Bradley v. Wells Fargo Bank, N.A., et al

Filing

OPINION issued by Sandra L. Lynch, Appellate Judge; Norman H. Stahl, Appellate Judge and Rogeriee Thompson, Appellate Judge. Unpublished. [16-1184]

Case: 16-1184

Document: 00117067225

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Date Filed: 10/14/2016

Entry ID: 6040010

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit
No. 16-1184
JEFFREY BRADLEY,
Plaintiff, Appellant,
v.
WELLS FARGO BANK, N.A., as Trustee for the Pooling and Servicing
Agreement dated as of October 1, 2004 Asset-Backed Pass-Through
Certificates Series 2004-MHQ1; OCWEN LOAN SERVICING, LLC; WELLS
FARGO BANK, N.A., as Trustee; WELLS FARGO BANK, N.A.,
Defendants, Appellees,
AMERIQUEST MORTGAGE COMPANY; MARK MURRAY; LEGACY LANDSCAPE
COMPANY,
Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]

Before
Lynch, Stahl, and Thompson,
Circuit Judges.

Terrie L. Harman, with whom Kristina Cerniauskaite, Harman
Law Offices, Ruth A. Hall, and Union Law Office PC were on brief,
for appellant.
Brett L. Messinger, with whom Brian J. Slipakoff and Duane
Morris LLP were on brief, for appellees.

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October 14, 2016

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THOMPSON,

Circuit

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Judge.

Having

lost

his

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home

to

foreclosure, Jeffrey Bradley sued the defendants listed in our
caption. Unhappy with how things turned out below, Bradley insists
the

judge

erred

in

three

ways:

first

intentional-infliction-of-emotional-distress

in

dismissing

claim

(the

his

"IIED

claim" from now on) against Wells Fargo in its corporate capacity
and its capacity "as Trustee"; then in granting summary judgment
to Wells Fargo and Ocwen on his trespass claim; and finally in
denying his attorney-fee motion.

But having studied the matter

carefully, we see no lawful basis to reverse the judge's wellreasoned rulings.

Actually, we find this to be the perfect case

to apply our longstanding rule that "when a trial court accurately
takes the measure of a case, persuasively explains its reasoning,
and reaches a correct result, it serves no useful purpose for a
reviewing court to write at length in placing its seal of approval
on the decision below."

See Moses v. Mele, 711 F.3d 213, 216 (1st

Cir. 2013) (citing a host of cases).

So we affirm the judgment

below essentially for the reasons given by the judge, adding only
a few brief comments.
First.

Bradley brought his IIED claim against Wells

Fargo in three separate capacities: (1) in its corporate capacity,
(2) "as Trustee," and (3) "as Trustee" for a "Pooling and Servicing
Agreement."

The judge dismissed the claims against Wells Fargo in
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capacities (1) and (2), reasoning that Bradley had not alleged
facts

tying

them

to

the

post-foreclosure

undergirding his IIED claim.

emotional

distress

As Bradley sees it, the judge erred

by "fail[ing] to address IIED claims against" Wells Fargo in
capacities (1) and (2) "for pre-foreclosure actions."

We see it

differently.
Bradley's
defendants

operative

(including

Wells

complaint
Fargo

in

pleaded
all

of

that

its

all

manifold

capacities) intentionally inflicted emotional distress on him by
foreclosing and evicting him and by screwing up his attempt to pay
off the loan by not giving him a payoff statement.

Just take a

look at these quotes lifted from his complaint (emphasis ours):


"Having trespassed and converted the plaintiff and his
wife's possessions, the defendants maliciously destroyed
the

plaintiff's

outrageous
recklessly

possessions,

conduct,
caused

and

by

negligently,

severe

emotional

that

extreme

and

intentionally

or

distress

to

the

plaintiff."


"The failure of the defendants to provide a payoff amount
when requested by an outside lender . . . negligently or
intentionally inflicted emotional distress."

So the complaint could not be clearer that the complained-of
tortious

conduct

was

both

defendants'
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"trespass[ing]

and

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convert[ing]"

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Bradley's

Date Filed: 10/14/2016

"possessions"

and

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"maliciously

destroy[ing]" them, as well as their failing to give him a payoff
statement.

