Yeh Ho v. Wells Fargo Bank, N.A.

KAREN C. YEH HO, Plaintiff, v. WELLS FARGO BANK, N.A., Defendant.

CASE NO. 15-81522-CIV-MARRA

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

February 19, 2020

OPINION AND ORDER ON MOTION FOR SUMMARY JUDGMENT

THIS CAUSE is before the Court upon Defendant Wells Fargo Bank, N.A.'s Motion for Summary Final Judgment [DE 71]. The Court has carefully considered the motion, response, reply, the entire Court file, and is otherwise fully advised in the premises.

Background

Following this Court's dismissal of Plaintiff's Complaint in its entirety, the Court of Appeal for the Eleventh Circuit reversed the dismissal of Plaintiff's Real Estate Settlement Practices Act ("RESPA") claim and remanded to this Court. Defendant filed an Answer and Affirmative Defenses to the Complaint. Thereafter, Plaintiff was granted leave to file an Amended Complaint. Defendant filed a Motion to Dismiss the Amended Complaint, and this Court entered an Order granting Defendant's Motion to Dismiss as to Plaintiff's Fair Housing Act claim (Count II), and denied the Motion to Dismiss as to Plaintiff's Equal Credit Opportunity Act claim (Count I) and her RESPA violation claim (Count III). Plaintiff did not file a Second Amended Complaint, therefore, the remaining claims before the Court are Count I alleging a violation of Equal Credit Opportunity Act, and Count III alleging a violation of RESPA. Defendant moves for summary judgment as to both claims.

Undisputed Material Facts¹

1. On November 30, 2007, Plaintiff executed a promissory note ("Note")² secured by a mortgage ("Mortgage")³ executed by Plaintiff and her husband, Wing Kei Ho (collectively, "Borrowers") on the subject Property. The loan was subsequently transferred to Defendant, who filed a foreclosure complaint on February 16, 2012 against the Borrowers alleging payment defaults since August 1, 2011. DE 41 at 83-91. The loan related to the servicing of a residential mortgage. DE 41 at 1, ¶ 1.

2. Based on a review of their records, Defendant offered Plaintiff a streamlined modification trial period plan in July 2013 ("Offer Letter"). DE 72-1, see also DE 41 at 241-248. The Offer Letter informed her that she was eligible for a loan modification as an option to stay in her home and, if she wanted to pursue this option, the offer required her to make timely payments on her Mortgage under a Streamlined Modification Trial Period Plan ("Trial Period Plan" or "TPP"). Id.

3. The TPP required three payments in the amount of $2,495 due on September 1, 2013, October 1, 2013, and November 1, 2013. Plaintiff made three timely TPP payments. DE 78, ¶ 13.

4. In November 2013, Plaintiff was approved for a loan modification and Defendant generated a Loan Modification Agreement ("Modification Agreement" or "Agreement"). DE 41 at 142-156; DE 72, Ex. B. The Modification Agreement required the signatures of Plaintiff and Wing Kei Ho - Plaintiff's husband and co-signor on the Mortgage. Id.

5. Defendant received back the Modification Agreement on December 6, 2013 with only Plaintiff's signature. Wing Kei Ho had not signed the Modification Agreement although his signature was expressly required by the terms of the Modification Agreement. DE 41 at 142-156.

6. Plaintiff states she sent back the copy of the loan modification she received with her signature notarized by "a Florida Notary that can be found when you do a Notary search." DE 78, ¶ 16. Plaintiff states that she thought if she "wait[ed] for [Defendant's] notary any longer," the delay would result in her "sending in payment and package late which [Defendant] can use as rejection." Id., ¶ 15.

7. Plaintiff alleges that after Defendant's receipt of the Agreement on December 6, 2013, it accepted two more payments under the TPP in December 2013 and January 2014, but rejected payments made thereafter. DE 41 at 10, ¶¶ 16, 19-20.

8. Plaintiff "never got a written confirmation of [Defendant]'s receipt of the agreement or any indication of whether the agreement was complete or other loan modification options were available." Yeh Ho v. Wells Fargo Bank, N.A., 739 F.App'x 525, 527 (11^th Cir. 2018).

9. Plaintiff avers that on December 6, 2013, Defendant told her "that they received the permanent streamline loan modification package and the December 2013 check. I asked if there is any problem. The representative state no problem." Plaintiff Affidavit ("Aff."), DE 78, ¶ 23.

10."On December 17, 2014, [Plaintiff] received the first written response from [Defendant] about her loan modification agreement. This was over a year after she'd sent the agreement to [Defendant] and after her home was sold. In the letter, [Defendant] explained it rejected [Plaintiff's] loan modification agreement as incomplete because it was unsigned by her husband." Yeh Ho v. Wells Fargo Bank, N.A., 739 F.App'x 525, 527 (11^th Cir. 2018).

