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Title: Gerard J. Van Egmond v. Wells Fargo Home Mortgage

March 21, 2012

TITLE: GERARD J. VAN EGMOND
v.
WELLS FARGO HOME MORTGAGE



The opinion of the court was delivered by: The Honorable David O. Carter, Judge

CIVIL MINUTES - GENERAL

Julie Barrera Not Present Courtroom Clerk Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS:

NONE PRESENT NONE PRESENT

PROCEEDING (IN CHAMBERS): ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

Before the Court is Defendant Wells Fargo Home Mortgage's Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6). ("Mot.") (Dkt. 4). The Court finds this matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; Local Rule 7-15. The Court has considered the moving, opposing, and replying papers, and hereby GRANTS Defendant's Motion to

I. BACKGROUND

Taken as true and in the light most favorable to Plaintiff, the facts alleged by Gerard J. Van Egmond ("Plaintiff" or "Van Egmond") are as follows:

Plaintiff borrowed $519,900 against his home in Costa Mesa, CA; this debt was secured by a Deed of Trust recorded on July 5, 2006. Compl. Ex. C; contained in Notice of Removal Ex. 1 (Dkt. 1). Plaintiff fell behind on his payments and a Notice of Default was recorded against him on February 28, 2011. Request for Judicial Notice ("RJN") (Dkt. 4 Ex. 1) Ex. B.*fn1 Subsequently, a Notice of Trustee's Sale was recorded on June 6, 2011, setting the sale date for Plaintiff's home on June 27, 2011. RJN Ex. E. The pleadings do not reflect that a sale of Plaintiff's home has yet occurred.

On June 6, 2011, on the same day that the Notice of Trustee's Sale was recorded, Plaintiff sent Defendant Wells Fargo Home Mortgage d/b/a America's Servicing Company ("Wells Fargo" or "Defendant") a qualified written request ("QWR") pursuant to the Real Estate Settlement Procedures Act ("RESPA"). Compl. ¶ 21; Compl. Ex. A. Plaintiff requested this information from Defendant in order to personally assess his eligibility for a loan modification under certain federal programs. Compl. ¶ 16; Compl. Ex. A. The QWR identified both Plaintiff and his loan. Compl. Ex. A. Sent through Plaintiff's attorney, the QWR stated:

We are writing because the above-named borrower has not been provided a loan modification or other applicable foreclosure avoidance as required by the Making Home Affordable Program ["HAMP"] guidelines and applicable United States Codes and Public Laws. The borrower qualifies for a loan modification and we believe you as the lender should take such action as required to provide and effectuate modification of the loan(s) to make the payments affordable to the borrower.

Attached is a copy of the prior loan modification submission. The prior conversations with your customer service representatives indicated the submission was complete and the file was in review. . . . For an unknown reason, despite qualifying for a loan modification, you have not provided the borrower and foreclosure avoidance. Therefore, to resolve these issues we require specific information as allowed by law.

The QWR then goes on to request, in 35 numbered paragraphs, voluminous documentation from Defendant. Id. The documents requested by Plaintiff include: a complete and itemized statement of the loan history, including all charges to the account, an itemized statement of the escrow account, questions regarding insurance placed on the account, statements regarding property inspection fees and reports, an itemized statement of the arrears and late charges, the payoff figure, statements listing modification fees, a definitional dictionary defining all transaction codes, an itemized statement of foreclosure expenses, "the full name, address and phone number of the current holder of this debt," a copy of the pooling agreement, the servicer's procedural manual used with respect to servicing the loan, the loss-mitigation rules used in conjunction with this loan, and information relating to the pool of loans the mortgage was placed in such as the prospectus offered to investors in that pool, the trustee under that pool, relevant SEC documents related to that pool, and documents relating to the electronic registration of that pool. Id. Plaintiff claims that the response he received to this QWR was deficient, but he notably fails to attach that response, despite repeatedly referencing its deficiencies in both the Complaint and his Opposition to Defendant's Motion.

The allegedly deficient QWR response is instead attached to Defendant's Reply to Plaintiff's Opposition to Defendant's Motion to Dismiss.*fn2 Reply to Pl.'s Opp'n to Def.'s Mot. ("Reply") (Dkt. 7) Ex. A. The QWR response is dated June 17, 2011. Reply Ex. A. The cover letter to the QWR response stated that Defendant "would like to provide you with the details of my research" and included several enclosures. Id. The enclosures consisted of: (1) a complete payment history showing when payments were received, how they were applied, a description of each transaction on the loan, and running balances of the escrow, fee, and principal accounts; (2) copies of the original note and security instrument validating the debt and defendant's right to assess fees and costs associated with the loan; (3) a "HUD1 Settlement Sheet" itemizing all charges associated with the real estate transaction; (4) a "Final Loan Application used to record relevant financial information about a mortgage applicant;" (5) Truth in Lending ...


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