BENJAMIN COHEN, Bankruptcy Judge.
The matter before the Court is the defendant Wells Fargo, N.A.'s Motion for Summary Judgment filed on April 25, 2013. A.P. Docket No. 15. After notice, a hearing was held on September 12, 2013. Appearing were Ms. Catherine Crosby Long, the attorney for the defendant; Ms. Eugenia W. Hamilton, the plaintiff's attorney; and the plaintiff, Ms. Penny Lynn Morris.
The pending motion was filed in response to the Debtor's Complaint Against Wells Fargo for Violation of the Stay, filed May 13.2012, A.P. Docket No. 1.
The matter was submitted on the records in this case and in Bankruptcy Case No. 11-03628-BGC-7, the briefs of counsel, and attached exhibits. Based on those submissions, the Court finds that there are no genuine issues of material fact, and that the defendant is entitled to judgment as a matter of law.
On May 15, 2004, the debtor-plaintiff, Ms. Penny Morris obtained a loan for $133,000 from Americapital Funding Corp. Repayment of the loan was secured by a mortgage on her residence located at 1816 Valgreen Lane in Birmingham, Alabama. The note executed by Ms. Morris in connection with that loan required her to repay the amount borrowed, with interest at the rate of 5.875% per annum, over a period of 30 years in monthly installments of $786.75 each. When she obtained the loan, Ms. Morris was gainfully employed and had the ability to make her loan payments.
On April 30, 2005, Wells Fargo became the servicer of the note and mortgage.
In 2006, Ms. Morris contracted rheumatoid arthritis which impeded her ability to work full time resulting in a dramatic reduction of her income. By July 2008, she had been rendered completely disabled by the disease, which required her to apply for social security disability payments. Her application was granted, but payments did not begin until about six months later. Around that time, she also began to receive social security benefits for the support for her minor son.
Ms. Morris was not able to satisfy the terms of the "Special Forbearance Agreement;" therefore, the loan remained in default. Seeking to address her mortgage arrearage, on September 13, 2009, Ms. Morris executed another agreement with Wells Fargo, this time a "Home Affordable Modification Trial Period Plan." Brief in Support of Motion for Summary Judgment, A.P. Docket No. 16, Exhibit C. The copy of that agreement attached to Wells Fargo's motion contains no information about the amount of the arrearage, or how the payments were to be caught up, or what other modifications, if any, were to be made to the loan. It is merely a form document, bearing Ms. Morris' signature and handwritten date, with standard printed language and blanks to be filled in for custom information related to the loan in question, which had not been filled in.
While it was not possible to tell what the terms of the second agreement between Ms. Morris and Wells Fargo were relating to catching up the loan arrearage, it is possible to determine that the loan remained in default and the missed payments were not paid. This condition led to a third loan modification agreement between the parties on March 19, 2010. Brief in Support of Motion for Summary Judgment, A.P. Docket No. 16, Exhibit D. Under that agreement, entitled "Loan Modification Agreement," the parties agreed that the unpaid balance due on the loan was $126,606.73; that Ms. Morris would not have to make a payment until June 1, 2010; that her monthly payments would be increased to $820.73; that the maturity date on the loan would not change but would remain June 1, 2034; and that she would pay any balance that remained on the loan on the maturity date.
Again, Ms. Morris was not able to make the payments in the agreement and bring her mortgage payments current. Her efforts were rendered even more difficult in April 2011 when her minor son reached 18 years old, and she stopped receiving social security assistance for him.
Based on the parties' contracts and the missed payments, Wells Fargo accelerated the note then scheduled and noticed a foreclosure sale.
Ms. Morris filed the pending Chapter 7 bankruptcy case on July 21, 2011, prior to the scheduled foreclosure sale. Wells Fargo filed a Motion for Relief from Automatic Stay. Case Docket No. 26. The fact summary filed by Wells Fargo in support of its motion indicated at the time Ms. Morris was $3,347.01 in arrears on her mortgage payments. Fact Summary for Motion for Relief From Automatic Stay in Chapter 7 and 13 Cases, Case Docket No. 27. After notice, a hearing was held on September 27, 2011. Appearing were Ms. Morris and her attorney, Ms. Eugenia Hamilton, and Mr. Tom Tutten, one of the attorneys for Wells Fargo. On September 30, 2011, this Court entered an order granting the motion for relief. Case Docket No. 32.
Id.
That motion was heard on November 29, 2011. Appearing were Ms. Morris and her attorney, Ms. Eugenia Hamilton. No one appeared for Wells Fargo.
On December 2, 2011, the Court entered an order that set aside the order granting relief from the stay to Wells Fargo and extended the stay with respect to the Wells Fargo debt and mortgage for 180 days. The stay extension was based on Ms. Morris' representation that a "reasonable" loan modification could be achieved and was relatively imminent. The Court's Order explained:
Order Setting Aside September 30, 2011, Lift of Stay Order, Case Docket No. 40.
The Court's stated purpose of the stay reinstatement and extension was to permit the parties an adequate opportunity to finalize the anticipated loan modification referred to by the debtor at the hearing. The order concluded:
Based on the above, it is
Id.
