finding specifically extends to and includes the $221,350.89 in accrued interest, $189.90 in fees, and $7,963.83 in past-due fees and late charges reflected on Shaw's April 2016 mortgage statement, as well as any and all other expenses and fees that have accumulated since January 2012, except for the aforementioned advanced escrow charges. See Pl. Trial Ex. 57. Accordingly, the court shall issue judgment on Shaw's claim for declaratory relief as outlined above.

B. Breach of Contract

To prevail on a breach of contract claim, a plaintiff must prove: (1) the existence of a valid contract; (2) a breach of that contract by the defendant; and (3) damages resulting from defendant's breach. Saini v. Int'l Game Tech., 434 F.Supp.2d 913, 919-20 (D.Nev.2006); Brown v. Kinross Gold U.S.A., Inc., 531 F.Supp.2d 1234, 1240 (D.Nev.2008). A breach of contract can occur in one of two ways. See Nev. Power Co. v. Calpine Corp., 2006 WL 1582101, at *8, 2006 U.S. Dist. LEXIS 36135, at *22 (D.Nev.2006). The first is an actual breach of the specific terms and obligations of the contract. Brown, 531 F.Supp.2d at 1240. The second is an anticipatory breach, or repudiation, of the contract. Nev. Power Co., 2006 WL 1582101, at *8-9, 2006 U.S. Dist. LEXIS 36135, at *23.

In this action, Shaw has alleged both an actual breach of contract claim and an anticipatory breach of contract claim against CMI. See ECF No. 109; ECF No. 168. As each type of breach permits different relief and requires proof of separate and distinct elements, the court shall evaluate CMI's conduct for each type of breach separately.

i. Actual Breach

As addressed above, the court has found that the May 2011 Modification Agreement constitutes a valid and binding contract. Supra Section II(A). Thus, the remaining issues for the court to determine are (1) whether CMI breached the terms of the May 2011 Modification Agreement, and (2) if there was a breach of that agreement, the damages Shaw incurred as a result of that breach, if any. See Saini, 434 F.Supp.2d at 920.

Under the terms of the May 2011 Modification Agreement, CMI had a duty to correctly book and apply all of Shaw's timely made modified payments throughout the life of the modified loan. Further, CMI had a duty to keep correct records of Shaw's mortgage account so that his account was not improperly placed in default. However, in direct contravention of its obligations and duties under the May 2011 Modification Agreement, CMI unbooked the modified loan terms from Shaw's electronic mortgage account, unbooked Shaw's timely made mortgage payments for the months of June and July 2011; placed Shaw's account into default at a time that he was current on all his mortgage obligations under the express terms of the May 2011 Modification Agreement; and refused to book Shaw's timely made mortgage payment for the month of August 2011. Further, CMI sent Shaw collection notices demanding payment on over $30,000.00 in past due amounts in both July and August 2011, even though pursuant to the terms of the May 2011 Modification Agreement, all amounts that were previously past due (including the unpaid monthly payments from October 2010, through February 2011, as well as the difference between Shaw's prior monthly payments and the modified payments under the trial modification period) were specifically included in the new principal balance of $910,110.34, and thus, there was no past due balance on Shaw's mortgage account at the time.

The court finds that CMI's undisputed conduct was a direct breach of the May 2011 Modification Agreement. Further, the court finds that CMI's unilateral actions were made without justification. As recognized by CMI, there was nothing legally deficient with the May 2011 Modification Agreement. Pl. Trial Ex. 21, P00060. Thus, CMI was not justified in unbooking both the modification's terms and Shaw's monthly payments from his electronic mortgage account simply because the May 2011 Modification Agreement lacked a payment date for the balloon payment.

As the court has found that CMI breached the May 2011 Modification Agreement, the court now turns to the issue of damages. Damages for a breach of contract claim are limited to those specifically outlined in the contract, if any, and those expectation damages sufficient to put the non-breaching party in the position it would have been in had the breach not occurred. See, e.g., Keife v. Metro. Life Ins. Co., 931 F.Supp.2d 1100, 1108-09 (D.Nev.2013); Midwest Precision Services, Inc. v. PTM Indus. Corp., 887 F.2d 1128, 1136-37 (1st Cir.1989). Here, the May 2011 Modification Agreement does not set forth any damages for a breach of that agreement by CMI. See Pl. Trial Ex. 6, P00016-20. As such, Shaw's damages claim is limited to being placed in the same position under the May 2011 Modification Agreement as if the agreement had not been breached by CMI, which is a modification of his residential loan under the terms of that agreement. Shaw has already achieved this position as addressed above in the court's analysis of Shaw's declaratory relief claim. See Supra Section II(A). Further, it is undisputed that after CMI breached the May 2011 Modification Agreement it resolved and cured its breach of that agreement on August 15, 2011, when it rebooked the modification terms and Shaw's payments into his electronic mortgage account. See Def. Trial Ex. 510-B, CMI000064. At the same time, CMI removed Shaw's account from default and corrected the delinquent payment reports it had made to the various credit reporting agencies during its breach. Finally, CMI waived all late fees and other charges that it had charged to Shaw's account during its breach. Thus, Shaw was already placed in the same position under the May 2011 Modification Agreement in late August 2011, as if CMI's breach had not occurred. And, Shaw has failed to prove any other consequential damages resulting from CMI's one-month breach of the May 2011 Modification Agreement. Accordingly, the court finds that Shaw is not entitled to contract damages for CMI's breach.

ii. Anticipatory Breach

An anticipatory breach is a breach of a contract that occurs when one party to the contract, without justification and prior to a breach by the other party, makes a statement or engages in conduct indicating that it will not or cannot substantially perform its duties under the contract. Nev. Power Co., 2006 WL 1582101, at *10, 2006 U.S. Dist. LEXIS 36135, at *28. An anticipatory breach, or repudiation, of a contract may be express or implied. Id. An express repudiation occurs when one party demonstrates "a definite unequivocal and absolute intent not to perform a substantial portion of the contract." Kahle v. Kostiner, 85 Nev. 355, 455 P.2d 42, 44 (1969); see also Stratosphere Litigation, L.L.C. v. Grand Casinos, 298 F.3d 1137, 1147 (9th Cir.2002) (holding that an "[a]nticipatory repudiation occurs when a party through conduct or language makes a clear, positive and unequivocal declaration of an intent not to perform."). An implied repudiation occurs when one party acts in such a manner as to make its future performance under the contract impossible. Covington Bros. v. Valley Plastering, Inc., 93 Nev. 355, 566 P.2d 814, 817 (1977). If one party anticipatorily breaches the contract, a repudiation of the contract has occurred and the non-breaching party is excused from performing its obligations under the contract. Kahle, 455 P.2d at 44; see also Cleverley v. Ballantyne, 2013 U.S. Dist. LEXIS 177416, at *13 (D. Nev. 2013) (stating that an anticipatory repudiation of a contract excuses the necessity for the non-breaching party to tender performance).