And the judge deftly dealt with each theory, ruling

that the IIED claim misfires first because the "complaint does not
allege" that Wells Fargo — in its corporate or Trustee capacities
— "had any involvement in either the foreclosure or the eviction";
and second because Bradley "alleges no additional facts whatsoever
about the request for a payoff — no date, no year, or general time
frame, and no party" — so it "is a threadbare recital with no facts
to support it," which does not suffice.

We could not have said it

any better ourselves.
Hoping to turn the tide, Bradley argues that we should
look to a paragraph in the count containing the IIED claim that
alleges "[t]he actions of the defendants and/or their agents
caused"

him

"financial

loss

and

negligently

or

intentionally

inflicted emotional distress, anxiety, and embarrassment," and
conclude that this language sweeps in everything else alleged in
the complaint — particularly since he wrote there too that he
"reiterates and incorporates by reference" the "above" paragraphs,
some

of

which

counsel's
foreclosure

alleged

part
that

pre-foreclose

(i.e.,

that

the

parties

misdoings

defendants'
could

"work

counsel
things

defendants never responded to Bradley's calls).
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on

defendants'
said
out,"

preyet

But a complaint

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must give defendants "fair notice of what the . . . claim is and
the grounds upon which it rests."

Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007) (alteration in original) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)).

And one cannot read the count

containing the IIED claim and say that the defendants (or the
judge) should have been on notice that Bradley meant that — in
addition to the specific allegations in the count — everything he
talked about in the complaint intentionally inflicted emotional
distress on him.

Cf. generally United States v. Dunkel, 927 F.2d

955, 956 (7th Cir. 1991) (per curiam) (noting that "[j]udges are
not like pigs, hunting for truffles buried in" court papers).
Second.

The judge concluded that Bradley no longer

possessed any interest in the property at the time of the trespass.
But Bradley says the judge should not have granted summary judgment
to Wells Fargo and Ocwen on the trespass claim, because — according
to him — they failed to submit a "memorandum of sale" with their
summary-judgment materials and thus never showed that he had lost
"legal and equitable title."

The problem for Bradley is he never

presented this argument to the district judge.

"If any principle

is

absent

settled

in

this

circuit,

it

is

that,

the

most

extraordinary circumstances, legal theories not raised squarely in
the lower court cannot be broached for the first time on appeal."
Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local No. 59
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v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992).

Seeing

how Bradley gives us no sound reason to think any long-odds
exception to the raise-or-waive rule applies here, we deem the
argument waived.
Third. As for his last argument — that the judge wrongly
held he was not the prevailing party and thus not entitled to
attorney fees under the parties' contractual agreement — we deem
that one waived too.

Interpreting the word "action" in the

agreement, the judge held that in deciding whether Bradley had
prevailed, one had to "consider all the claims you brought, all
the claims they brought," and "look at how they were all resolved"
— a process that requires "looking at the litigation as a whole."
Bradley wants us to hold that an "action" means a claim, rather
than the entire suit, and so that in cases like this, where both
sides succeed on one or more of their claims within the larger
suit, each "might be entitled to attorney's fees."

But Bradley

waived all challenges to the judge's ruling, because he expressly
disavowed the claim-by-claim analysis he now says is required under
the contract.

The defendants bring up quote after quote from

Bradley's argument to the judge on the fee issue to show that is
so.

Bradley tells us we have to look at the quotes in context.

We have, and he is out of luck.

See United States v. Gates, 709

F.3d 58, 63 (1st Cir. 2013) (emphasizing that "a party cannot
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concede an issue in the district court and later, on appeal,
attempt to repudiate that concession and resurrect the issue,"
because "[t]o hold otherwise would be to allow a litigant to lead
a trial court down a primrose path and later, on appeal, profit
from the invited error" — "[w]e will not sanction such tactics").
Having

fully

considered

Bradley's

many

arguments

(including some not mentioned above, because they deserve no
discussion, given the bang-up job the judge did), we let the
challenged rulings stand.
Affirmed.

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