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James R. Johnson v. Wells Fargo Home Mortgage et al.

April 11, 2012


The opinion of the court was delivered by: The Honorable Gary Allen Feess

LINKS: 6, 7


Present: The Honorable GARY ALLEN FEESS

Renee Fisher None N/A Deputy Clerk Court Reporter / Recorder Tape No. Attorneys Present for Plaintiffs: Attorneys Present for Defendants: None None

Proceedings: (In Chambers)




Plaintiff James R. Johnson brings this action against Defendant Wells Fargo Bank, N.A. ("Wells Fargo"), alleging that Defendant breached its obligation to offer him a home loan modification. The complaint was filed on December 19, 2011, in San Bernardino Superior Court, and removed to this Court on January 31, 2012, pursuant to 28 U.S.C. § 1332(a). (Docket No. 1, Not. & Ex. A [Compl.]) Now pending before the Court are Plaintiff's motion to remand, and Defendant's motion to dismiss. (Docket Nos. 6, 7.) For the reasons set forth below, the Court concludes that Defendant's removal was premature. Accordingly, the Court GRANTS the motion to remand and DENIES as moot the motion to dismiss.

Plaintiff alleges that, on or about August 20, 2007, he received a Grant Deed to real property located at 5858 Wilshire Drive in Fontana, California ("the Property"). (Compl. ¶ 5.) Plaintiff alleges that he "borrowed [an unspecified amount of] money from one or more of the Defendants or its subsidiaries or affiliates or successors and assigns between January 1, 2003, and December 31, 2009," secured by a Deed of Trust on the Property. (Id. ¶¶ 6--7.) At all times relevant to the allegations contained in the complaint, Plaintiff alleges that "one or more of the Defendants have acted as Servicer or [in] some other control capacity over processing the loan." ¶ 7.)

Plaintiff alleges that "Defendants contracted with Fannie Mae and/or Freddie Mac to participate in the Home Affordable Modification Program (HAMP), and agreed to participate in the program when it accepted TARP money from the United States government. (Id. ¶¶ 20--21.) Plaintiff thereafter submitted requests for a loan modification, along with all necessary documentation, which were accepted for review. (Id. ¶ 22.) Nevertheless, Plaintiff alleges that Defendants failed to provide him with a loan modification "consistent with the terms of the [HAMP] agreements signed by Defendants," despite his being qualified for such assistance. (Id. ¶ 23.) In particular, Plaintiff alleges that, despite his submission of a "qualified written request," Defendant has failed to comply with HAMP guidelines requiring participants to "provide foreclosure avoidance," and to provide him with information that may assist him in seeking a loan modification. (Id. ¶¶ 24--26.) Plaintiff alleges that, as a result of these failures, he faces "imminent foreclosure because payment default is reasonably foreseeable." (Id. ¶ 28.)

Plaintiff asserts one cause of action for breach of contract, alleging that "Defendants breache[d] the Deed of Trust by failing to follow applicable law," in particular California Civil Code section 2923.5. (Id. ¶¶ 29--45.) Plaintiff alleges that, notwithstanding the California Legislature's "intent . . . that, prior to foreclosure, the mortgagee, beneficiary, or authorized agent offer the borrower a loan modification or workout plan if such a modification or plan is consistent with its contractual or other authority", Defendant "failed to properly assess Plaintiff's financial situation and to explore options through which he might avoid foreclosure. (Id. ¶ 37.) In particular, Plaintiff alleges that Defendant violated California Civil Code section 2923.5 by failing to [1] "make initial contact"; [2] "satisfy [that provision's] due diligence requirements";

[3] "contact the borrowers in person or by telephone in order to assess [their] financial situation and explore options . . . to avoid foreclosure"; [4] "advise the borrowers that [they] ha[ve] the right to request a subsequent meeting; and [5] schedule a meeting "within 14 days of an advisement of the right to a meeting". (Id. ¶ 38.)

Plaintiff also alleges, within his breach of contract claim, that Defendants violated various provisions of the Real Estate Settlement Procedures Act (RESPA) and the Truth in Lending Act (TILA), and seeks damages pursuant to those statutes. (Id. ΒΆΒΆ 31--35, 39--44.) However, Plaintiff explicitly states that he is not bringing federal causes of action, and that Defendants' "actions and omissions [with respect to these federal statutes] are relevant to the causes of action alleged . .. [because] (1) such actions and omissions and the potential consequences thereof were ...

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