A homeowner fighting foreclosure can raise the defense that Wells Fargo Bank did not act in good faith in handling her mortgage-modification request.
Given the bank’s “apparent unreasonable actions, … equity demands that she be able to proceed … with her defenses against foreclosure,” Bergen County Assignment Judge Peter Doyne wrote in an opinion released Monday.
Though homeowner Vicki Schultz might not have a right to receive a modification, “she does have the equitable right to be treated with fairness,” Doyne wrote in Wells Fargo Bank v. Schultz, BER-F-17720-12.
Instead, she met with “months of frustrating and conflicting responses, or lack thereof,” including “form letters, duplicative requests for documentation, misleading information, and what appears, at least at first blush, generally unfair treatment regarding the available loan modifications,” he said.
Doyne added that “even though it is not evident at this point whether [Wells Fargo] is guilty of unclean hands, its behavior toward Vicki is at the least highly suspect.”
In 2004, Schultz borrowed $506,250 from World Savings Bank, which later became Wachovia Mortgage and is now a division of Wells Fargo. The loan was secured by a mortgage on her Oakland home. Her husband, J. Stuart Schultz, did not sign the note but his signature appeared on the mortgage.
In June 2010, Stuart’s employer Longview Financial Group Inc. folded, leaving both spouses unemployed. They defaulted on Dec. 6, 2010.
After being accepted to Wachovia’s “Unemployment Program,” Vicki was put on a modification plan that required six monthly payments of $1,508 starting in February 2011 and came with the promise that as long as she complied, her home would not be foreclosed.
In May 2011, the bank asked for proof of unemployment benefits by June 6, 2011, so the plan could be extended past October.
Vicki certified she faxed the documents on May 26 and spoke with a bank representative who confirmed receipt. But on June 9, 2011, she got a “Final Decision” letter denying the extension for failure to send the information.
The bank called her on June 22, saying she needed to dispute the termination in writing. She did so that day.
Advised by the bank to also enroll in the federal Home Affordable Modification Program (HAMP), she applied by telephone, sent in documents and twice resent them and additional ones at the bank’s behest.
In August, the bank again refused to extend the original plan because the July payment was late, which Vicki claimed was the result of being denied the extension. The bank also refused a HAMP modification, saying she failed to provide requested documents.
A series of telephone messages she left with her contact at the bank allegedly met with no answer, and the next month she got a letter advising her that the person she called was no longer handling her account.
But not long after that and shortly after Vicki received a notice of intent to foreclose — “almost cruelly,” said Doyne, noting it was the second such letter — that same employee sent her a letter saying the bank was committed to helping her retain her home.
Vicki reapplied for HAMP, faxed the asked-for information and, after being told she hadn’t, did so again.
After several more rounds of calls, letters and faxed documents, Vicki says she was told on March 22, 2012, that her file was complete. But a week later, the bank denied the modification and said it could not proceed further.
For six more months, Vicki went back and forth with bank employees by telephone, fax and mail, but she asserts that she never heard back after the last batch of documents submitted, in September 2012.
“Incredibly, after almost a year of submitting documents and generally ‘getting the runaround’ … , Vicki finally was informed she had submitted all the necessary documents, only to be informed that the loan modification she applied for was ‘not available at this time,’” wrote Doyne. “Again, while Vicki may not have a legal right to the HAMP modification, she does have the equitable right to be treated with fairness” and the bank “has apparently failed in this regard.”
In Monday’s ruling, Doyne blocked some defenses, granting the bank’s motion to enforce a 2010 national class-action settlement against Wells Fargo over its “Pick-A-Payment” adjustable rate mortgages.
Under the settlement in Mandrigues v. World Savings, Inc., N.D. Cal. Case No. 07-cv-4497, Wells Fargo was supposed to provide $67 million in loan modifications. Vicki received $178.
Thus, any defenses or claims based on the origination of the loan were precluded, although her husband could raise them because he was not a party to the settlement, Doyne found.
Wells Fargo lawyer Elizabeth Kim of Reed Smith in Princeton did not respond to a request for comment. The Schultzes’ lawyer, David Schrader of Schrader & Schoenberg in South Orange, was out of the office and could not be reached.
Schultz is the second recent opinion by Doyne addressing good faith in the context of mortgage modification. On Feb. 5, he held in Hudson City Savings Bank v. Colyer, BER-F-1214-12, that a lender does not necessarily establish good faith simply by following its own internal procedures.