The court has reviewed the evidence presented at trial and finds that CMI expressly repudiated the May 2011 Modification Agreement. The evidence in this action establishes that CMI made repeated, unambiguous, and unequivocal statements to Shaw that the May 2011 Modification Agreement was not a binding modification agreement between the parties, that Shaw did not have any modification agreement with CMI, and that CMI would not recognize any modification agreement until Shaw executed the July 2011 Modification Agreement. CMI began making these statements to Shaw in July 2011, when Chris Gabbert, Shaw's Homeowner Support Specialist, told Shaw that CMI would only grant him a modification of his loan if he signed the July 2011 Modification Agreement. And CMI continued making similar statements about the need for Shaw to execute the July 2011 Modification Agreement even after CMI had rebooked the May 2011 Modification Agreement in August 2011. For example, Shaw's next Homeowner Support Specialist, Jennifer Butler, unequivocally advised Shaw in December 2011, and repeatedly through early 2012, that he would not have any modification of his residential loan unless he signed the July 2011 Modification Agreement and that this decision was confirmed by CMI's Loss Mitigation and underwriting departments. Although Gabbert's statement concerning the validity of the May 2011 Modification Agreement was prior to CMI curing its breach in August 2011, Butler's statements regarding the validity of the May 2011 Modification Agreement occurred in December 2011, over four months after CMI rebooked that agreement. And still no explanation was ever provided to Shaw for CMI's change in position between August 23, 2011, and early December 2011.

Based on this conduct, especially all conduct that occurred after CMI's "resolution" of Shaw's mortgage account in August 2011, the court finds that CMI expressly repudiated the May 2011 Modification Agreement. CMI's conduct constituted "a definite unequivocal and absolute intent not to perform" under the contract. Kahle, 455 P.2d at 44. In fact, this court cannot imagine a more unequivocal and absolute intent to not perform under the May 2011 Modification Agreement than stating that the agreement executed by the parties simply did not exist, and would not be honored. Moreover, as addressed above in Shaw's actual breach of contract claim, the court finds that CMI was not justified in its conduct simply because the May 2011 Modification Agreement did not contain a specific due date for the balloon payment. See Supra Section II(B)(i). Therefore, the court finds that because CMI repudiated the May 2011 Modification Agreement, Shaw was excused from his performance under that agreement beginning in January 2012. Further, the court finds that Shaw was reasonable in withholding his payments after being told by Butler in December 2011, that the May 2011 Modification Agreement was not in force and that there would be no modification unless and until he executed the July 2011 Modification Agreement based on CMI's prior conduct in both breaching and repudiating the contract in July 2011, and its history of inconsistent and contradictory statements. Thus, because Shaw's non-performance under the May 2011 Modification Agreement was excused, all interest, late fees, and past due charges accrued on Shaw's loan since January 2012, are not recoverable by CMI and the court finds that these charges shall be excluded from Shaw's mortgage account.13

C. Breach of the Implied Covenants of Good Faith and Fair Dealing

Under Nevada law, "[e]very contract imposes upon each party a duty of good faith and fair dealing in its performance and execution." A.C. Shaw Constr. v. Washoe Cty., 105 Nev. 913, 784 P.2d 9, 9 (1989) (quoting Restatement (Second) of Contracts § 205); see also Nelson v. Heer, 123 Nev. 217, 163 P.3d 420, 427 (2007) ("It is well established that all contracts impose upon the parties an implied covenant of good faith and fair dealing, which prohibits arbitrary or unfair actions by one party that work to the disadvantage of the other."). "The implied covenants of good faith and fair dealing impose a burden that requires each party to a contract to `refrain from doing anything to injure the right of the other to receive the benefits of the agreement.'" Integrated Storage Consulting Servs., 2013 WL 3974537, at *7, 2013 U.S. Dist. LEXIS 107705, at *23 (quoting San Jose Prod. Credit Ass'n v. Old Republic Life Ins. Co., 723 F.2d 700, 703 (9th Cir.1984).

To establish a claim for breach of the implied covenants of good faith and fair dealing, a plaintiff must prove: (1) the existence of a contract between the parties; (2) that defendant breached its duty of good faith and fair dealing by acting in a manner unfaithful to the purpose of the contract; and (3) the plaintiff's justified expectations under the contract were denied. See Perry v. Jordan, 111 Nev. 943, 900 P.2d 335, 338 (1995) (citing Hilton Hotels Corp. v. Butch Lewis Prod. Inc., 107 Nev. 226, 808 P.2d 919, 922-23 (1991). Generally, the remedy for a breach of the implied covenants of good faith and fair dealing is limited to contractual remedies. Mundy v. Household Fin. Corp., 885 F.2d 542, 544 (9th Cir.1989); see also Nev. Power Co., 2006 WL 1582101, at *9, 2006 U.S. Dist. LEXIS 36135, at *26 ("As a contract concept, breach of duty leads to the imposition of contract damages determined by the nature of the breach and contract principles."). However, in limited circumstances, a breach of the implied covenants can give rise to tort liability. See, e.g., State v. Sutton, 120 Nev. 972, 103 P.3d 8, 19 (2004) (holding that in special circumstances, a breach of the implied covenants of good faith and fair dealing can give rise to tort liability).

In his second amended complaint, Shaw has alleged a breach of the implied covenants of good faith and fair dealing arising from CMI's repeated refusal to accept the May 2011 Modification Agreement and continued demands for both payment on past due amounts and the execution of the July 2011 Modification Agreement. ECF No. 109. As part of this claim, Shaw has requested both contract and tort damages. Id. Because Shaw is requesting both contract and tort damages, the court shall evaluate Shaw's breach of the implied covenants claims separately for both a contractual and tortious breach.

i. Contractual Breach of Implied Covenants

A contractual breach of the implied covenants of good faith and fair dealing occurs "[w]here the terms of a contract are literally complied with but one party to the contract deliberately countervenes the intention and spirit of the contract." Hilton Hotels Corp., 808 P.2d at 923-24. "Establishing such a breach of the implied covenant depends upon the `nature and purposes of the underlying contract and the legitimate expectations of the parties arising from the contract.'" Integrated Storage Consulting Servs., 2013 WL 3974537, at *7, 2013 U.S. Dist. LEXIS 107705, at *23 (quoting Mundy, 885 F.2d at 544) As such, a breach of the implied covenants of good faith and fair dealing is "limited to assuring compliance with the express terms of the contract, and cannot be extended to create obligations not contemplated by the contract." McKnight v. Torres, 563 F.3d 890, 893 (9th Cir.2009)

At trial, Shaw testified that under the terms of the May 2011 Modification Agreement he expected to receive a modification of his loan as outlined by the express terms of that agreement and that his mortgage account would no longer be in default as a result of the modification. However, after the parties executed the May 2011 Modification Agreement, CMI engaged in a pattern of conduct specifically designed to thwart the purpose of the contract and Shaw's reasonable expectations14 of a modification of his residential home loan.