11.Specifically, the December 17, 2014 letter ("Denial Letter") stated

Upon successful completion of the trial payment plan, a modification agreement was approved. On November 26, 2013, we sent the original packet with the terms of the modification to First American Notary and a copy of the modification packet to you.

The original modification packet was sent to the notary who was to contact you to set up a time to sign the modification documents. The loan modification copy sent to your attention included instructions that a notary would be in contact with you to sign the original modification documents.

From November 27, 2013, through December 06, 2013, we attempted to contact you via telephone to see if you had been contacted by First American Notary service to establish a time to sign the modification documents.

On December 06, 2013, we received the signed agreement from you. However, upon review of the signed agreement, we found that Wing Kei Ho did not sign and the agreement was stamped "copy". As a result, the signed agreement was not accepted.

From December 09, 2013, through December 31, 2013, we attempted multiple times to contact you via telephone to inform you that the following items were needed to complete the loan modification:

• We received a Quit Claim Deed but also needed a divorce decree• Signed redrafted modification documents or original modification documents signed by both you and Wing Kei Ho

• Your marital status

We're unable to complete a modification for your account as you did not return the original signed modification documents. As a result, your account was removed from this review on January 13, 2014.

DE 72 at 33-34, Ex. E.

12.On May 27, 2014, the foreclosure case was set for a non-jury trial on July 17, 2014. DE 10, Ex. A, Doc. 85. Just two days before trial, Plaintiff, through counsel, filed a motion for continuance, which was denied at a hearing the morning of trial. DE 41 at 138-140, 157-158.

13.On the day of trial, counsel for Defendant and the Borrowers' attorney (apparently without Plaintiff's knowledge or consent) executed a stipulation to the entry of judgment in favor of Defendant ("Stipulation to Judgment") whereby Defendant agreed to request a sale date no less than one-hundred twenty days from the date of the judgment and the Borrowers (i) acknowledged Defendant's standing; (ii) admitted their default; (iii) admitted Defendant fulfilled all conditions precedent; (iv) admitted their interest in the subject property was inferior; (v) withdrew all affirmative defenses or counterclaims regarding fulfillment of conditions precedent; (vi) acknowledged the validity of the debt; (vii) consented to entry of judgment; and (viii) waived all rights or defenses to object or otherwise impede or delay the foreclosure sale and issuance of the certificate of title. DE 41 at 159-162. Accordingly, a final judgment was entered ("Final Judgment"), setting a foreclosure sale date of November 14, 2014. DE 41 at 163-169.14.On October 14, 2014, an order was entered permitting counsel to withdraw from the foreclosure action. DE 41 at 183. On that same day, Plaintiff appears to have filed a motion to vacate the sale and set a trial date. DE 41 at 181. Similarly, on November 10, 2014, Plaintiff filed yet another motion to cancel the sale. DE 41 at 184. On November 12, 2014, the foreclosure court denied Plaintiff's requests to cancel the sale. DE 41 at 185.

15.On November 14, 2014, pursuant to the Final Judgment, the Property was sold at a foreclosure sale ("Foreclosure Sale") to Federal National Mortgage Association ("FNMA") for a credit-bid of $250,100. DE 10, Ex. A, Doc 126.

16.On January 16, 2015, the foreclosure court denied Plaintiff's request to vacate Final Judgment or rescind the Foreclosure Sale. DE 41 at 226.

17.On January 23, 2015 the Borrowers filed a Notice of Appeal with the Fourth District Court of Appeal. DE 10, Ex. B. On February 13, 2015, Plaintiff filed her brief. Id. Following the briefing, on October 1, 2015 the Appellate Court entered its decision affirming the foreclosure on the Property. Id.

18.On November 4, 2015, Plaintiff filed her Complaint against Defendant in this Court. DE 1. On August 29, 2016, this Court entered an Order granting Defendant's Motion to Dismiss and dismissed Plaintiff's Complaint in its entirety. DE 15. Plaintiff appealed the Order of Dismissal to the Eleventh Circuit Court of Appeal. DE 21.

19.On appeal, the Eleventh Circuit affirmed the dismissal of all causes of action except for the RESPA claim. DE 25. In sum, the appellate Court held that the claim was not barred by Florida's litigation privilege and that Plaintiff hadalleged facts sufficient to state a claim under RESPA. Id. Accordingly, the Eleventh Circuit remanded the action as to the RESPA claim to this Court for further proceedings. Id. This Court filed an Order reopening the case on July 25, 2018. DE 26.

Standard of Review

A court must grant summary judgment when, viewing the evidence and factual inferences in the light most favorable to the nonmoving party, the court finds that there is no genuine issue as to any material fact and that the movant is entitled to...