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

Filing 5

OPINION. Signed by Honorable Judge Myron H. Thompson on 6/27/2011. (cc, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION

IN RE

)
)
TORIANO J. AVERY,
)
)
Debtor,
)
)
TORIANO J. AVERY,
)
)
Plaintiff,
)
)
v.
)
)
WELLS FARGO BANK N.A. d/b/a )
Wells Fargo Home Mortgage, )
Inc.,
)
)
Defendant.
)

CIVIL ACTION NO.
3:11cv486-MHT
(WO)

OPINION
Plaintiff

Toriano

J.

Avery

filed

this

lawsuit

asserting that defendant Wells Fargo Bank, N.A., had
improperly serviced her loan and violated the automatic
bankruptcy stay.

In a previous opinion, this court

affirmed in part and reversed in part the bankruptcy
court’s grant of summary judgment Wells Fargo.
Avery, 434 B.R. 895 (M.D. Ala. 2010).

In re

Specifically, the

court denied summary judgment because there existed a
genuine issue of material fact as to the propriety of the
fees assessed by Wells Fargo, and because the bankruptcy
court had granted summary judgment on Avery’s Fair Debt
Collection Practices Act claim, 15 U.S.C. § 1692 et seq.,
though Wells Fargo had not moved for summary judgment on
that claim.

The case was remanded to the bankruptcy

court to make proposed findings of fact and conclusions
of law as to those issues.
This lawsuit is now before the court on the proposed
findings of fact and conclusions of law of the United
States Bankruptcy Judge.

The bankruptcy judge finds that

judgment should be entered in favor of Wells Fargo.
There are no objections to the proposed findings of fact
and conclusions of law.

After an independent and de novo

review

the

of

the

record,

2

court

concludes

that

the

bankruptcy

judge’s

proposed

findings

of

fact

conclusions of law should be adopted.
An appropriate judgment will be entered.
DONE, this the 27th of June, 2011.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

and