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

APPELLANTS’ OPENING BRIEF Re: Wells Fargo Mortgage Modification Lawsuits Revived by 9th Circuit Court of Appeals

by Barry Fagan


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.


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.

LOADING PDF: If there are any problems, click here to download the file.

Written by:

Barry Fagan

Law Offices of Barry S Fagan on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.