United States District Court, N.D. California
ORDER GRANTING DEFENDANT WELLS FARGO'S MOTION FOR
SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT RE: DKT. NOS. 155, 166
CHHABRIA United States District Judge
Fargo's motion for summary judgment is granted and Kabita
Choudhuri's motion for summary judgment is denied.
Choudhuri has not provided evidence to create a genuine
dispute of material fact that would preclude summary judgment
in favor of Wells Fargo.
Estate Settlement Procedures Act
Choudhuri alleges that Wells Fargo violated the Real Estate
Settlement Procedures Act ("RESPA") by failing to
respond to her request for information about her loan.
Choudhuri is correct that her March 1, 2015 letter to Wells
Fargo constituted a qualified written request under RESPA
because it provided sufficient detail about the information
she sought and explained that she thought computing errors
had led to mistakes in the loan accounting. 12 U.S.C. §
2605(e)(1)-(2); see Medrano v. Flagstar Bank, FSB,
704 F.3d 661, 666 (9th Cir. 2012). However, Wells Fargo has
presented evidence of having met its RESPA obligations with
respect to her request: on March 3, Wells Fargo acknowledged
receipt of Choudhuri's letter; on March 16, Wells Fargo
informed Choudhuri that it would act by March 30; and on
March 25, Wells Fargo sent Choudhuri a detailed response to
her letter. Smith Decl. Exs. Y-AA (Dkt. No. 166-1). In
response, Choudhuri says that she did not receive this March
25th letter. Vukovic Decl. Ex. A (Dkt. No. 166-3) at
268:8-21. However, even if this were enough to create a
genuine fact issue (which it probably does not),
Choudhuri's claim fails because she has not presented
evidence that she suffered damages as a result of Wells
Fargo's alleged lack of response to her qualified written
requests. Choudhuri's screenshot of her rejected
application for an energy savings program (with no
established connection to this loan) is not enough to create
a genuine dispute of fact as to whether she sustained actual
damages as a result of the alleged RESPA violation. Nor has
she presented evidence that any increased loan payments were
proximately caused by Wells Fargo's allegedly incomplete
or missing responses to her qualified written requests.
See Banares v. Wells Fargo Bank, NA, 681 Fed
App'x 638, 641 (9th Cir. 2017); Tamburri v. Suntrust
Mortgage, Inc., 875 F.Supp.2d 1009, 1014-15 (N.D. Cal.
2012). Nor has Choudhuri presented evidence of a pattern or
practice of noncompliance by Wells Fargo that would permit
damages. 12 U.S.C. § 2605(f)(1)(B).
claim based on the later letter fares no better.
Choudhuri's letter to Wells Fargo on April 12, 2015 was
no more than a copy of her March 1st letter with a
handwritten note stating that she had not received a
response. (In fact, the April 12th correspondence still had
the typewritten March 1st date on it.) Smith Decl. Ex. BB. In
light of Wells Fargo's response to her identical letter
from the previous month, it appears that Wells Fargo met its
obligation to respond to her qualified written request. But
even if Wells Fargo should have separately responded to her
April 12th letter, Choudhuri's claim fails because she
has not presented evidence of damages suffered as a result of
Wells Fargo not replying to her second request.
second claim under RESPA is that Wells Fargo did not satisfy
its obligation to protect her credit rating while her
qualified written request was pending. However, Choudhuri has
not presented any evidence to support her claim that Wells
Fargo improperly reported her mortgage during the 60-day
period after receiving her qualified written request. 12
U.S.C. § 2605(e)(3). As a result, Wells Fargo prevails
on summary judgment on both RESPA claims.
Bill of Rights
claims under the Homeowner Bill of Rights ("HBOR")
do not survive summary judgment either. First, Choudhuri
fails to present evidence that contradicts Wells Fargo's
showing that it complied with its obligation to provide a
single point of contact. The statute permits the servicer to
appoint a team of individuals and does not prevent the
servicer from replacing the contact over time. Cal. Civ. Code
§ 2923.7; Hild v. Bank of America, N.A., No.