According to the court system's certificate of notice, which is intended to reflect
In contrast, and what the Court did not know then, but knows now is that the order setting aside the lift stay order was not sent specifically to Wells Fargo's foreclosure attorney, who was different from and not on the bankruptcy attorney email list. Consequently, in a classic case of the left hand being unaware of what the right was doing, the foreclosure attorney mailed a letter to Ms. Morris on December 7, 2011, notifying her that foreclosure had been initiated and that, in accordance with Alabama law and the mortgage, the foreclosure would be advertised in the Alabama Messenger, a local newspaper which primarily carries legal notifications and the like. Response to Defendant's Motion for Summary Judgment, A.P. Docket No. 34, Exhibit D.
The Court does not know when Ms. Morris received that letter as that information was not contained in the affidavit she submitted in response to Wells Fargo's summary judgment motion; however, because the foreclosure letter reflects that a copy of the same was also sent to Ms. Hamilton, Ms. Morris' attorney, the Court does know that the foreclosure letter must have been received either December 8 or 9 as Ms. Hamilton emailed Wells Fargo's attorney on December 9 to inform her that the stay had been reinstated. Id. While the reply Ms. Hamilton received was a confession by Wells Fargo's foreclosure attorney that she had no knowledge of the order reinstating the stay, it included a promise by Wells Fargo's attorney to immediately terminate the foreclosure process — which was done. That email included, "Thank you for your email and for notifying us that the bankruptcy stay has been reinstated. We are closing our foreclosure file and notifying our client." Id.
On January 30, 2012, Wells Fargo offered Ms. Morris another loan modification. This one would have reduced her monthly payment to $795.33. Brief in Support of Motion for Summary Judgment, A.P. Docket No. 16, Exhibit 1. The Declaration of Amanda Weatherly (attached to that brief as A.P. Docket No. 16-1) includes, "On January 30, 2012, Plaintiff was approved for a third loan modification with a first payment date of March 1, 2012. The modification reduced the monthly payments on the Loan to $795.33 by extending the term of the Loan; this was necessary to provide Plaintiff with a monthly payment amount that she could afford based on the financial information she provided to Wells Fargo." Id.
In the Declaration of Penny Morris (Ms. Morris' affidavit) filed in response to the pending motion for summary judgment, Ms. Morris explained why she rejected this latest, and last loan modification offer. She stated:
Response to Defendant's Motion for Summary Judgment A.P. Docket No. 34, Exhibit A at 6.
As Ms. Morris explained, she rejected the proffered loan modification. Shortly thereafter, on May 13, 2012, she filed her Complaint Against Wells Fargo for Violation of the Stay, A.P. Docket No. 1. After including the conclusion to this Court's December 2, 2011, Order (quoted above), the complaint alleged:
Id. (parentheticals added).
The standards for resolving issues within the context of a summary judgment motion are outlined in the Court of Appeals for the Eleventh Circuit decision in Fitzpatrick v. City of Atlanta, 2 F.3d 1112 (11th Cir.1993). This Court has applied those standards to the pending matter.
Section 362(a) of the Bankruptcy Code provides, in applicable part, that the filing of a bankruptcy petition operates automatically as a stay of
11 U.S.C. § 362(a).
Section 362(k) provides that "[a]n individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys' fees, and, in appropriate circumstances, may recover punitive damages." 11 U.S.C. § 362(k). That section requires that in order for an award of damages to be made to an individual debtor for a stay violation, the proof must show that the debtor was injured by the stay violation and that the violation of the stay by the defendant was willful. A violation of the automatic stay is a "willful violation" if "... the violator (1) knew of the automatic stay and (2) intentionally committed the violative act, regardless whether the violator specifically intended to violate the stay." Jove Eng'g, Inc. v. Internal Revenue Serv., 92 F.3d 1539, 1555 (11th Cir. 1996).
Section 362(k) authorizes an award of punitive damages for stay violations only in "appropriate circumstances." The phrase "appropriate circumstances" has been interpreted to require the violator's acts to have been egregious, vindictive, malicious, or accompanied by bad faith. "[E]gregious, intentional misconduct
By its plain language, 11 U.S.C. § 362(k) authorizes an award of "actual damages, including costs and attorneys' fees...." only to "[a]n individual injured by [a] willful violation of a stay...." 11 U.S.C. § 362(k)(emphasis added). Conversely, it does not, by its terms, authorize an award of "actual damages, including costs and attorneys' fees...." to an individual who has not been injured by a violation of the stay. In re Dawson, 390 F.3d 1139, 1150 (9th Cir.2004).
Again, Judge Hull explains, to recover for significant emotional distress requires more than, "generalized evidence [of being] `stressed out.'" In re Lodge at 1272. And, "generalized evidence, without any additional, specific detail, does not show that the [debtors] suffered significant emotional distress...." Id. (parenthetical added). Judge Hull concluded, while not definitive, "corroborating evidence may not be necessary to prove emotional distress where the violator engaged in egregious conduct and significant emotional distress is readily apparent." Id. But definitely, where the violator's conduct was not egregious and significant emotional distress is not, therefore, readily apparent, corroboration requires more than the plaintiff's generalized claims or descriptions of emotional distress. Hence, failure of a plaintiff to corroborate alleged significant emotional distress injuries with more than his or her own affidavit containing generalized claims or descriptions of emotional distress will not withstand the defendant's summary judgement motion where "[n]othing else in the record makes it obvious that the [plaintiff] suffered significant emotional distress." Id.
As is obvious, all of the above-standards are quite stringent. They would be difficult
In her complaint, Ms. Morris identifies four ways she contends Wells Fargo violated the extended stay:
With respect to this contention, as quoted above, Ms. Morris alleged:
Complaint Against Wells Fargo for Violation of the Stay, A.P. Docket No. 1.