Initially, the court notes that some of CMI's conduct which Shaw contends establishes a breach of the implied covenants cannot support his claim as a matter of law. It is well established that a claim alleging breach of the implied covenants of good faith and fair dealing cannot be based on the same conduct establishing a separately pled breach of contract claim. Daly v. United Healthcare Ins. Co., 2010 WL 4510911, at *2, 2010 U.S. Dist. LEXIS 116048, at *4 (N.D.Cal.2010); see also Guz v. Bechtel Nat. Inc., 24 Cal.4th 317, 100 Cal.Rptr.2d 352, 8 P.3d 1089 (2010) (holding that when both a breach of contract and breach of implied covenants claim are based on the same conduct, the implied covenants claim is superfluous). Thus, CMI's conduct that was a direct actual breach of the May 2011 Modification Agreement in July 2011, cannot support Shaw's implied covenants claim. As such, the court cannot, and shall not, consider CMI's conduct in unbooking the May 2011 Modification Agreement and all payments made under that agreement from Shaw's electronic mortgage account in determining whether CMI breached the implied covenants.

Nonetheless, the court finds that Shaw has proven by a preponderance of the evidence that CMI breached the implied covenants of good faith and fair dealing. First, it is undisputed that within two weeks after CMI executed the May 2011 Modification Agreement, CMI sent Shaw an entirely new modification agreement, the July 2011 Modification Agreement. This new agreement was identified by CMI employee Juan Mayorga as a "corrected" agreement that had to be signed by Shaw before CMI would modify Shaw's residential loan even though it contained new material terms. No explanation was ever provided to Shaw for why the new modification agreement had been sent. Even Mayorga, the CMI employee who sent the July 2011 Modification Agreement, was unable to inform Shaw as to why the new agreement had been drafted. Shaw was given similar unresponsive answers from Chris Gabbert, who also directed Shaw to sign the new agreement if he wanted a loan modification. The court finds that within the context of the confusing signals to Shaw, CMI's conduct of executing a loan modification agreement and then insisting upon a new agreement with materially different terms without explanation to Shaw "deliberately contravenes the intention and spirit" of the properly executed and valid May 2011 Modification Agreement. Hilton Hotels Corp., 808 P.2d at 923-24. CMI's conduct was completely unfaithful to the purpose of the May 2011 Modification Agreement which was to provide Shaw with a modification of his residential home loan.15

Further, CMI engaged in a similar pattern of conduct after resolving Shaw's account in August 2011. For example, Shaw timely made all modified monthly payments of $3,079.30 under the May 2011 Modification Agreement through December 2011. Def. Trial Ex. 510-B, CMI000063-64. However, during that same time, Shaw received written collection notices from CMI demanding payment on non-existent past due amounts. Further, after his account was transferred to Jennifer Butler in December 2011, CMI reversed its position on the May 2011 Modification Agreement and once again claimed that Shaw did not have any modification with CMI because he had not yet signed the July 2011 Modification Agreement. Moreover, even after being informed that CMI had previously determined that there was nothing legally deficient in the May 2011 Modification Agreement, CMI's Loss Mitigation and underwriting departments confirmed that Shaw did not have a loan modification with CMI in December 2011, and would not have a recognized loan modification with CMI unless and until he signed the July 2011 Modification Agreement. The court finds that this post August 2011 conduct likewise "deliberately contravenes the intention and spirit" of the May 2011 Modification Agreement. Hilton Hotel Corp., 808 P.2d at 923-24. Based on all of CMI's conduct in this action, the court finds that CMI breached the implied covenants of good faith and fair dealing.

As the court has found that CMI breached the implied covenants of good faith and fair dealing, the court now turns to the issue of damages. Damages under a contractual breach of the implied covenants are limited to regular contract damages. Mundy, 885 F.2d at 544. As addressed above in the court's analysis of Shaw's actual breach of contract claim, Shaw is not entitled to contract-based damages. See Supra Section II(B)(i). Shaw has already been placed in the position that he would have been under the May 2011 Modification Agreement absent CMI's breach of the implied covenants. Id. Further, Shaw has not proven any other contract damages that could be awarded under this claim. Therefore, the court finds that Shaw is not entitled to any damages for CMI's contractual breach of the implied covenants.

ii. Tortious Breach of Implied Covenants

Generally, a breach of the implied covenants is a contract-based claim. Hilton Hotels Corp., 808 P.2d at 923. However, a breach of the implied covenants can give rise to tort liability when there is a special relationship between the contracting parties. Id. (stating that a tort action for an implied covenants claim requires a special element of reliance or fiduciary duty); see also Sutton, 103 P.3d at 19 (Tort liability for breach of the implied covenants of good faith and fair dealing is appropriate where "the party in the superior or entrusted position has engaged in grievous and perfidious misconduct."); Max Baer Prods., Ltd. v. Riverwood Partners, LLC, 2010 WL 3743926, at *5, 2010 U.S. Dist. LEXIS 100325, at *14 (D.Nev.2010) ("Although every contract contains an implied covenant of good faith and fair dealing, an action in tort for breach of the covenant arises only `in rare and exceptional cases' when there is a special relationship between the victim and tortfeasor."). A special relationship is "characterized by elements of public interest, adhesion, and fiduciary responsibility." Id. Under a tortious breach, "a successful plaintiff is entitled to compensation for all of the natural and probable consequences of the wrong, including injury to the feelings from humiliation, indignity and disgrace to the person." Sutton, 103 P.3d at 19.

Here, the court finds that there is a special relationship between the parties sufficient to support tort liability in this action. First, the parties are in drastically different and unequal bargaining positions. Max Baer Prods., Ltd., 2010 WL 3743926, at *5, 2010 U.S. Dist. LEXIS 100325, at *9 (holding that courts allow tort liability where one party holds "vastly superior bargaining power"). CMI, as the servicer of Shaw's residential loan, held all of the bargaining power as it controlled the decision of whether to offer Shaw a loan modification, as well as the terms of that agreement. In contrast, Shaw had limited bargaining power as a financially strapped borrower seeking a modification to a loan agreement that he agreed to years earlier and for which CMI held a protected security interest. Although it was in CMI's interest to grant Shaw a modification so that Shaw would continue making payments, CMI was under no obligation to offer Shaw the May 2011 Modification Agreement or any modification agreement at all. Further, the loan modification agreement is an adhesion contract as CMI completely dictated the terms of the modification with no input by Shaw and offered that agreement to Shaw with his only option to agree to or refuse the agreement. The parties' relationship necessarily shares "a special element of reliance" sufficient for the court to find a special relationship between the parties for tort liability. Id. at *5, 2010 U.S. Dist. LEXIS 100325 at *15. In such relationships, courts have routinely recognized that "there is a need to `protect the weak from the insults of the stronger' that is not adequately met by ordinary contract damages." Id.

