Mortgage Foreclosure Action • Diversion Program • Primary Residence

Wells Fargo Bank, N.A. v. Edward Okrah, PICS Case No. 14-0043 (C.P. Lackawanna Jan. 8, 2014) Nealon, J. (20 pages).

Plaintiff Wells Fargo moved to remove the mortgage foreclosure action from the Court of Common Pleas of Lackawanna County Residential Mortgage Foreclosure Diversion Program as the subject property is not the borrower’s “primary residence.” The motion to remove is denied.

On January 11, 2007, defendant Edward Okrah purchased a residential property in Lackawanna County for $190,800.00; he secured a mortgage through HCI Mortgage for $189,287.00. The mortgage through HCI was discharged following a refinance with Access National Mortgage. This mortgage was assigned to Wells Fargo pursuant to a recorded assignment of mortgage.

In an effort to supplement income, Okrah accepted part-time employment as a security officer for the New York Yankees’ home games; during the eighty-one annual home games, Okrah resided in an apartment in Bronx, N.Y. Okrah resided at the Lackawanna property for the remainder of the year.

Wells Fargo commenced foreclosure actions on June 4, 2012 following a default in the December 2011 payment and in accordance with the acceleration of debt provisions contained in the mortgage contract. Both the complaint and Okrah’s answer indicated the Lackawanna property as the residential property. Following the initiation of the foreclosure action, the matter was forwarded to the Residential Mortgage Foreclosure Diversion Program, a program designed to assist borrowers retention of their property. The requirement for the program is that the home be the borrower’s “primary residence.”

Okrah requested a conciliation conference through the program and a case management order was filed. After 11 months of adjourned conciliation conferences and numerous document productions by Okrah, Wells Fargo denied the loan modification stating the Lackawanna property was not his “primary residence” as evidenced by Okrah’s pension benefits, tax returns and paystubs reflecting a Bronx address. Okrah provided a driver’s license, utility bills and Chapter 4, section B of HUD 4155.1 evidencing his Lackawanna address as his primary residence.

The court held the Lackawanna property was Okrah’s primary residence as he resided in the home for more than three-quarters of the year; the fact that his municipal pension, credit union and tax statements indicated a Bronx apartment did not alter the Lackawanna property being designated as his “primary residence.” Further, Okrah resided at Lackawanna for the majority of the year, a total of 284 days while only residing in the Bronx apartment for the 81 days he was a security officer. As such, the motion to remove is denied.