The only evidence before the Court in this regard is Ms. Morris' one reference to
Response to Defendant's Motion for Summary Judgment, A.P. Docket No. 34, Exhibit A at 5.
As explained below, while the facts may substantiate an uninvited, unpleasant, and bothersome imposition on Ms. Morris, under the law in this Circuit, they do not support a willful violation of the stay.
First, after Well's Fargo's foreclosure attorney became aware of this Court's reinstatement of the stay, she stopped the pending foreclosure. The facts are clear. That action occurred shortly, if not immediately, after the attorney learned of the stay condition. The exhibits attached to Ms. Morris' response to Wells Fargo's summary judgment motion establish that Ms. Rutledge, the foreclosure attorney, terminated the foreclosure on December 9, 2011, and, on that same date, informed Ms. Morris' attorney that the foreclosure had been terminated. Response to Defendant's Motion for Summary Judgment, A.P. Docket No. 34, Exhibit D. The fact that the foreclosure process was terminated on December 9, 2011, is also attested to by Ms. Amanda Weatherly, a Vice President of Loan Documentation for Wells Fargo, in her affidavit which the bank submitted in support of its motion. Brief in Support of Motion for Summary Judgment, A.P. Docket No. 16, Exhibit 1.
In contrast, Ms. Morris alleged in her complaint that additional action was necessary, "to stop the foreclosure sale ...," for which she, "filed a motion asking this Honorable Court to enforce the stay granted on December 2, 2011 and stop the sale." Id. As Ms. Morris correctly states, "A hearing on that motion was held on January 25, 2012." Id.
The motion referenced in Ms. Morris' complaint was her Motion to Compel Wells Fargo to Comply with Order, Restrain Wells Fargo from Proceeding with Foreclosure Sale, and Sanctions for Violation of the Stay, Case Docket No. 44, filed on January 5, 2012. In it, Ms. Morris alleges that a Wells Fargo employee told her that her home would be sold to the highest bidder on Wednesday, January 11, 2012.
While that motion may have been necessary for other reasons, the Court must find that it was not necessary to stop the impending foreclosure sale. As stated above, Ms. Rutledge, the foreclosure attorney, terminated the foreclosure on December 9, 2011, and, on that same date, informed Ms. Morris' attorney that the foreclosure had been terminated. Response to Defendant's Motion for Summary Judgment, A.P. Docket No. 34, Exhibit D. Hence, the Court must find that Ms. Morris did not have to file either a motion or the present adversary proceeding to prevent Wells Fargo from foreclosing on her home.
Furthermore, it is apparent from Ms. Rutledge's December 7 letter that Ms. Morris learned of the foreclosure well prior to January 11, 2012, the date she represented that a Wells Fargo employee told her that her home would be sold. In contrast, this Court's December 2, 2011, order reimposing the stay reflects that Ms. Morris informed the Court at the November 29, 2011, hearing that she had been informed by a Wells Fargo employee that foreclosure was imminent.
In addition, in her complaint, Ms. Morris alleges that she received the letter from
Ms. Rutledge's response to Ms. Hamilton's email indicates that she did not know that the stay had been reimposed and extended and, in initiating the foreclosure, was operating under her belief that the stay had been lifted and that the order entered by this Court on September 30, 2011, granting Wells Fargo relief from the stay was still in effect. Ms. Rutledge wrote Ms. Hamilton, "Thank you for your email and for notifying us that the bankruptcy stay has been reinstated. We are closing our foreclosure file and notifying our client." Response to Defendant's Motion for Summary Judgment, A.P. Docket No. 34, Exhibit D. That conclusion is further bolstered by the fact that Ms. Rutledge indeed terminated the foreclosure immediately upon being informed of the stay reimposition and extension by Ms. Hamilton.
On the other hand, based on the facts in this matter, the Court cannot ignore the imputed knowledge doctrine. Was Ms. Rutledge's ignorance of the stay reimposition and extension prior to instituting the foreclosure something that should be imputed to Wells Fargo or should the presumed knowledge of the stay reimposition and extension acquired by Mr. Tutten by virtue of the Court's email be also?
Of course, it is unknown when Mr. Tutten actually viewed the Court's email notifying him of the December 2 order. Moreover it is unknown whether or not he knew, when he received that email, that Ms. Rutledge had begun the foreclosure process. And, there is nothing in the record which suggests that he knew about Ms. Rutledge's foreclosure letter in time to prevent it from going out or in time to prevent advertisement of the foreclosure from being submitted for publication. Furthermore, it is unreasonable to assume that he knew about the impending foreclosure when he received and reviewed the Court's email, then sat by while Ms. Rutledge subjected herself and Wells Fargo to serious consequences.
If anything is imputed to Wells Fargo, it seems only fair, just, equitable, and logical to impute Ms. Rutledge's knowledge, or, more appropriately, her lack thereof, to Wells Fargo since it was by her volition that the foreclosure was initiated and initiation of the foreclosure process is the primary action which Ms. Morris contends violated the stay. In fact, as will be discussed in detail below, it is the only action performed by or on behalf of Wells Fargo which could possibly have constituted a stay violation; however, because of that fact, and because Ms. Rutledge did not know that the stay had been reimposed and extended, knowledge of the stay reimposition and extension could never be imputed to Wells Fargo.