Further, the same conduct that supports a claim for contractual breach of the implied covenants also supports a claim for tortious breach of the implied covenants. See Supra Section II(C)(i). The court now turns to the issue of compensable damages under this claim. In his complaint, Shaw seeks general tort damages pursuant to NRS § 41.334.16 See ECF No. 109. NRS § 41.334 allows for a party to receive compensation for "loss of reputation, shame, mortification and hurt feelings." Further, under a tortious breach of the implied covenants claim, "a successful plaintiff is entitled to compensation for all of the natural and probable consequences of the wrong, including injury to the feelings from humiliation, indignity and disgrace to the person." Sutton, 103 P.3d at 19.

The court has reviewed all the testimony and documents admitted at trial and finds that Shaw has proven by a preponderance of the evidence that he suffered a loss of reputation, shame, mortification, indignity and disgrace as a direct result of CMI's tortious breach of the implied covenants. Shaw testified that he suffered both a loss in personal and business reputation as a proximate result of CMI's improper collection efforts after executing the May 2011 Modification Agreement. For example, Shaw testified that door hanger collection notices were placed on the door of the McFaul Court property in plain sight and were visible to his neighbors and guests to the property. Further, Shaw testified that he received various e-mails, letters, and comments from former clients and former spouses of former clients. In those various communications, Shaw was chastised and his professional skills as an attorney were questioned as he, himself, was suffering financial difficulties and facing potential foreclosure upon his personal residence. Further, Shaw's prior business partner in his legal practice used Shaw's lack of creditworthiness, as a result of CMI's pending foreclosure, in a separate legal dispute regarding the partnership's assets (which included another property) which eventually led to Shaw leaving the business and starting a new practice in Reno, Nevada. Additionally, Shaw testified that he suffered from increasing feelings of frustration, worthlessness, shame and sleeplessness in not being able to resolve or even confront his financial difficulties because of the dispute with CMI. The court finds that Shaw has proven by a preponderance of the evidence that he suffered a loss of reputation, shame, indignity and disgrace, and other general damages as a proximate cause of CMI's conduct.

As the court has determined that Shaw has proven that he suffered general damages as a result of CMI's conduct, the next significant issue for the court is to quantify Shaw's general damages. A second issue is to determine the time frame for Shaw's damages arising from CMI's tortious conduct. At trial, Shaw presented no evidence related to any monetary figure for his general damages. In fact, the only number offered for Shaw's general damages was presented by Shaw's counsel in closing. In Shaw's closing, Shaw's counsel asked the court to award Shaw damages in the amount of $2,700 per day from the date of the execution of the May 2011 Modification Agreement by both parties through the date of trial for compensation in an amount of approximately $5,000,000.00. However, there is no testimony or evidence to support that number and the $2,700 per day figure has no relation to anything specific in this action.

The court has reviewed the documents and evidence admitted at trial and finds that an appropriate award of compensatory damages to Shaw is $500 per day during the critical time periods from May 23, 2011, through December 31, 2011, subject to tolling from August 23, 2011, to December 7, 2011, during which the May 2011 Modification Agreement was being recognized by CMI; $250 per day during the period commencing in January 2012 (when Shaw discontinued further house payments) through August 2012 (when Shaw vacated the home); and a reduced amount of $100 per day from August 2012 through the close of trial on May 5, 2016.

The court reaches the $500 per day figure based upon the reasonable amount of time spent by Shaw in the many contacts, conversations, and other uneventful communications he had with CMI concerning the properly executed and "not legally deficient" May 2011 Modification Agreement. These uneventful contacts resulted in great stress and frustration to Shaw as well as adverse effects upon Shaw's standing in the community, business reputation and credit worthiness. In support of the damages amount, the court takes judicial notice that the hourly billing rate for an experienced attorney of similar skills as Shaw in this district would have been a minimum of $300 per hour and there is no question that Shaw spent at least one to two hours a day, and on some days much longer, either directly responding to or communicating with CMI and its representatives, or attempting to understand CMI's inconsistent and contradictory positions concerning his mortgage account and loan modification. The court also takes into consideration that any homeowner whose home represented his or her most significant asset and also greatest debt, in this case over $900,000.00, would undergo such frustration, feelings of worthlessness and shame which should be reasonably and fairly compensable at a daily rate of $500.00 per day during this critical time period. Calculating Shaw's damages during this period at a rate of $500 per day, the court finds that Shaw is entitled to compensation in the amount of $57,000.00 ($500 per day for 114 days).

With regard to the period commencing January 2012, when Shaw stopped making his monthly payments, through August 2012, when he voluntarily vacated the McFaul Court property, the court finds that Shaw's decision to terminate payments for lack of reasonable treatment by CMI and to ultimately vacate the house eight months later and move to Reno, Nevada, is reflective in part of the continuation of Shaw's frustration, bitterness and shame imposed upon him by CMI prior to January 2012. Thus the court finds that Shaw is entitled to receive compensation for the harm he suffered during this time period. However, the court finds that Shaw's damages during this period should be adjusted to $250 per day. Calculating Shaw's damages for this period, the court finds that Shaw is entitled to compensation in the amount of $60,750.00 ($250 per day for 243 days).

Finally, with regard to the period commencing in August 2012 through the close of trial on May 5, 2016, the court finds that the tortious conduct inflicted upon Shaw prior to this time continued to cause him to suffer similarly compensable harm at an average rate of $100 per day. The reduction in this amount of compensation is reflective of the fact that Shaw was no longer paying his monthly mortgage payment and was no longer living in the McFaul Court property, although he continued to suffer from the compensable harm previously imposed upon him by CMI as previously set forth. Calculating Shaw's damages for this period, the court finds that Shaw is entitled to compensation in the amount of $122,100.00 ($100.00 per day for 1,221 days).

D. RESPA

The Real Estate Settlement Procedures Act, found at 12 U.S.C. § 2601 et seq., places certain duties and restrictions on mortgage lenders, services, and other entities that deal with residential mortgages. Pertinent to this action is Section 2605 of RESPA which requires a loan servicer, like CMI, to respond to inquires from a borrower. See 12 U.S.C. § 2605(e). Pursuant to Section 2605(e), if a loan servicer receives a "qualified written request from the borrower" for information relating to the servicing of the borrower's loan, "the servicer shall provide a written response" appropriately responding to the borrower's request and providing any requested documentation. 12 U.S.C. § 2605(e)(1)(A) & (2)(C). Similarly, pursuant to Section 2605(k), a loan servicer shall provide "the identity, address, and other relevant contact information about the owner or assignee of the loan" when requested by the borrower. 12 U.S.C. § 2605(k)(1)(D). For purposes of triggering a servicer's duty under RESPA, a Qualified Written Request must (1) be a written communication, and (2) include "the name and account of the borrower," and "a statement of the reasons for the belief of the borrower, to the extent applicable, that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower." 12 U.S.C. § 2605(e)(1)(B)(i)-(ii).

