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Henderson v. Wells Fargo Bank, N.A.

United States District Court, D. Connecticut

February 21, 2017

GENEVIEVE HENDERSON, Plaintiff,
v.
WELLS FARGO BANK, N.A., Defendant.

          RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          JANET BOND ARTERTON, U.S.D.J.

         This suit, brought by pro se Plaintiff Genevieve Henderson ("Ms. Henderson") against Defendant Wells Fargo Bank, N.A. ("Wells Fargo"), alleges breach of contract, unfair trade practices, misrepresentation and infliction of emotional distress, arising out of Wells Fargo's foreclosure on Plaintiffs house.[1] (See Fourth Am. Compl. [Doc. # 48].) Wells Fargo now moves [Doc. # 94] for summary judgment on all of Ms. Henderson's claims. For the following reasons, Defendant's Motion is granted.

         I. Background[2]

         A. Undisputed Facts

         1. The Origination of the Loan and the Default

         On December 31, 2007 Plaintiff refinanced an existing mortgage on her home located in Middlefield, Connecticut (the "Property") by executing a promissory note to Wachovia Mortgage Corporation ("Wachovia") in the principal amount of $180, 000. (See Ex. A-l (Note) to Penno Aff. [Doc. #94-3].) Wells Fargo subsequently acquired Wachovia and took over the loan. (See Ex. B-l (Henderson Tr.) to Counsel's Aff. [Doc. # 94-4] at 91:18-92:3; Ex. B-7 (Mulder Aff.) to Counsel's Aff. ¶ 4.) In early 2010 Plaintiff contacted Wells Fargo to inquire about a reverse mortgage or a loan modification in an effort to avoid default because she could no longer afford her monthly payments. (See Henderson Tr. at 94:9-24, 109:2-21.) During that conversation Plaintiff was advised that Wells Fargo could review her for a HAMP (the "Home Affordable Modification Program") loan modification, (Def.'s D. Conn. L. Civ. R. 56a(1) Stmt J 20 ("Def.'s LR 56"); Pl.'s D. Conn. L. Civ. R. 56a(2) Stmt ¶ 20 ("Pl.'s LR 56").) However, Plaintiff did not submit any documents at that time, but instead allegedly provided information over the phone. (Henderson Tr. at 109:22-25.)

         At no time did Wells Fargo instruct or advise Plaintiff to cease making payments on the mortgage. (Def.'s LR 56 ¶ 15; Pl.'s LR 56 ¶ 15; Henderson Tr. at 109:4-14.) However, Plaintiff defaulted on the loan in March 2010 after failing to make the required monthly payment. (Def.'s LR 56 ¶ 12; Pl.'s LR 56 ¶ 12.)[3] Ms. Henderson also failed to make the required payment in April 2010. (Def.'s LR 56 ¶ 13; Pl.'s LR 56 ¶ 13.) As a result of the default, Wells Fargo sent Plaintiff an acceleration notification dated April 18, 2010 informing her that the loan was in default for failure to make the required payments and that unless she paid the amount past due Wells Fargo would accelerate the loan. Plaintiff has not made a full monthly payment, nor cured the default, since missing the March 2010 payment. (Def.'s LR 56 ¶14; Pl.'s LR 56 ¶ 14.) At some point in April or May 2010 Ms. Henderson did attempt to make the May payment in an effort to avoid foreclosure but Wells Fargo refused to accept it because Plaintiff was required to pay the total amount necessary to bring the loan current in light of her nonpayment. (Def.'s LR 56 ¶¶ 17-18; Pl.'s LR 56 ¶¶ 17-18.)

         Then, in May 2010 Wells Fargo began reviewing Ms. Henderson for a HAMP.[4] (Def.'s LR 56 ¶ 22.) Plaintiff admits that Wells Fargo never guaranteed or promised her that she would be eligible for, qualify for, or receive a loan modification, although she contends that it did lead her to believe she would qualify for the HAMP modification. (Pl.'s LR 56 ¶ 21.)

         2. The Foreclosure Action and Mediation

         On August 6, 2010 Wells Fargo initiated a foreclosure action against Plaintiff in Connecticut state court. (Def.'s LR 56 ¶ 29; Pl.'s LR 56 ¶ 29.) On March 11, 2013 Wells Fargo filed a motion for judgment of strict foreclosure. (Def.'s LR 56 ¶ 84; Pl.'s LR 56 ¶ 84.) Plaintiff then commenced the instant action on March 19, 2013. (Def.'s LR 56 ¶ 85; Pl.'s LR 56 ¶ 85.) On August 31, 2015, the state court entered judgment of strict foreclosure in Wells Fargo's favor. (Def.'s LR 56 ¶ 90; Pl.'s LR 56 ¶ 90.) Ms. Henderson subsequently appealed that decision to the Connecticut Appellate Court where it is currently pending. (Def.'s LR 56 ¶ 91; Pl.'s LR 56 ¶ 91.)