In this regard, Ms. Morris has not offered evidence that Wells Fargo acquired actual knowledge from any other source in time to stop initiation and advertisement of the foreclosure. On the contrary, in her affidavit, Amanda Weatherly, the Vice
Based on the above, the Court must conclude that the actions taken by Wells Fargo, via Ms. Rutledge, were not intentional because neither knew that the stay had been put back into place. Instead, those actions were merely inadvertent and cannot provide the basis for the imposition of liability pursuant to 11 U.S.C. § 362(k).
Consequently, as to this point, the Court finds that Ms. Morris did not as a matter of fact or law prove that the defendant violated the automatic stay of section 362 of the Bankruptcy Code.
Intrusion into another person's world, space, or life by an outsider is always a difficult matter for any court to measure. The court must look at the situation after-the-fact, in hindsight, and without any emotional elements attached. The same must consider both sides of the situation and try to understand why each did what it did. Those perspectives are not a reason for, nor an excuse for, ignoring the human element of such situations, but they are reasons why courts must decide difficult questions. The instant situation raises such a question. Was Ms. Morris injured by anything Ms. Rutledge did?
In regard to Ms. Morris' second argument under her contention that Wells Fargo violated the extended stay by beginning the foreclosure process, Wells Fargo contends, in its summary judgment motion, that Ms. Morris was not "injured" by anything of the actions taken by Ms. Rutledge.
No one would like to have to deal with the events Ms. Morris has had to bear, but as indicated above, a threshold for entitlement to relief pursuant to section 362(k) is that an individual must have been "injured" as a result of a stay violation.
In regard to such injury, Ms. Morris does not claim that she suffered any pecuniary damages as a result of anything done by Rutledge, but instead she claims that the injuries she received as a result of Ms. Rutledge's actions were purely emotional in nature. Her corroboration of that claim is the only one that appears in the final, one sentence paragraph of her affidavit, in which she states, "My doctors are willing to testify as to the damages the stress of this process has caused me." Response to Defendant's Motion for Summary Judgment, A.P. Docket No. 34, Exhibit A at 5. That proffer is, of course, not evidence this Court may consider. It is not only conjecture about what her doctors may testify to at trial, it is also hearsay that may not be
As discussed above, Judge Hull explained in Lodge that more than generalized evidence of stress is required to recover for significant emotional distress and that generalized evidence, without any additional, specific detail, does not prove such emotional distress. On the other hand, Judge Hull explained that, "corroborating evidence may not be necessary to prove emotional distress where the violator engaged in egregious conduct and significant emotional distress is readily apparent." Id. (emphasis added).
Unfortunately for Ms. Morris, the Court cannot find in this case that the corroborating exception applies. The facts support the opposite. Wells Fargo's conduct was not egregious and significant emotional distress is not readily apparent, therefore corroboration requires more than Ms. Morris' generalized claims or descriptions of emotional distress are able to prove. Hence, where Ms. Morris did not corroborate alleged significant emotional distress injuries with more than her own affidavit containing generalized claims or descriptions of emotional distress, her contentions will not withstand the defendant's summary judgment motion. The conclusion here is as in Lodge that there was, "Nothing else in the record ... [that made] it obvious that the [plaintiff] suffered significant emotional distress." Id. (parentheticals added) (emphasis added).
Therefore, the Court finds that because Ms. Rutledge's actions in initiating the foreclosure, and sending the December 7 letter, and advertising the foreclosure in the Alabama Messenger were not egregious, and because emotional distress cannot be presumed, Ms. Morris failed to adequately corroborate her claim of emotional distress.
Consequently, as to this point, the Court finds that Ms. Morris did not as a matter of fact or law prove that the defendant violated the automatic stay of section 362 of the Bankruptcy Code.
In her third argument supporting her contention that Wells Fargo violated the extended stay by beginning the foreclosure process, Ms. Morris alleges that she was "insulted" because four attorneys offered to assist her as a result of reading the foreclosure sale advertisement placed by Ms. Rutledge in the Alabama Messenger.
Because there is no evidence in the record regarding this argument, it is difficult to evaluate. Certainly the Court does not doubt, based on Ms. Morris' representations, that she received calls from four attorneys who had read the legal announcement. What is difficult is that the argument is not supported by any evidence, such as including these incidents in her affidavit. In contrast, Ms. Morris did not mention in her affidavit either the four
Of course, no one would welcome calls regarding a foreclosure, especially if those calls were prompted by legal notices in a newspaper. But it does appear that at the time the calls could have been made, Ms. Morris already knew that the foreclosure had been terminated and would not take place. As such, where the calls could have been the basis for more in a different situation depending of their nature, in this instance, they do not satisfy the kind of conduct required by the law for a violation of the stay.
But even if they did, the next question must be, how could Wells Fargo have reasonably foreseen that Ms. Morris would have, as a result of the foreclosure advertisement, been contacted with offers of assistance from attorneys not employed by or associated with Wells Fargo. There is no evidence before the Court which indicates that Wells Fargo knew or should have know, or that a reasonable person would or should have known, that attorneys not employed by or associated with Wells Fargo would call her with offers to assist her in avoiding foreclosure based on the foreclosure advertisement placed by Ms. Rutledge. Similarly, Ms. Morris did not cite, and this Court has not found, any legal authority which supports the facially anomalous position that a foreclosing mortgagee which accidentally or erroneously advertises a foreclosure sale is liable for "insult" felt by a mortgagor as a result of receiving offers of assistance from attorneys not employed by or associated with the mortgagee.
Consequently, as to this point, the Court finds that Ms. Morris did not as a matter of fact or law prove that the defendant violated the automatic stay of section 362 of the Bankruptcy Code.