If a servicer receives a Qualified Written Request from a borrower, then the servicer has sixty (60) days to conduct an investigation into the borrower's account, make any appropriate corrections to that account, and respond to the borrower's request "with production of the requested information or an explanation of why the information is unavailable." Pettie v. Saxon Mortg. Servs., 2009 WL 1325947, at *3, 2009 U.S. Dist. LEXIS 4149, at *7 (W.D.Wash.2009); see also 12 U.S.C. § 2605(e)(2). Further, the servicer shall provide the contact information for an employee who can provide assistance to the borrower. 12 U.S.C. § 2605(e)(2). During the servicer's sixty day investigation and response period, a servicer is precluded from providing "information regarding any overdue payment, owed by such borrower and relating to such period or qualified written request, to any consumer reporting agency." 12 U.S.C. § 2605(e)(3). If a servicer fails to comply with its duties under RESPA, the servicer may be liable for (1) any actual damages the borrower suffered as a result of the servicer's failure to comply with its duties, and/or (2) statutory damages not to exceed $2,000.00. 12 U.S.C. § 2605(f).

In his second amended complaint, Shaw has alleged that he sent several Qualified Written Requests to CMI requesting contact information for the owner of his loan and copies of various loan documents, but that CMI failed to respond to his requests in violation of RESPA. ECF No. 109. The initial step for the court under Shaw's RESPA claim is to determine whether Shaw submitted Qualified Written Requests to CMI. At trial, Shaw testified that he requested information from CMI about his mortgage and the owner of his loan immediately after CMI unbooked the May 2011 Modification Agreement and placed his account into default and continued to request this information throughout this litigation. In particular, Shaw alleged that he made the following Qualified Written Requests to CMI: (1) a July 31, 2011 e-mail request to Chris Gabbert; (2) a December 5, 2011 e-mail request to Dana Ross; (3) a January 3, 2012 e-mail request to Ross; (4) a January 20, 2012 formal letter to Ross; (5) a June 20, 2012 e-mail request to Robert Orcutt; (6) a January 29, 2013 formal letter to CMI; and (7) multiple written requests to Gabbert, Jennifer Butler, and Orcutt beginning in the fall of 2011 and continuing until Shaw initiated this litigation. The court shall address each alleged Qualified Written Request below.

To constitute a Qualified Written Request under RESPA, a letter must include the name and account of the borrower as well as a statement of reasons for believing the account is in error. Pettie, 2009 WL 1325947, at *2, 2009 U.S. Dist. LEXIS 4149, at *5. Initially, the court notes that Shaw's generally identified written requests to Gabbert, Butler, and Orcutt beginning in the fall of 2011 are not sufficient to constitute Qualified Written Requests. First, Shaw failed to provide any evidence of the dates of these various communications or what information was requested or included in these communications sufficient for the court to determine whether these communications met the requirements of RESPA. Therefore, the court finds that Shaw has not met his burden to prove these communications were Qualified Written Requests under RESPA.

As to the remaining alleged Qualified Written Requests, the court finds that Shaw did proffer copies of these communications at trial. These admitted exhibits contain sufficient information for the court to determine whether these communications meet the requirements for Qualified Written Requests under RESPA. First, the court has reviewed the July 31, 2011 e-mail request to Gabbert and finds that it does not constitute a Qualified Written Request. Although the e-mail (and all of Shaw's communications) appropriately identified Shaw and his mortgage account, the e-mail does not contain a statement for why Shaw believes that his mortgage account is in error. See Pl. Trial Ex. 15. Rather, the e-mail only complains of CMI's failure to previously identify the current owner of his residential loan. These statements are insufficient to trigger CMI's RESPA duties because they do not mention or discuss his default or mortgage account. See Pettie, 2009 WL 1325947, at *2, 2009 U.S. Dist. LEXIS 4149, at *6 (finding that RESPA "clearly requires that a disputing party give specific `reasons' for claiming that an account it in error."); Banayan v. OneWest Bank F.S.B., 2012 WL 896206, at *5, 2012 U.S. Dist. LEXIS 35301, at *15 (S.D.Cal.2012) (finding that a qualified written request must seek information "relating to the servicing of a loan."). Thus, because this e-mail did not provide any statement of reasons for Shaw's dispute with CMI regarding his mortgage account, the July 31, 2011 e-mail does not constitute a Qualified Written Request. Pettie, 2009 WL 1325947, at *2-3, 2009 U.S. Dist. LEXIS 4149, at *7. Similarly, the court finds that Shaw's June 20, 2012 e-mail to Orcutt likewise did not constitute a Qualified Written Request. That e-mail only complains of Orcutt's failure to provide information about CMI's reinstatement offer and references several telephonic conversations. See Pl. Trial Ex. 36. But, like Shaw's July 31, 2011 e-mail, the June 20, 2012 e-mail does not provide any statement of the reasons for Shaw's dispute with CMI or the ongoing problems with his mortgage account. Thus, as with the July 31, 2011 e-mail to Gabbert, the court finds that Shaw's June 20, 2012 e-mail to Orcutt does not constitute a Qualified Written Request.

As for Shaw's remaining alleged Qualified Written Requests — the December 5, 2011 e-mail; January 3, 2012 e-mail; January 20, 2012 letter to Dana Ross; and the January 29, 2013 formal letter to CMI — the court finds that these document did constitute Qualified Written Requests sufficient to trigger CMI's investigation and response duties under RESPA. In his December 5, 2011 e-mail to Ross, Shaw specifically laid out in detail the parties' dispute over his mortgage account and also requested various documents from CMI including contact information for the current owner of his loan, a copy of the original mortgage note and deed of trust, and copies of any assignment of the mortgage note and deed of trust, if any. See Def. Trial Ex. 512-A. Similarly, the January 3, 2012 e-mail to Ross references CMI's lack of response to the December 5, 2011 e-mail, and again details the parties' dispute including CMI's ongoing collection attempts, and requests relevant loan documents and owner information. Pl. Trial Ex. 24. Likewise, the formal letter Shaw sent to Ross on January 20, 2012, contained similar information about the parties' dispute and requested loan documents and contract information for the owner of his loan. Pl. Trial Ex. 26, P00067-69. Finally, the January 29, 2013 e-mail contained similar dispute information and demanded documentation from CMI. Such communications constitute Qualified Written Requests under RESPA. Pettie, 2009 WL 1325947, at *6, 2009 U.S. Dist. LEXIS 4149, at *6; Banayan v. OneWest Bank F.S.B., 2012 WL 896206, at *6, 2012 U.S. Dist. LEXIS 35301, at *15 (finding that a letter which contained "an extremely detailed account of various communications between the two parties" constitutes a qualified written request).

Now that the court has found that four of Shaw's written communications were Qualified Written Requests sufficient to trigger CMI's investigation and response duties under RESPA, the court must determine whether CMI's response to those requests, if any, was in accordance with its duties under RESPA. Initially, the court finds that CMI did not even respond to or acknowledge Shaw's December 5, 2011 Qualified Written Request. This lack of acknowledgment of the request is, itself, a violation of RESPA. See 12 U.S.C. § 2605(e)(1)(A) (stating that a loan servicer "shall provide a written response acknowledging receipt of the correspondence...."). CMI's failure to acknowledge receipt of Shaw's Qualified Written Request, as evidenced by the January 3, 2012 e-mail to Ross which references CMI's lack of response, was a direct violation of its duties under RESPA.

