1. Whether the district court erred in ruling that plaintiffs failed to allege
the existence of binding TPP Agreements.
2. Whether the district court erred by dismissing plaintiffs’ breach of
TPP Agreement claims upon ruling that neither will be able to allege receiving a
fully executed permanent modification agreement, despite well-pleaded allegations
to the contrary.
3. Whether the district court erred by dismissing the claims for breach of
the implied covenant of good faith and fair dealing.
4. Whether the district court erred in ruling that Wells Fargo made no
promise upon which Plaintiffs could reasonable rely for their promissory estoppel claims.
5. Whether the district court erred in ruling that the Lucia plaintiffs
failed to allege a Rosenthal Act claim upon finding they did not convincingly
allege that the TPP Agreement or other modification-related communications were
false, deceptive, or misleading.
6. Whether the district court erred in ruling that Plaintiffs may not assert
UCL claims based on HAMP violations because HAMP does not provide a private
right of action.
7. Whether the district court erred by dismissing Plaintiffs’ UCL claims.
SUMMARY OF THE ARGUMENT
The district court misinterpreted the TPP Agreement, and on that basis,
dismissed with prejudice all of Plaintiffs’ claims. The TPP Agreement “spells out
two conditions precedent to Wells Fargo’s obligation to offer a permanent
modification: [Plaintiffs] had to comply with the requirements of the trial plan, and
[Plaintiffs’] financial information had to remain true and accurate.”
According to Wells Fargo’s TPP offer, Wells Fargo “will provide [Plaintiffs] with a [permanent] Loan Modification Agreement” after the trial period, if they were “in compliance with this Loan Trial Period” and their “representations  continue to be true in all material respects.” Plaintiffs’ compliance obligations with the loan trial period were spelled out in the TPP, and included requiring timely payment of specified trial period payments, and providing Wells Fargo with documentation of their incomes.
In reliance on Wells Fargo’s TPP offer, Plaintiffs timely made all of their trial period
payments, submitted all required documentation, made all required attestations,
and otherwise complied with all of their obligations according to the TPP
According to the district court, dismissal of Plaintiffs’ breach of contract,
promissory estoppel, Rosenthal Act, and UCL claims were all appropriate (and
amendment was futile) because Plaintiffs will not “be able to allege  receiv[ing] a
fully executed copy of a [permanent] Modification Agreement.”
The district court’s interpretation of the TPP rewrites the contract, and, as the Seventh
Circuit recently held, would permit Wells Fargo to walk away from its TPP
Agreement for any reason whatsoever. Plaintiffs complied with all terms of the
TPP, but Wells Fargo did not provide the permanent Modification Agreements.
Thus, the Complaints adequately allege a valid offer, acceptance, consideration, a
breach, and damages from Wells Fargo’s breach of the TPP Agreements.
The district court also erred by dismissing Plaintiffs’ implied covenant of
good faith and fair dealing claims. The only reason given by the district court for
dismissing the implied covenant claims was that “Plaintiffs have not sufficiently
alleged the existence of a contract for a permanent loan modification.”
Upon compliance with the TPP Agreement’s requirements, Wells Fargo was
obligated to provide them with permanent modification agreements.
Plaintiffs never alleged that the TPP Agreement was itself a contract for a permanent loan modification. Plaintiffs also allege that Wells Fargo injured their rights to receive
the benefits of the TPP Agreement by failing to service the loans in compliance
with the TPPs, failing to supervise agents, making inaccurate calculations, and
failing to communicate with Plaintiffs about the status of their loan modifications.
The district court erred by dismissing Plaintiffs’ promissory estoppel claims.
Based on a misreading of the Complaints and the TPP Agreement, the district court
ruled that as a matter of law, the TPP Agreement does not require Wells Fargo to
permanently modify mortgages, and that there were no promises made about
permanent loan modifications on which Plaintiffs could reasonably rely.
Whether Plaintiffs’ reliance on Wells Fargo’s promises was reasonable is a
question of fact – not law. Promissory estoppel is adequately alleged.
The 9th Circuit Court of Appeals reversed the lower court's ruling stating:
"Read as a whole the TPP between Corvello and Wells Fargo makes no sense. It is self-contradictory. No purpose was served by the document Wells Fargo prepared except the fraudulent purpose of inducing Corvello to make the payments while the bank retained the option of modifying the loan or stiffing him. “Heads I win, tails you
lose” is a fraudulent coin toss.