Ms. Morris' second contention relates to whether other written and verbal communications she received from Wells Fargo employees violated the automatic stay. Because many of the specific events complained of occurred outside of the parameters of section 362, that issue must be considered first.
It appears that Ms. Morris views the entire continuum of her acrimonious relationship with Wells Fargo since its inception in 2004 to fall within the ambit of section 362(a), as evidenced by the fact that 11 of the 20 paragraphs of Ms. Morris' affidavit describe events and circumstances which occurred pre-petition. A.P. Docket No. 34, Exhibit A at 1-4. In contrast, as a legal matter, section 362(a) prohibits only post-petition activities. Consequently, none of the circumstances and factors described by Ms. Morris in paragraphs
It also appears from paragraphs 14 through 17 of her affidavit that Ms. Morris considers communications that she received from Wells Fargo employees after the stay was lifted but before it was reimposed to be sanctionable under section 362(k). Those paragraphs include:
Response to Defendant's Motion for Summary Judgment, A.P. Docket No. 34, Exhibit A at 4-5.
Again, as a matter of law, the actions taken while the stay was not in force, that is after it was lifted but before it was reimposed, were not prohibited by section 362(a). Therefore, again, those actions cannot provide a basis for section 362(k) liability. Consequently, like paragraphs 2 through 12, paragraphs 14 through 16 do not provide any factual support for, or evidence of, Ms. Morris' section 362(k) action.
What section 362 prohibits and what circumstances can support Ms. Morris' alleged section 362(k) cause of action are those that occurred either after the case was filed and before relief from the stay was granted on September 30, 2011, or after the stay was reimposed on December 2, 2011. Because Ms. Morris did not describe any such actions in her complaint or her affidavit that were taken by Wells Fargo or its employees or attorneys after she filed her case and before the stay was lifted on September 30, 2011, the Court is left to consider whether there were any actions after December 2, 2011, the date the Court reimposed the stay, which may support a section 362(k) cause of action.
In this regard, Ms. Morris' complaint contains the following allegations with respect to communications she received from Wells Fargo employees after December 2, 2011. Those include:
Complaint Against Wells Fargo for Violation of the Stay, A.P. Docket No. 1 at 2. (emphasis added).
Ms. Morris' complaint is informative, but it is not verified. Therefore, particularly in the context of opposing a motion for summary judgment, it cannot be considered evidence of the alleged conversations between her and a representative of Wells Fargo named Jamie Allen, or of any other conversations between her and representatives of Wells Fargo, or of any letters or correspondence that she received from Wells Fargo, particularly in response to a motion for summary judgment. Similarly, Ms. Morris' affidavit does not refer to or describe any conversation between her and a representative of Wells Fargo named Jamie Allen or any other specifically named representative of Wells Fargo, or any specific or particular conversation with any Wells Fargo representative, or any particular correspondence that she received from any Wells Fargo representative other than the letter regarding institution of the foreclosure process that she received from Ms. Rutledge. She merely stated that, "The judge put the stay back in place on December 2, 2011," and she, "continued to receive letters and phone calls from Wells Fargo until at least January 11, 2012," without providing any particulars with respect to those conversations and letters such as how many conversations she had and letters she received, who she talked to, what the substance of those conversations and letters were and so forth. Consequently, Ms. Morris' affidavit does not provide proof or corroboration with respect to the nature of the phone
In addition, Ms. Morris' generic reference to "calls and letters" she received from Wells Fargo after her attorney emailed Ms. Rutledge on December 9, 2011, does not indicate that the subjects of those calls and letters were not also related to the loan modification. This conclusion is supported by the fact that there is nothing in Ms. Morris' affidavit that suggests that any of the phone calls and letters were about or related to anything other than her efforts to obtain a loan modification and Wells Fargo's efforts to provide her with a loan modification.
Consequently, as to this point, the Court finds that Ms. Morris did not as a matter of fact or law prove that the defendant violated the automatic stay of section 362 of the Bankruptcy Code.
Ms. Morris alleged in her complaint that, "With each call her [referring to Ms. Allen] attitude digressed further into veiled threats and rudeness...." Complaint Against Wells Fargo for Violation
Also in regard to specific complaints about telephone calls, Ms. Morris alleged that Ms. Allen, "continued to tell ... [her] that her home would be sold to the highest bidder on Wednesday, January 11, 2012." Complaint Against Wells Fargo for Violation of the Stay, A.P. Docket No. 1 at 2. (parenthetical added). Both Ms. Morris and her attorney knew that by virtue of this Court's order of December 2, 2011, the stay would prevent Wells Fargo from foreclosing her mortgage. And by virtue of Ms. Rutledge's email to Ms. Morris' attorney on December 9, 2011, Ms. Morris knew that the foreclosure had been terminated. It is not therefore apparent how Ms. Allen's alleged representations that the foreclosure would take place on January 11, 2012, even if any of them occurred after reimposition of the stay on December 2, could have constituted a violation of the stay or how Ms. Morris could possibly have been misled by any such representation, and there was nothing in her affidavit to change this conclusion.
Also in regard to specific complaints about telephone calls, Ms. Morris alleged in her complaint that before a conversation, or every conversation, Ms. Allen, "read a disclaimer to [her] that specifically stated the call was an attempt to collect a debt." Complaint Against Wells Fargo for Violation of the Stay, A.P. Docket No. 1 at 2. The legal significance of that allegation is not readily apparent, but the Court presumes it was made to show that the conversations initiated by Ms. Allen constituted an effort to collect the mortgage debt which in ordinary circumstances would be prohibited by the automatic stay.