The court finds that CMI likewise violated its duties under RESPA as it relates to the January 3, 2012 Qualified Written Request. Although Dana Ross properly acknowledged this request in a January 5, 2012 e-mail to Shaw, CMI did not appropriately respond to the request after the investigation period. The evidence establishes that CMI's only response to Shaw's January 3, 2012 Qualified Written Request was a January 9, 2012 letter advising Shaw that non-party Aurora was the current owner of his residential loan and provided contact information for Aurora. Pl. Trial Ex. 25, P00066. However, at no point within sixty (60) days after receiving Shaw's request did CMI provide any of the loan documents that had been requested. CMI's failure to provide these documents to Shaw is a direct violation of RESPA. Pettie, 2009 WL 1325947, at *2-3, 2009 U.S. Dist. LEXIS 4149, at *7.

After receiving CMI's January 9, 2012 letter identifying Aurora as the current owner of his loan, Shaw contacted Aurora at the contact information provided by CMI. Aurora advised Shaw that it was not the owner of his loan at which point Shaw again contacted CMI as outlined in his January 20, 2012 Qualified Written Request. See Pl. Trial Ex. 26, P00067-69. Similar to Shaw's December 3, 2011 request, CMI did not acknowledge receipt of Shaw's January 20, 2012 request. As addressed above, this failure by CMI is a violation of its duties under RESPA. 12 U.S.C. § 2605(e)(1)(A). Further, the only response to Shaw's request was a February 13, 2012 letter from CMI again identifying non-party Aurora as the owner of Shaw's residential loan. Pl. Trial Ex. 31, P00099. However, by that point Shaw had already informed CMI that Aurora was not the owner of his residential loan. Thus, the information CMI provided, stating that Aurora was the current owner of his loan, was false information. CMI's failure to provide Shaw correct contact information for the owner of his loan is an express violation of RESPA. See 12 U.S.C. § 2605(k)(1)(D) (stating that a loan servicer shall provide "the identity, address, and other relevant contact information about the owner of assignee of the loan" when requested by the borrower). Further, once again, at no point did CMI provide Shaw with any of the loan documents that he had been requesting since December 5, 2011. As addressed above, this is also a violation of RESPA. Pettie, 2009 WL 1325947, at *2-3, 2009 U.S. Dist. LEXIS 4149, at *7.

Shaw's last Qualified Written Request was his January 29, 2013 Qualified Written Request. Attorney Joseph Bleeker, CMI's counsel of record at that time, acknowledged Shaw's request within the twenty day time period and stated that CMI would be responding to Shaw's request within the requisite sixty (60) days time period. See Pl. Trial Ex. 39, P00123-124. Further, in contrast to CMI's prior responses, or lack of responses to Shaw's requests, CMI sent Shaw a package on March 6, 2013, from Kristin Dennis, a Default Research Specialist at CMI. Pl. Trial Ex. 43, P00139-187. The court has reviewed CMI's response and finds that it properly and appropriately complied with its duties under RESPA. The package included copies of all of the documents that Shaw requested, provided a detailed explanation for CMI's actions on Shaw's mortgage account, and explained the reasons for any lacking information. As such, the court finds that CMI did not violate RESPA as it relates to Shaw's January 29, 2013 Qualified Written Request. See, e.g., Pettie, 2009 WL 1325947, at *2-3, 2009 U.S. Dist. LEXIS 4149, at *7.

Based on the evidence presented at trial, the court has found that CMI violated RESPA on three separate occasions when dealing with Shaw's various Qualified Written Requests. A plaintiff who establishes that a servicer violated RESPA is entitled to recover "any actual damages" that the plaintiff suffered as a result of the defendant's violation and statutory damages. 12 U.S.C. § 2605(f)(1)(A) & (1)(B). RESPA's "actual damages" are limited to pecuniary damages. Zeich v. Select Portfolio Servicing, Inc., 2015 WL 10353128, at *2, 2015 U.S. Dist. LEXIS 151519, at *5 (D.Or.2015). Here, Shaw has not proven any actual damages as a result of CMI's violations of RESPA. In contrast to Shaw's claim for tortious breach of the implied covenants, under RESPA a plaintiff "cannot recover for worry, concern, or frustration." Id. Thus, the court finds that Shaw is not entitled to any actual damages. Instead, Shaw's damages award for CMI's violations is limited to statutory damages. Under RESPA, statutory damages may not exceed $2,000.00. 12 U.S.C. § 2605(f)(1)(B). Here, the court finds that such a statutory maximum is warranted based on the repeated pattern of CMI's failure to appropriately respond to Shaw's Qualified Written Requests and the fact that Shaw was never once provided correct contact information for the owner of his residential loan. Accordingly, the court shall enter judgment in the amount of $6,000.00 favor of Shaw and against CMI on Shaw's claims for violation of RESPA.

E. Intentional Interference

In Nevada, a claim for intentional interference with prospective economic advantage requires a plaintiff establish: "(1) a prospective contractual relationship between the plaintiff and a third party; (2) knowledge by the defendant of the prospective relationship; (3) intent to harm the plaintiff by preventing the relationship; (4) the absence of privilege or justification by the defendant; and (5) actual harm to the plaintiff as a result of the defendants' conduct." Fagin v. Doby George, LLC, 2011 WL 3425632, at *5, 2011 U.S. Dist. LEXIS 86389, at *15 (D.Nev.2011) (citing Wichinsky v. Mosa, 109 Nev. 84, 847 P.2d 727, 729-30 (1993)); see also Barket v. Clarke, 2012 WL 2499359, 2012 U.S. Dist. LEXIS 88097 (D.Nev.2012).

The court has reviewed the evidence submitted at trial in this matter and finds that Shaw has failed to prove his claim for intentional interference with prospective economic advantage by a preponderance of the evidence. Shaw's claim for intentional interference with prospective economic advantage relates solely to CMI's alleged failure to approve a short sale of the McFaul Court property in a timely manner, which stigmatized the property for potential buyers and caused a devaluation of the property. Although it is undisputed that Shaw had entered into four (4) separate short sale contracts on the McFaul Court property with two different parties, the Knapps and the Smiths, and that CMI had knowledge of these short sale agreements because Shaw had forwarded all four accepted short sale offers to CMI, the court finds that Shaw has not proven that CMI intended to harm Shaw by either denying the short sale offers or not responding to the short sale offers in a timely manner. At trial, Shaw only established that CMI did not respond to any of the four short sale offers in a timely manner thereby causing all four offers to expire under their terms. However, Shaw failed to provide any evidence that CMI's delay was specifically intended to cause the proposed buyers to walk away from the McFaul Court property or to cause harm to Shaw.

