United States District Court, N.D. California
ORDER DENYING MOTION FOR LEAVE TO AMEND
WILLIAM ALSUP UNITED STATES DISTRICT JUDGE.
foreclosure dispute, plaintiff borrowers move for leave to
file an amended complaint to assert a claim under federal
regulations. To the extent stated herein, the motion is
following well-pled facts are assumed to be true for the
purposes of the present motion. In November 2006, plaintiffs
Nathan Terry and Geraldine Terry obtained a mortgage from
Wells Fargo Bank, N.A. to purchase a single-family residence
in Fremont, California. In January 2011, another deed of
trust was recorded on the property.
2012, plaintiffs applied for a loan modification. In October
2012, Wells Fargo approved plaintiffs for a Trial Period Plan
(the “TPP Agreement”). Pursuant to the TPP
Agreement, plaintiffs made three trial period payments of $2,
905.04 from November 2012 to January 2013. The TPP stated
that “[u]pon successful completion of these payments,
we will offer you a mortgage modification” (Amd. Compl.
December 2012, in the middle of the trial period, Wells Fargo
sent plaintiffs a letter stating that the mortgage was not in
first lien position. The letter requested that plaintiffs
obtain signed subordination agreements from the other lien
holders on the property (id. ¶ 13). Plaintiffs
then made repeated attempts to contact their “single
point of contact” at Wells Fargo to inquire about the
subordination issue. Plaintiffs’ calls were not
returned (id. ¶¶ 13-16).
March 2013, after plaintiffs had successfully completed the
trial period pursuant to the TPP Agreement, Wells Fargo sent
plaintiffs a letter stating that they did not qualify for the
mortgage assistance program. The letter provided no
information about the reason for the denial (id.
November 2013, defendants recorded a notice of default.
Plaintiffs again attempted to reach their “single point
of contact” at Wells Fargo but to no avail. Plaintiffs
reached a general Wells Fargo representative who advised
plaintiffs to submit a new loan modification application. The
representative indicated that she would send a modification
application to plaintiffs. On January 6, 2014, plaintiffs
received the application packet and, on or around January 14,
2014, plaintiffs submitted the application to Wells Fargo.
around January 14, 15, and 17, 2014, Wells Fargo
(id. ¶¶ 23-24):
sent Plaintiffs letters confirming receipt of
Plaintiffs’ application and [sic] would inform
Plaintiffs if any additional documents were needed.
Thereafter, Defendant sent Plaintiffs a letter requesting
that Plaintiffs submit additional documents which were not
initially requested from Plaintiffs by Defendant.
Specifically, the letter stated that Plaintiffs would need to
submit proof of income by no later than April 20, 2014. The
letter also stated that “[w]e’ll continue to work
with you to help you avoid a foreclosure sale….[i]f
your loan has been referred to foreclosure, we will not
conduct a foreclosure sale on this loan while your documents
are being reviewed.”
around April 1, 2014, plaintiffs submitted all documentation
requested by Wells Fargo.
the pending modification application, defendants recorded a
notice of trustee’s sale in February 2014 (Amd. Compl.
¶ 26). From what can be gleaned from the complaint, the
property has not yet been sold in foreclosure.
March 2015, plaintiffs filed a complaint alleging: (1) breach
of contract; (2) violation of California Civil Code Section
2923.6; (3) violation of California Civil Code Section
2923.7; (4) violation of California Civil Code Section
2924.17; (5) violation of California Civil Code Section