Consequently, as to this point, the Court finds that Ms. Morris did not as a matter of fact or law prove that the defendant violated the automatic stay of section 362 of the Bankruptcy Code.
Ms. Morris attached to her response to Wells Fargo's summary judgment motion copies of the correspondence that she received from Wells Fargo employees. Each of those items concerns itself with helping Ms. Morris work out arrangements to avoid losing her home to foreclosure. One of those letters was a separate letter Ms. Rutledge sent Ms. Morris along with her December 7, 2011, letter advising Ms. Morris that the foreclosure process had been instituted. That separate letter, with the same date, offered Ms. Morris the opportunity to explore alternatives to foreclosure. It included:
Response to Defendant's Motion for Summary Judgment, A.P. Docket No. 34, Exhibit D at 4.
Response to Defendant's Motion for Summary Judgment, A.P. Docket No. 34, Exhibit F3 at 1-2.
This letter was sent to Ms. Morris after the stay was lifted and before it was reinstated, therefore it could not, under any circumstance, constitute a violation of the stay regardless of its content. Moreover, its content clearly reflects that its purpose was to assist Ms. Morris with obtaining a loan modification, which, as indicated before, was contemplated by and entirely permissible under this Court's December 2 order.
A third letter Ms. Morris attached was one she received from Wells Fargo on January 20, 2012, from Marcella McGrath, a Wells Fargo "home preservation bankruptcy specialist." It included:
Response to Defendant's Motion for Summary Judgment, A.P. Docket No. 34, Exhibit F3 at 4-5.
Like the November 17, 2011, letter from Ms. Allen, the content of this January 20, 2012, letter from Ms. McGrath clearly reflects that her purpose in sending it was to assist Ms. Morris with obtaining a loan modification. It was, therefore, contemplated by and entirely permissible under this Court's December 2 order reimposing the stay, and, for that reason, could not have constituted a stay violation.
A few days later, Wells Fargo inexplicably replaced Ms. McGrath with Eric Dobey as Ms. Morris'" home preservation bankruptcy specialist." On January 25, 2012, Mr. Dobey sent a letter to Ms. Morris introducing himself as such. Response to Defendant's Motion for Summary Judgment, A.P. Docket No. 34, Exhibit F3 at 6. The content of the letter is identical to Ms. McGrath's January 20 letter and likewise reflects that Mr. Dobey's purpose in sending it was to assist Ms. Morris with obtaining a loan modification. It was, therefore, like Ms. Allen's November 17 letter and Ms. McGrath's January 20 letter, contemplated by and entirely permissible under the Court's December 2 order reimposing the stay, and, like those letters, could not have violated the stay.
And finally, the Court certainly understands why Ms. Morris could have been aggravated by Wells Fargo's multiple changes in "home preservation bankruptcy specialist[s]." But as discussed above, the law requires more. That additional proof is not present here, and therefore those changes were not prohibited by section 362(a), and did not, therefore, constitute stay violations.
In summary, the Court finds that the second December 7 letter from Ms. Rutledge, offering to work with Ms. Morris to avoid foreclosure, did not violate the reimposed stay because Ms. Rutledge did not know the stay had been reimposed. In addition, for this letter and the November 17 letter from Ms. Allen, the January 20 letter from Ms. McGrath, and the January 25 letter from Mr. Dobey, none could have violated the stay because this Court's order reimposing the stay contemplated that Wells Fargo representatives would continue to communicate with Ms. Morris for the purpose of attempting to workout a loan modification.
Ms. Morris also contends that Wells Fargo violated the reimposed stay by not offering her a "reasonable" mortgage modification. She alleged in her complaint:
Complaint Against Wells Fargo for Violation of the Stay, A.P. Docket No. 1 at 2.
First, if for no other reason, this allegation must be denied based on the loan modification law in this Circuit. To the extent Ms. Morris' statements constitute an effort to state a cause of action under the Home Affordable Modification Program created by the United States Department of the Treasury pursuant to the Emergency Economic Stabilization Act of 2008, 12 U.S.C. §§ 5201-5261, they are unsuccessful. In Miller v. Chase Home Finance, LLC, 677 F.3d 1113, 1116 (11th Cir.2012), the Eleventh Circuit Court of Appeals held that a borrower has no private cause of action under HAMP against a lender that refuses to modify a loan.
Second, to the extent that Ms. Morris may be entitled to a loan modification for some other purpose, or she has a cause of action simply because she was "promised" a "reasonable" one by one of Wells Fargo's attorneys, more information is needed.
It appears that "reasonable" to Ms. Morris means a modification that fits her monthly budget and does not involve an extension of the term of the loan. While it is not possible to argue that such a modification would be welcomed by any home owner, as a practical matter, such an accommodation could not be accomplished without the mortgagee sacrificing part of the principal that it is owed and/or essentially allowing the mortgagor to forego paying interest for a substantial remainder of the loan's term. But this situation does appear to be the primary motivating factor for Ms. Morris in her filing the present adversary proceeding. She indicated that, more or less, in her affidavit. She testified:
Response to Defendant's Motion for Summary Judgment, A.P. Docket No. 34, Exhibit A at 5 (emphasis added).