Further, the court finds that Shaw has not proven that CMI, as the servicer of his loan who had final approval on all short sales of the property, was not justified in its conduct. Initially, the court notes that CMI was justified in any delay in its responses to the two Knapp Offers because Shaw did not provide all necessary documents to CMI for it to properly evaluate and respond to these offers. It is undisputed that after receiving the first Knapp Offer, CMI requested various documentation from Shaw including: (1) a hardship letter; (2) a signed purchase agreement (as the original offer had expired in late February 2013); (3) Shaw's tax returns for the tax years 2011 and 2012; (4) all payoffs for the junior liens on the property within the last sixty days, if any; or, (5) if the junior liens still needed to be paid off, then approval letters of the short sale by each junior lien holder and releases of their junior liens; (6) the 2011 real estate tax bill for the McFaul Court property; and (7) a hazard insurance policy on the property. Def. Trial Ex. 525-A. Shaw submitted, and re-submitted, all requested documents except for signed releases from the junior lien holders. Shaw testified at trial that he had prepared appropriate junior lien holder releases including a consent to judgment in favor of non-party Katherine Barkley and a stipulated monetary judgment in favor of non-party Janice Shaw so that CMI could evaluate the Knapp Offers. However, both Katherine Barkley and Janice Shaw testified that they did not have any conversations with Shaw regarding the various short sale offers on the McFaul Court property, had not agreed to any short sale offers on the property, and had not agreed to release their junior liens or signed any paperwork releasing their junior liens. Further, Shaw did not provide the "judgment" documents to CMI and CMI never received any release documents signed by the junior lien holders. Accordingly, the court finds that CMI did not have any duty to approve, or even respond to, the Knapp Offers in a timely manner as Shaw failed to provide all required documents.

As to the first and second Smith Offers, the court finds that Shaw was not required to provide any releases from the junior lien holders for CMI to consider these short sale offers because under both offers, the junior lien holders were being paid in full. However, the court finds that because CMI had final authority to approve the short sales, Shaw has not established that under the short sales he had reasonable expectations of any economic advantage under these offers. Generally, a loan servicer like CitiMortgage has no duty to approve a short sale. See Blanford v. Suntrust Mortgage, Inc., 2012 U.S. Dist. LEXIS 141666, at *11 (D.Nev.2012). Further, as the servicer of Shaw's loan, all short sale offers had to be approved by CMI, thus, even though Shaw accepted the short sale offers, he did not have any true prospective economic benefit from these offers. For example, if CMI declined both Smith Offers, then Shaw would not have received any economic benefit as a matter of law because the McFaul Court property could not be sold at an amount less than Shaw's remaining indebtedness without CMI's permission. The court cannot now say that simply because CMI took no action on the offers, rather than deny them outright, that Shaw would have received an economic benefit. As CMI had no duty to respond,17 a lack of response which caused the offers to lapse would constitute the same action as a denial and thus, not be actionable for an intentional interference with prospective economic advantage. As CMI has no duty to approve, act on, or even acknowledge any short sale offers Shaw received on the McFaul Court property, the court finds that Shaw has failed to prove he had a prospective economic advantage under the contracts as the determination of whether to allow the property to be sold at short sale was solely within CMI's control. Further, the testimony at trial establishes that the two Smith Offers were not reasonable short sale offers, such that the court cannot find that CMI's lack of response on these offers was designed to intentionally cause harm to Shaw or was not justified. At trial, Attorney Dodrill testified that CMI would not have approved either Smith Offer as both offers proposed to pay off both junior lien holders in full and give Shaw $75,000 while CMI lost roughly $500,000 in the sale of the McFaul Court property. Attorney Dodrill further testified that CMI had never approved a short sale in such a situation and that no short sale offer which allowed for the borrower to receive money would be approved. Therefore, the court finds that CMI was justified in not responding to these short sale offers as such offers were not reasonable offers for the purchase of the property. Accordingly, based on all of the evidence presented at trial, the court finds that Shaw has not established by a preponderance of the evidence that CMI engaged in conduct that intentionally interfered with any prospective economic advantage. The court shall enter judgment in favor of CMI and against Shaw on this claim.

F. Punitive Damages

In his second amended complaint, Shaw seeks punitive damages for CMI's conduct outlined in this action. ECF No. 109. Punitive damages are not available in contract-based claims. See NRS § 42.005(1) (stating that punitive damages are available in any action "for the breach of an obligation not arising from contract"). Thus, the only claim for which punitive damages could be awarded in this action is Shaw's claim for tortious breach of the implied covenants of good faith and fair dealing.

Under Nevada law, in order to recover punitive damages, a plaintiff must show the defendant acted with oppression, fraud or malice. Pioneer Chlor Alkali Co. v. National Union Fire Ins. Co., 863 F.Supp. 1237, 1250 (D.Nev.1994). Oppression is a conscious disregard for the rights of others constituting cruel and unjust hardship. Id. at 1251 (citing Ainsworth v. Combined Ins. Co. of America, 104 Nev. 587, 763 P.2d 673, 675 (1988)). "Conscious disregard" is defined as "the knowledge of the probable harmful consequences of a wrongful act and a willful and deliberate failure to act to avoid those consequences." NRS § 42.001(1). Malice is conduct which is intended to injure a person or despicable conduct which is engaged in with a conscious disregard of the rights and safety of others. See NRS § 42.005(1). In order to establish that a defendant's conduct constitutes conscious disregard, the conduct must at a minimum "exceed mere recklessness or gross negligence." Pioneer Chlor Alkali Co., 863 F.Supp. at 1251; see also Countrywide Home Loans, Inc. v. Thitchener, 124 Nev. 725, 192 P.3d 243, 255 (2008) (holding that conscious disregard requires a "culpable state of mind" and therefore "denotes conduct that, at a minimum, must exceed mere recklessness or gross negligence.").

Based upon the substantial factual history in this action, and recognizing that CMI is a large home loan servicing company, the court finds by clear and convincing evidence that CMI's business practices and its specific conduct toward Shaw constituted oppression and a conscious disregard for Shaw's rights warranting punitive damages. Given the fact that Shaw's debt of over $900,000 was for his home, that a home is most Americans greatest asset and also greatest liability and is such an integral part of any homeowner's personal well being, the court finds that a homeowner is particularly vulnerable as a result of a tortious breach of the implied covenant of good faith and fair dealing oppressively committed by a large corporate servicing company such as CMI.

Here, there was a willful and unconscionable failure to avoid needless and harmful consequences in refusing to honor or recognize the May 2011 Modification Agreement (executed by CMI's Vice-President in May 2011). CMI's conduct in recognizing then continuously disavowing that agreement — despite a resolving document from CMI's Assistant General Counsel — was made with a conscious disregard for the harm that it was causing Shaw. Further, there was a willful and deliberate failure by CMI to avoid these consequences. Accordingly, the court finds that this is an appropriate case for punitive damages.

