PHILLIP R. CORVELLO, Plaintiff-Appellant, v. WELLS FARGO BANK, NA, DBA America’s Servicing Company, DBA Wells Fargo Home Mortgage, Inc., Defendant-Appellee

Wells Fargo Mortgage Modification Lawsuits Revived by 9th Circuit Court of Appeals

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Wells Fargo Mortgage Modification Lawsuits Revived by Court

In a separate action involving Wells Fargo, a U.S. Court of Appeals held that the bank must face lawsuits by home loan borrowers for refusing to offer them permanent mortgage modifications.

The federal government’s 2009 Home Affordable Modification Program requires the bank to offer permanent adjustments to homeowners who met the terms of a trial-period modification, a three-judge panel of the U.S. Court of Appeals in San Francisco ruled.

“The program seems to have created more litigation than it has happy homeowners,” the judges said in yesterday’s decision.

Reversing a lower-court dismissal of two separate lawsuits, the panel rejected the conclusion Wells Fargo was only bound if it had actually offered the borrowers a fully executed copy of a modification agreement.

NOONAN, Circuit Judge, concurring:

Read as a whole the TPP between Corvello and Wells

Fargo makes no sense. It is self-contradictory. Page one

promised Corvello in two places that if his representations

were accurate and if he were in compliance with the Trial

Period Plan, the Lender “would provide” him “with a Loan

Modification Agreement.” Paragraph 2G stated: “the Loan

Documents will not be modified unless and until (i) I meet all

of the conditions required for modification; (ii) I receive a

fully executed copy of a Modification Agreement and (iii) the

Modification Effective Date has passed.”

Wells Fargo drafted this document, and Wells Fargo must

be held responsible for it. The document promises a

substantial benefit to Corvello if he meets its terms. The

document then makes these benefits illusory because they

depend entirely on the will of Wells Fargo. To say, “I give

$100 for your watch but I will decide whether I pay you

$100” is not to make a contract but to engage in a flim-flam

or, in plain words, to work a fraud. You promise so that the

other will perform. You reserve your promise so that the

promise is empty while you have gotten what you wanted

from the promisee.

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. Wells Fargo did no better.

The cases are Corvello v. Wells Fargo Bank NA, 11-16234 and Lucia v. Wells Fargo Bank NA, 11-16242, U.S. Court of Appeals for the Ninth Circuit (San Francisco).

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