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Green v. Wells Fargo Bank, N.A.

United States District Court, D. Maryland

February 27, 2013

Shirley M. GREEN, et al.

Page 245

Jason A. Ostendorf, Law Office of Jason Ostendorf LLC, Baltimore, MD, for Shirley M. Green, et al.

Michael S. Barranco, Treanor Pope and Hughes PA, Towson, MD, for Wells Fargo Bank, N.A.


DEBORAH K. CHASANOW, District Judge.

Presently pending and ready for resolution in this consumer lending action is a motion to dismiss filed by Defendant Wells Fargo Bank, N.A. (ECF No. 25). The issues are fully briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, Defendant's motion will be granted.

I. Background

A. Factual Background

The following facts are drawn from the amended complaint and exhibits attached thereto. (ECF No. 24). On May 31, 2006, Plaintiffs Shirley M. Green, Ralph E. Green, and Antoinette Green took out a mortgage of just under $1 million from Southern Trust Mortgage, LLC, to finance their purchase of a home in Upper Marlboro, Maryland. The servicing rights to the loan were later assigned to Defendant Wells Fargo Bank, N.A.

In or around October 2010, the Greens experienced financial difficulties and fell behind on their mortgage payments. In late March or early April 2011, they contacted Wells Fargo to inquire about a loan modification. In response, Defendant sent

Page 246

a letter dated April 8, 2011, which opened with the statement, " [a]t Wells Fargo Home Mortgage, our goal is to ensure that you have every opportunity to retain your home." (ECF No. 24-4, at 2).[1] Defendant advised the Greens, " [i]n order to process your request for Loan Modification, the following information is needed ... for each specified borrower[:] ... Proof of Income (paystub, SSI, child support)." ( Id. ). The letter further stated:

If ALL of this information or a request for an extension is not received within ten (10) days from the date of this letter, we will consider this request cancelled. Please note any collection and foreclosure action will continue uninterrupted until approval. Therefore, a timely response is essential.

The Greens failed to respond promptly to Defendant's request for information, and, on May 16, 2011, a foreclosure action was commenced against them in the Circuit Court for Prince George's County, Maryland. (ECF No. 24-10; see also ECF No. 23-2).[2] Approximately one week later, Ralph and Shirley Green submitted a number of documents to Wells Fargo, including paystubs, a lease showing their receipt of monthly rent in connection with an unspecified property, various tax documents, and documents related to a second mortgage on their home. This submission was accompanied by a cover letter in which the Greens provided detail of the circumstances leading to their default and asked Wells Fargo " to consider working with [them] to modify [their] loan before it goes into foreclosure." (ECF No. 24-3, at 1 (emphasis removed)).

In mid-June 2011, the Greens received a letter from a Wells Fargo " Home Preservation Specialist," Mike Leiferman, who introduced himself as " part of the special team that's dedicated to helping [them] with [their] request for mortgage payment assistance." (ECF No. 24-5, at 2; see also ECF No. 24-7, at 3). Mr. Leiferman advised that he would be the Greens' " primary contact, to help [them] every step of the way," and would work " closely with [a] team of specialists to determine what options might be right for [them]." ( Id. ). The letter reminded the Greens that Wells Fargo had recently asked them to " forward [ ] certain documents" necessary for a determination as to their " eligibility for payment assistance," and requested that they promptly submit this information if they had not done so already. ( Id. ). Mr. Leiferman asked Plaintiffs to " keep in mind that the sooner [they responded], the sooner [Wells Fargo could] determine [ ] eligibility for payment assistance," and stated that he would be " in touch ... to discuss what happens next" after the requested information had been " receive[d] and review[ed]." ( Id. ).

On or about June 23, the Greens had a " conversation" with Mr. Leiferman during which he apparently clarified the documents

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that were necessary to process the loan modification request. (ECF No. 24-6, at 2). On June 29, " [a]s requested" during that conversation, Plaintiffs submitted " pay stubs for April and May [2011] for Ralph and Shirley Green[; ] personal bank statement[s] for March, April, [and] May[; ] [IRS] Form 4506[T; ] [and a] May bank statement for Bank of America." ( Id. ).

On November 4, 2011, the Greens received a letter from Mr. Leiferman " responding to [their] request for mortgage assistance and the options that may be available to help [them]." (ECF No. 24-7, at 2). The letter advised that Wells Fargo had " carefully reviewed the information" provided and " explored a number of mortgage assistance options," but concluded that the Greens did " not meet the requirements of the program" because Wells Fargo had " not been able to reach [them] to discuss [their] situation, and without input from [them], [it was] not able to review [them] for a loan modification." ( Id. ). Defendant stated that it would " continue to work" with the Greens " to help [them] avoid a foreclosure sale," but cautioned that " if [their] mortgage ha[d] been referred to foreclosure, that process moves forward at the same time." ( Id. at 3). Plaintiffs responded by letter dated December 1, stating, " [a]fter months of patiently waiting for a loan modification, we are devastated over the decision [not to] offer us a reasonable mortgage assistance solution." (ECF No. 24-8, at 2). " Contrary to the letter dated 11/4/11," they asserted, " we have provided every document requested over and over again ... [and] initiated calls on numerous occasions for updates and statuses of our loan," characterizing the prior statement that they could not be reached as " absurd." ( Id. ). Plaintiffs further stated, " [t]his process has caused extreme stress which has affected our health," recalling that they were " told by Michael Leiferman, the Home Preservation Specialist[,] on numerous occasions, not to worry[,] that things would [work out,] and that everything was fine[,] that [the] loan was in underwriting." ( Id. ). According to the Greens, Mr. Leiferman also told them that " all documents that were needed had been received." ( Id. ).

By letter dated December 14, 2011, Wells Fargo requested that Plaintiffs " [c]all ... immediately so [it could] respond to [their] request for mortgage payment assistance." (ECF No. 24-9, at 2). The letter thanked Plaintiffs for " sending ... documentation supporting [their] request," advising that Wells Fargo was " here to help," but that it was " critical" that they make contact " immediately to determine what options may be available." ( Id. ). Because Plaintiffs were " in the foreclosure process," Defendant cautioned that they had " limited time to receive assistance before a foreclosure sale [was] scheduled." ( Id. ). Wells Fargo asserted that it would continue to " work with" the Greens " to help prevent foreclosure," but that if it did not " receive all required documents before the scheduled foreclosure sale, [it] may not be able to stop the sale." ( Id. ). Defendant asked Plaintiffs to " gather the following information and have it ready when [they] call[:] ... Monthly gross income (before taxes) for each borrower[,] [a]ny additional household income [,] [c]urrent monthly expenses (have a list of all expenses, including any taxes and insurance for your home paid separately from your mortgage payment) [,] and [the] [r]eason for [their] financial hardship." ( Id. ).

B. Procedural History

Ralph and Shirley Green commenced this action in the Circuit Court for Prince George's County on February 1, 2012, alleging ...

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