The court has already cited many of the factors that support the court's finding within the findings of fact and tortious breach of the implied covenants section of this order and those factors find equal weight here. But, the court now highlights several factors which particularly stand out in support of punitive damages and which have not been more specifically addressed. These include CMI's lack of policies, procedures, practices and management oversight in handling mortgage account issues such as Shaw's. The lack of company policies and management oversight in this action allowed CMI, through its Loss Mitigation, underwriting, and Executive Response Unit departments, to take the offensive position that CMI was entitled to require Shaw to abandon the fully executed May 2011 Modification Agreement in favor of the proposed July 2011 Modification Agreement despite upper management and assistant general counsel taking inconsistent and contrary positions. In essence, CMI chose to ignore its own agreement (and its own corporate counsel) because the company was aware that a financially strapped homeowner who was in default on a home loan during the post-recession economic downturn was in no position to hold CMI to the agreement it had unilaterally chosen to ignore. Given the obvious effects such a position would have upon any borrower/homeowner and the lack of any bargaining position to challenge CMI's position, it is clear that there would be dramatic and harmful consequences to a borrower which would cause feelings of utter frustration, worthlessness, and shame — shame and fear over losing a home — at the very time that the borrower was likely experiencing an insurmountable burden of debt. A non-attorney borrower would likely have caved in to CMI while an attorney like Shaw chose instead to rely upon his contract, though not without obvious compensable injury.

Beyond the above, the court also finds that there was a serious lack of practices, policies and procedures to deal with and explain the company's positions and actions to the borrower/homeowner. Here, despite repeated requests for information as to why Shaw received contradictory and inconsistent communications, CMI never provided any meaningful explanations. Moreover, CMI's responses to Shaw's requests for identification of his loan holder, including both those that qualified under RESPA and those that did not qualify, show a lack of policy and procedure to identify to a borrower/homeowner the creditor (whom CMI was representing) who owned the loan and how the creditor might be contacted. These are just a few examples of CMI's lack of centralized management policy and speak to the very core of CMI's conscious disregard of Shaw's rights. Significantly, even after going through a full trial, there has been no identification by CMI of the owner of Shaw's loan.

CMI's failures in this action are exacerbated by the frustration and unexplained revolving door of CMI personnel with whom Shaw was required to deal. Just during the time period from May 2011 through July 2012 when CMI effectively stopped communication with Shaw concerning his mortgage account, Shaw had dealt with two different individuals who had drafted separate modification agreements (Kim Vukovich and Juan Mayorga), three separate Homeowner Support Specialists (Chris Gabbert, Jennifer Butler, and Robert Orcutt), and CMI's Assistant General Counsel, Dana Ross, not to mention the myriad of unnamed employees Shaw contacted in 2011 through 2012. And there was commonly no meaningful explanation of why a new person, new department, or some other representative was being identified as the person with whom Shaw was now required to deal. Moreover, the evidence established that Shaw informed each new CMI representative of the history of his mortgage account and rather than investigate the matter further — an investigation readily available through Shaw's electronic mortgage account and the documents in Shaw's and CMI's possession — these representatives continued to push forward with CMI's untenable position that there was no valid and binding loan modification under the May 2011 Modification Agreement. CMI willfully ignored the harm it was causing to Shaw despite clear warning signs from Shaw that its conduct was improper.

Another failure, previously mentioned, was CMI's inexcusably delayed recognition of the May 2011 Modification Agreement. An agreement executed by its Vice-President but then rejected by some employee in the Loss Mitigation department only to be honored by CMI's own assistant general counsel and then rejected again by an employee in the Executive Response Unit without any meaningful explanation to the borrower/homeowner and without any regard for the financial burden, frustration and stress such inconsistency placed on the borrower/homeowner is strong evidence of oppression. After three plus years of litigation and a three-day bench trial, an explanation for CMI's behavior is still unknown.

Also significant to the court in finding that punitive damages are warranted in this action is the effect of CMI's actions and lack of actions concerning Shaw's credit status. While it is clear that he was in default on his original loan, it is also clear that he cured the default through the execution of the May 2011 Modification Agreement which subsumed all past due amounts into a new principal balance, made all payments under that agreement in a timely fashion through December 2011, and yet Shaw received negative and unreliable credit reporting by CMI throughout much of this period and after-ward. Although the evidence could not show the reasons for the revocation of Shaw's credit card, and the denial for Shaw's credit applications for his daughter's student loans, the rejection of the credit application for the purchase of his son's automobile, and the rejection of Shaw's own automobile purchase, it is a reasonable conclusion that CMI's negative reporting during the periods of time when the default had been cleared contributed to Shaw's credit problems, particularly when his only negative credit issues were related to his mortgage, and would have been a factor in the shame, embarrassment, stress and frustration suffered by Shaw over the relevant time period. Taking all of these factors together, they demonstrate that CMI acted with conscious disregard of Shaw's rights and support an award of punitive damages.

In Nevada, an award of punitive damages is limited to "[t]hree times the amount of compensatory damages awarded to the plaintiff if the amount of compensatory damages is $100,000 or more." NRS § 42.005(a). Here, the compensatory damages under Shaw's tortious breach of the implied covenants claim is $239,850.00 and the court finds that an appropriate amount of punitive damages for the conduct out-lined above is the statutory limit. Thus, trebling this amount, the court shall enter judgment in the amount of $719,550.00 in favor of Shaw and against CMI for punitive damages.

G. Attorney's Fees

Although not presently before the court, the court notes for the benefit of the parties that it would consider a motion for attorney's fees filed by Shaw pursuant to NRS § 18.010 and 12 U.S.C. § 2605(f)(3), as Shaw is the prevailing party in this action under his declaratory relief, tortious breach of the implied covenants, and RESPA claims. Therefore, the court shall grant Shaw leave to file a motion for attorney's fees, if any, within twenty (20) days of entry of this order. Such motion shall comply with Local Court Rule 54-14.

IT IS THEREFORE ORDERED that the clerk of court shall enter judgment in favor of plaintiff Leslie Shaw and against defendant CitiMortgage, Inc. on Shaw's claim for declaratory relief and breach of contract in accordance with this order.

IT IS FURTHER ORDERED that the clerk of court shall enter judgment in the amount of $239,850.00 in favor of plaintiff Leslie Shaw and against defendant CitiMortgage, Inc. on plaintiff's claim for breach of the implied covenants of good faith and fair dealing.

IT IS FURTHER ORDERED that the clerk of court shall enter judgment in the amount of $6,000.00 in favor of plaintiff Leslie Shaw and against defendant CitiMortgage, Inc. on plaintiff's claims for violation of the Real Estate Settlement Procedures Act.

IT IS FURTHER ORDERED that the clerk of court shall enter judgment in favor of defendant CitiMortgage, Inc. and against plaintiff Leslie Shaw on plaintiff's claim for intentional interference with prospective economic advantage.

IT IS FURTHER ORDERED that the clerk of court shall enter judgment in the amount of $719,550.00 in favor of plaintiff Leslie Shaw and against defendant CitiMortgage, Inc. for punitive damages.

IT IS FURTHER ORDERED that plaintiff shall serve a copy of this order upon junior lien holders Katherine Barkley and Janice Shaw within (10) days of entry of this order.

IT IS FURTHER ORDERED that plaintiff shall have twenty (20) days from entry of this order to file a motion for attorney's fees in accordance with this order, if any.

IT IS SO ORDERED.