EDCV 14-2126 JGB (SPx), 2015 WL 1813571, at *7 (C.D. Cal.
Apr. 21, 2015). Nor has Choudhuri provided evidence that the
purported violation of the single point of contact provision
caused actual economic damages. Crumley v. U.S. Bank
National Association, No. 5:17-cv-07144-HRL, 2018 WL
984864, at *4 (N.D. Cal. Feb. 20, 2018); Rockridge Trust
v. Wells Fargo NA, No. 13-cv-01457-JCS, 2014 WL 688124,
at *23 (N.D. Cal. Feb. 19, 2014).
dual tracking claim also does not succeed. Choudhuri sent her
initial loan modification application to Wells Fargo in
January 2015. It was denied on April 8, 2015 and April 14,
2015, and her appeal was denied on May 19, 2015. Even though
the notice of default was recorded on April 2, 2015, it was
rescinded on October 1, 2015. Smith Decl. Exs. E, M, N, Q;
Defendant's Request for Judicial Notice, Exs. U-W.
Therefore, any alleged violation of the HBOR prohibition on
dual tracking, as it was written at the time, was rendered
moot by Wells Fargo rescinding the notice of sale. Tuan
Anh Le v. Bank of New York Mellon, 152 F.Supp.3d 1200,
1214-15 (N.D. Cal. 2015) (citing Cal. Civ. Code §
2924.12); Monterossa v. Superior Court of Sacramento
County, 188 Cal.Rptr.3d 453, 457-58 (Cal.Ct.App. 2015).
Choudhuri also points to her renewed loan modification
application on June 22, 2015, in which she claimed a material
change in her finances. But Wells Fargo's rescission of
the notice of sale applies to any dual tracking claim based
on her later loan modification application as well. Moreover,
Choudhuri does not provide evidence of having sent Wells
Fargo new financial information in support of her renewed
loan modification application, so Choudhuri cannot succeed on
a claim for dual tracking on that basis. Salazar v. U.S.
Bank National Association, No. ED CV 14-514-GHK (DTBx),
2015 WL 1542908, at *3-5 (C.D. Cal. Apr. 6, 2015).
Estoppel & Negligence
lack of evidence also defeats her other claims. Her claim for
promissory estoppel is premised on her allegation that Wells
Fargo employee Treena Berlinsky promised her in early January
2015 that her loan modification would be approved if there
were a second income to support her household. However,
Choudhuri has not submitted evidence that the promise was
sufficiently definite to support a promissory estoppel claim.
To be enforceable, the promise must be "definite enough
that a court can determine the scope of the duty, and the
limits of performance must be sufficiently defined to provide
a rational basis for the assessment of damages."
Garcia v. World Savings, FSB, 107 Cal.Rptr.3d 683,
696 (Cal.Ct.App. 2010) (internal quotation marks omitted).
Without adequate evidence of what obligations the parties
agreed to, it is not possible to assess whether they
satisfied those obligations. See id. And even if
Berlinsky made a sufficiently definite promise, Choudhuri has
not presented evidence sufficient to create a genuine fact
issue about whether her reliance on the promise was
reasonable and foreseeable. See Advanced Choices, Inc. v.
Dep't of Health Services, 107 Cal.Rptr.3d 470, 479
(Cal.Ct.App. 2010); see also Restatement (Second) of
Contracts § 90 (1981).
negligence, even assuming Wells Fargo had a duty of care,
Choudhuri has not presented evidence that her increased loan
payments were proximately caused by Wells Fargo breaching
such a duty of care. See Thomas v. Stenberg, 142
Cal.Rptr.3d 24, 29 (Cal.Ct.App. 2012).
Wells Fargo's motion for summary judgment is granted as
to all of the remaining claims, and Choudhuri's motion
for summary judgment is denied.