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Terry v. Wells Fargo Bank, N.A.

United States District Court, N.D. California

July 26, 2016

NATHAN TERRY; GERALDINE TERRY, Plaintiffs,
v.
WELLS FARGO BANK, N.A.; U.S. BANK, N.A.; and DOES 1 through 50, inclusive, Defendants.

          ORDER DENYING MOTION FOR LEAVE TO AMEND

          WILLIAM ALSUP UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         In this 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 Denied.

         STATEMENT

         The 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.

         In July 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. ¶¶ 9-11).

         In 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).

         In 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. ¶ 19).

         In 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.

         On or 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.”

         On or around April 1, 2014, plaintiffs submitted all documentation requested by Wells Fargo.

         Despite 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.

         In 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 ...


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