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Corvello v. Wells Fargo Bank, N.A.

United States Court of Appeals, Ninth Circuit

August 8, 2013

Phillip R. Corvello, Plaintiff-Appellant,
v.
Wells Fargo Bank, NA, DBA America's Servicing Company, DBA Wells Fargo Home Mortgage, Inc., Defendant-Appellee. Karen Lucia; Jeffrey Lucia, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants,
v.
Wells Fargo Bank, NA, AKA Wells Fargo Home Mortgage, Inc., Defendant-Appellee.

Argued and Submitted March 20, 2013—San Francisco, California

Appeal from the United States District Court for the Northern District of California D.C. Nos. 3:10-cv-05072-JSW, 3:10-cv-04749-JSW Jeffrey S. White, District Judge, Presiding

Timothy G. Blood, Leslie E. Hurst (argued) and Thomas J. O'Reardon, II, Blood Hurst & O'Reardon, LLP, San Diego, California; Andrew S. Friedman, Elaine A. Ryan and Patricia N. Syverson, Bonnett, Fairbourn, Friedman & Balint, P.C., Phoenix, Arizona; Todd D. Carpenter, Bonnett, Fairbourn, Friedman & Balint, P.C., San Diego, California; James R. Patterson, Patterson Law Group, San Diego, California, for Plaintiff-Appellant Phillip R. Corvello.

Brian R. Strange, Gretchen Carpenter (argued) and Adrian R. Bacon, Strange & Carpenter, Los Angeles, California; Hernán Vera, Public Counsel, Los Angeles, California, for Plaintiffs-Appellants Karen Lucia and Jeffrey Lucia.

Matthew G. Ball, K&L Gates LLP, San Francisco, California; Irene C. Freidel (argued) and David D. Christensen, K&L Gates LLP, Boston, Massachusetts, for Defendant-Appellee.

Before: Mary M. Schroeder, John T. Noonan, and Mary H. Murguia, Circuit Judges.

SUMMARY [*]

Home Affordable Modification Program

The panel reversed the district court's dismissals of diversity actions challenging the decision of Wells Fargo Bank not to offer permanent mortgage modifications to plaintiff borrowers.

The panel held that under the Home Affordable Modification Program the bank was contractually required to offer the plaintiffs a permanent mortgage modification after they complied with the requirements of a trial period plan ("TPP"). The panel held that the district court should not have dismissed the plaintiffs' complaints when the record before it showed that the bank had accepted and retained the payments demanded by the TPP, but neither offered a permanent modification, nor notified plaintiffs they were not entitled to one, as required by the terms of the TPP.

OPINION

PER CURIAM:

INTRODUCTION

The U.S. Department of the Treasury, acting under the direction of Congress, launched the Home Affordable Modification Program ("HAMP") in 2009 to help distressed homeowners with delinquent mortgages, but the program seems to have created more litigation than it has happy homeowners. The issue we must decide is whether a bank was contractually required to offer the plaintiffs a permanent mortgage modification after they complied with the requirements of a trial period plan ("TPP"). The district court held the bank was not, and we reverse.

Similar issues have arisen in both state and federal courts. We now follow the Seventh Circuit's leading federal appellate decision, which came down after the district court's ruling in this case, to hold that the bank was required to offer the modification. See Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547 (7th Cir. 2012). The district court should not have dismissed the plaintiffs' complaints when the record before it showed that the bank had accepted and retained the payments demanded by the TPP, but ...


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