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

Filing 5

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

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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

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