Section 362(a), like other law in this Circuit, does not contain anything which requires Well Fargo to provide Ms. Morris with a loan modification, whether reasonable or not, and does not contain anything which prohibits Wells Fargo from refusing to offer Ms. Morris a loan modification, whether reasonable or not. Nor does it require any other secured creditor to provide any other debtor with a loan modification, whether reasonable or not, or prohibit any other secured creditor from refusing to offer any other debtor a loan modification, whether reasonable or not. Therefore, as a matter of law, Section 362(k), which only supplies a remedy for violation of the provisions of section 362(a), provides Ms. Morris no legal remedy, or cause of action, or right to relief, based on Wells Fargo's failure or refusal to offer her a loan modification, whether reasonable or not.
While Ms. Morris did not cite any other statute which would entitle her to relief against Wells Fargo for its refusal to offer her a "reasonable" loan modification, she does reference this Court's order of December 2, 2011, as a basis for holding Wells Fargo in contempt. But on this point, like Ms. Morris, that order does cite any statute which requires Well Fargo to modify its mortgage loan in any respect or to otherwise offer Ms. Morris a loan modification, whether one she considers "reasonable" or not. That order merely set aside the previous order granting Wells Fargo relief from the stay and reimposed the stay as to Wells Fargo for a period of 180 days, for the singular purpose of permitting the parties a period of time to voluntarily negotiate a loan modification if possible. It read, "That stay shall remain in effect as to Wells Fargo for
Finally, in regard to the "reasonable" order Ms. Morris seeks, she alleged in her complaint that after the hearing held on January 25, 2012, Mr. Tutten promised her that "a reasonable modification was forthcoming" from Wells Fargo. Complaint Against Wells Fargo for Violation of the Stay, A.P. Docket No. 1 at 2. But again, she does not support that allegation with evidence, particularly, she does not mention it in her affidavit. The legal problem for Ms. Morris is that because she did not, presumably because she could not, allege that the "reasonable modification" promise was in writing or has been embodied in a written document, which has been subscribed to by someone on behalf of Wells Fargo, and which expresses the consideration for that promise. Because those legal criteria have not been satisfied, Mr. Tutten's commitment, on Wells Fargo's behalf, to offer Ms. Morris a "reasonable modification" of her loan is void by virtue of Alabama's Statute of Frauds. That statute reads in pertinent part:
Code of Alabama 1975, § 8-9-2(7).
In addition, even if the alleged commitment was not void by virtue of the Alabama Statute of Frauds, it could not a basis for relief for Ms. Morris because there is nothing in the record which reflects that she gave any consideration for it, and there was obviously no meeting of the minds about what the parties each intended would constitute a "reasonable" modification. The parties' after-the-fact characterizations of the offer prove that point, as Ms. Morris claims that the loan modification that she was subsequently offered was patently unreasonable whereas Wells Fargo no doubt considered it eminently reasonable.
In either event, this Court would have no basis for determining which party is correct and no right to interject an interpretation of the term "reasonable modification" which does not comport with the intentions of the parties. Any such unilateral commitment would simply be unenforceable.
Consequently, as to this point, the Court finds that Ms. Morris did not as a matter of fact or law prove that the defendant violated the automatic stay of section 362 of the Bankruptcy Code.
Ms. Morris' fourth contention in her response to Wells Fargo's summary judgment motion is that Wells Fargo violated, in several respects, a settlement reached between it, along with several other major mortgage servicers, and the attorney generals of various states pertaining to questionable mortgage servicing practices. As proof, she attached to her brief a photocopy of a newspaper article and copies of portions of a webpage at www.nationalmortgagesettlement.com. Response to Defendant's Motion for Summary Judgment, A.P. Docket No. 34, Exhibit F1. Unfortunately, Ms. Morris did not provide a copy of the settlement agreement which she claims that Wells Fargo breached. Without the legal document upon which she grounds her claim, the Court has no legal basis for determining whether or not it provides her with a right to relief. Simply pointing the Court in a general direction via a newspaper article and reference to a webpage is not a substitute for evidence and legal authority.
In addition, Ms. Morris did not attempt to state a claim for relief in her complaint based on violation of the alleged settlement agreement. In fact, she did not mention the settlement agreement in her complaint. Consequently, whether Wells Fargo violated the terms of that alleged settlement, and whether Ms. Morris is entitled to relief based on any such violations, are not litigable issues in this action and could not have been made so by Ms. Morris' having raised and discussed them in her brief. In contrast, while she could have made those issues litigable in this case by amending her complaint pursuant to Fed. R. Bankr.P. 7015 to add a claim based on violations of the settlement agreement, she has not done so. The law in this Circuit is clear. "At the summary judgment stage, the proper procedure for plaintiffs to assert a new claim is to amend the complaint in accordance with Fed. R.Civ.P. 15(a). A plaintiff may not amend her complaint through argument in a brief opposing summary judgment." Gilmour
And finally, even if Ms. Morris had mentioned the alleged settlement agreement in her complaint, and sought relief based on that agreement, it could not have been granted under the penumbra of section 362(k) because section 362(k) concerns itself solely with remedying violations of the automatic stay rather than violations of settlement agreements relating to loan servicing practices. And if Wells Fargo indeed violated the terms of the alleged settlement agreement during its post-petition dealings with Ms. Morris, which is the scenario that she describes in her brief, her recourse lies in a forum other than this one because the resolution of any such lawsuit would have no conceivable effect on the administration of the estate in her bankruptcy case. The conduct giving rise to the claim occurred after Ms. Morris filed her bankruptcy petition. Therefore, the cause of action is not property of the estate and any damages she might be awarded would belong strictly to her. Consequently, the claim is not "related to a case under title 11," which is the minimum required for federal bankruptcy jurisdiction to exist under 28 U.S.C. § 1334(b). Community Bank of Homestead v. Boone (In re Boone), 52 F.3d 958 (11th Cir.1995).