         As part of the Foreclosure action, Wells Fargo and Ms. Henderson participated in the Connecticut state court foreclosure mediation program (the "Mediation") with the purpose of attempting to resolve the Foreclosure Action before it went to judgment. (Def.'s LR 56 ¶ 31; Pl.'s LR 56 ¶ 31.) Plaintiff and Defendant attended and participated in several mediation sessions between September 2010 and May 2011, during which they actively negotiated potential settlement options including, but not limited to, considering Plaintiff for a HAMP loan modification or other non-HAMP options. (Def.'s LR 56 ¶ 32; Pl.'s LR 56 ¶ 32.). Plaintiff never filled out or submitted an application for a reverse mortgage with Wells Fargo. (Def.'s LR 56 ¶ 34; Pl.'s LR 56 ¶ 34; Henderson Tr. at 188:2-4.) The formal Mediation ended on May 10, 2011, the reason for which is disputed.[5](Ex. B-10 (Foreclosure Mediator's Final Report) to Counsel's Aff.)

         3. The Forbearance Agreement

         Nearly a month after the Mediation ended Wells Fargo offered Ms. Henderson the Special Forbearance Agreement (the "Forbearance Agreement" or the "Agreement"). (See Ex. A-10 (the "Four-Payment Agreement") to Penno Aff.) The parties agree that the Agreement was sent to Plaintiff in a three-page packet, which included a cover letter with instructions. (Def.'s LR 56 ¶ 40; Pl.'s LR 56 ¶ 40.) Under the Agreement, Wells Fargo agreed to "temporarily accept[ ] reduced installments ... as outlined in section 5" of the Agreement. (Ex. A-3 to Pl.'s Opp'n to Def.'s Mot. for Summary Judgment at 3; Ex. A-10 to Penno Aff. at 3.) Section 5 required Plaintiff to make four monthly payments - three payments of $304.11 and a fourth payment of $47, 556.82. (Ex. A-10 to Penno Aff. at 3; Def.'s LR 56 ¶ 41.)

         The Agreement warned that "[u]pon successful completion of the Agreement, [Plaintiffs] loan [would still] not be contractually current. (Ex. A-10 to Penno Aff. at 3.) Since the installments may be less than the total amount due, [Plaintiff] may still have outstanding payments and fees." (Id.) It continued: "Any outstanding payments and fees will be reviewed for a loan modification, based on investor guidelines, this will satisfy the remaining past due payments on your loan and we will send you a loan modification agreement. An additional payment may be required." (Id.) Section 3 of the Agreement stipulated: "The lender is under no obligation to enter into any further agreement, and this Agreement shall not constitute a waiver of the lender's right to insist upon strict performance in the future." (Id.) Under Section 4:

All of the provisions of the Note and Security Instrument, except as herein provided, shall remain in full force and effect. Any breach of any provision of this Agreement or non-compliance with this Agreement, shall render the forbearance null and void. The lender, in its sole discretion and without further notice to [Plaintiff], may terminate this Agreement. If the Agreement is terminated the lender may institute foreclosure proceedings according to the terms of the Note and Security Instrument. In the event of foreclosure, [Plaintiff] may incur additional expenses of attorney's fees and foreclosure costs.

(Id.)

         The cover letter explained:

This is not a waiver of the accrued or future payments that become due, but a trial period showing you can make regular monthly payments. . . . Any outstanding payments and fees will be reviewed for a loan modification. If approved for a loan modification, based on investor guidelines, this will satisfy the remaining past due payments on your loan and we will send you a loan modification agreement. An additional payment may be required. Any installments received will be applied to the unpaid principal balance on the loan. . . . If your loan is in foreclosure, we will instruct our foreclosure counsel to suspend foreclosure proceedings once the initial installment has been received, and to continue to suspend the action as long as you keep to the terms of the Agreement. Upon full reinstatement, we will instruct our foreclosure proceedings [sic] and report to the credit bureaus accordingly.

(Id.)

         Plaintiff signed and returned the Forbearance Agreement to Defendant on June 27, 2011, with handwritten notes on pages one and three of the Agreement that noted it was "sent certified mail return receipt" and that Plaintiff "enclosed [her] 1st installment of $304.11 (ck # 1093) due July 15, 2011 as set forth on Page 1, Paragraph 2 of this Agreement" respectively. (Def.'s LR 56 ¶ 46-47; Pl.'s LR 56 ¶ 46-47.) Plaintiff timely made all three of the payments of $304.11. (Def.'s LR 56 ¶ 41, 48; Pl.'s LR 56 ¶ 41, ...


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