Consequently, as to this point, the Court finds that Ms. Morris did not as a matter of fact or law prove that the defendant violated the automatic stay of section 362 of the Bankruptcy Code.
Because Ms. Morris did not prove as a matter of fact or law that Wells Fargo violated the automatic stay of section 362 of the Bankruptcy Code, the Court concludes that Wells Fargo is entitled judgment under the summary judgment standards outlined by the Court of Appeals for the Eleventh Circuit in Fitzpatrick v. City of Atlanta, 2 F.3d 1112 (11th Cir.1993) because the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law.
A separate Order will be entered contemporaneously with this Memorandum Opinion.
In its December 2 order, the Court included Ms. Morris' representations that she had been engaged in promising conversations with a Wells Fargo employee, who had informed her either "that a loan modification had been approved, or that one was at least possible," and had "assured her that this representative would be the debtor's only contact for arranging the modification, and that this representative would follow the process to a conclusion." Order Setting Aside September 30, 2011, Lift of Stay Order, Case Docket No. 40. There is no doubt in making those representations to the Court that Ms. Morris was describing conversations she had had with Ms. Allen, who, as indicated in the letter which she sent Ms. Morris on November 17, 2011, had been assigned to work with Ms. Morris on a loan modification. Response to Defendant's Motion for Summary Judgment, A.P. Docket No. 34, Exhibit F. Those conversations all took place for the purpose of negotiating a loan modification. The December 2 order was entered in order to allow those conversations and similar communications to continue and it is apparent that those conversations did in fact, continue, after December 2, although not to Ms. Morris' ultimate satisfaction. And the fact that Ms. Morris, per her representations to the Court at the November 29, 2011, hearing, had been discussing a loan modification with Ms. Allen before entry of the order reimposing the stay, coupled with the description in the complaint of continued loan modification discussions which she had with Ms. Allen after entry of that order, indicate that the singular subject of all of the conversations which Ms. Morris had with Ms. Allen was potential modification of the loan and nothing else. Since conversations relating to loan modification were contemplated and authorized as an exception to the reimposed stay by the December 2 order, the phone calls made by Ms. Allen to Ms. Morris could not have violated the stay.
15 U.S.C. § 1692e(11).
1. For Issues on Which Movant Would Bear Burden of Proof at Trial
As interpreted by this court sitting en banc, Celotex requires that for issues on which the movant would bear the burden of proof at trial, that party must show affirmatively the absence of a genuine issue of material fact: it must support its motion with credible evidence that would entitle it to a directed verdict if not controverted at trial. In other words, the moving party must show that, on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the non-moving party. If the moving party makes such an affirmative showing, it is entitled to summary judgment unless the non-moving party, in response, comes forward with significant, probative evidence demonstrating the existence of a triable issue of fact.
2. For Issues on Which Non-Movant Would Bear Burden of Proof at Trial
For issues, however, on which the non-movant would bear the burden of proof at trial, the moving party is not required to support its motion with affidavits or other similar material negating the opponent's claim in order to discharge this initial responsibility. Instead, the moving party simply may show, that is, point out to the district court — that there is an absence of evidence to support the non-moving party's case. Alternatively, the moving party may support its motion for summary judgment with affirmative evidence demonstrating that the non-moving party will be unable to prove its case at trial.
C. Non-Movant's Responsibility Once Movant Satisfies Initial Burden
If the party moving for summary judgment fails to discharge the initial burden, then the motion must be denied and the court need not consider what, if any, showing the non-movant has made. If, however, the movant carries the initial summary judgment burden in one of the ways discussed above, responsibility then devolves upon the non-movant to show the existence of a genuine issue as to the material fact.
1. For Issues on Which Movant Would Bear Burden of Proof at Trial
For issues on which the movant would bear the burden of proof at trial, the non-movant, in order to avoid summary judgment, must come forward with evidence sufficient to call into question the inference created by the movant's evidence on the particular material fact. Only if after introduction of the non-movant's evidence, the combined body of evidence presented by the two parties relevant to the material fact is still such that the movant would be entitled to a directed verdict at trial — that is, such that no reasonable jury could find for the non-movant — should the movant be permitted to prevail without a full trial on the issues.
2. For Issues on Which Non-Movant Would Bear Burden of Proof at Trial
For issues on which the non-movant would bear the burden of proof at trial, the means of rebuttal available to the non-movant vary depending on whether the movant put on evidence affirmatively negating the material fact or instead demonstrated an absence of evidence on the issue. Where the movant did the former, then the non-movant must respond with evidence sufficient to withstand a directed verdict motion at trial on the material fact sought to be negated. Where the movant did the latter, the non-movant must respond in one of two ways. First, he or she may show that the record in fact contains supporting evidence, sufficient to withstand a directed verdict motion, which was overlooked or ignored by the moving party, who has thus failed to meet the initial burden of showing an absence of evidence. Second, he or she may come forward with additional evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency.
2 F.3d at 1115-1117 (for the sake of clarity and brevity, internal quotation marks, citations, footnotes, indentations, brackets, and ellipses have been omitted).