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

Filing 98

ORDER dismissing as moot 51 Motion for Partial Summary Judgment; dismissing as moot 71 Motion to Compel; dismissing as moot 75 Motion to Appoint Expert; dismissing as moot 77 Motion to Dismiss; granting 78 Motion for Summary Judgment. Signed by Judge William T. Moore, Jr on 9/20/2013. (loh)

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IN THE UNITED STATES DISTRICT COURTR
THESOUTHERN DISTRICT OF GEORGIJSLP2O
SAVANNAH DIVISION

.M 3 t3

MARLA GOULD HOLCOMB and HENRY
C. HOLCOMB,
Plaintiffs,
CASE NO. CV412-111

bw

WELLS FARGO BANK, N.A. and
FEDERAL HOME LOAN MORTGAGE
CORP., d/b/a Freddie Mac,
Defendants.

ORDER

Before the Court is Defendants Wells Fargo Bank, N.A.
('WFB") and Federal Home Loan Mortgage Corporation's
("Freddie Mac") Motion for Summary Judgment. (Doc. 78.)
For the following reasons, Defendants' motion is
and Plaintiffs' claims are

DISMISSED.

GRANTED

As a result,

Plaintiffs' Motion for Partial Summary Judgment (Doc. 51),
Motion to Set Expert Witness Report Deadlines (Doc. 75),
and Motion to Dismiss Defenses or Protective Order (Doc.
77) are DISMISSED AS MOOT.

In addition, Defendants' Motion

to Compel Discovery (Doc. 71) is also

DISMISSED AS MOOT.

The Clerk of Court is DIRECTED to close this case.
BACKGROUND

In this case, Plaintiffs appear to allege that
Defendants wrongfully foreclosed on their home. According

to Plaintiffs,' Mrs. Maria Holcomb2 was "making the monthly
payments on the loan and possessed the financial ability to
continue making the payments." (Doc. 1, Attach. 1 ¶ 10.)
However, she wished to modify her mortgage, presumably on
terms more favorable than the existing mortgage. (Id.)
According to Mrs. Holcomb, she contacted Defendant WFB to
inquire about a loan modification, who informed her that
she cannot be considered for loan modification unless she
missed three monthly payments. (Id.) Based on this
information, Mrs. Holcomb did not remit her mortgage
payments for May, June, or July of 2011. (Id.)
In August 2011, Mrs. Holcomb began submitting
documentation in support of her modification request. (Id.
11.) Plaintiffs received a July 13, 2011 letter from
Defendant WFB stating that the "loan file has been referred
to our attorney with instructions to begin foreclosure
proceedings." (Id. ¶ 12.) Mrs. Holcomb claims, however,
that a representative of Defendant WFB "advised her any
action would be postponed." (Id.) Next, Plaintiffs

1

As it must at this stage, the Court construes the facts in
the light most favorable to Plaintiff. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88
(1986)
2
Mrs. Holcomb acquired the home when she divorced her
previous husband. Subsequently, she was remarried to
Plaintiff Henry C. Holcomb. (Doc. 78, Attach. 1 at 1.)
2

received a July 22, 2011 letter from the law firm of
McCalla Raymer, LLC stating that "the mortgage loan for
your property . . . had been pre-approved for a special
repayment program." (Id.) Plaintiffs received a July 28,
2011 letter from a Home Preservation Specialist at
Defendant WFB stating that she would be assisting them with
the modification process. (Id.) A subsequent July 31,
2011 letter from Defendant WFB identified documents
Plaintiffs must submit to be considered for loan
modification: hardship letters, bank statements, and three
paystubs from both Plaintiffs. (Id.; id. Ex. 8 at 1.)
Plaintiffs then received a November 7, 2011 letter from
McCalla Raymer stating that Plaintiffs "may be approved for
a special repayment program." (Id. ¶ 12; Id. Ex. 9 at 1.)
That letter, however, expressly stated that it is not "a
loan modification or repayment plan agreement on the part
of McCalla Raymer or the owner (investor) of your loan."
(Id. at 2.)
In a November 18, 2011 letter, Plaintiffs were
provided notice by McCalla Raymer that foreclosure
proceedings had been initiated and the property would be
sold on the first Tuesday of January 2012.
1-2.)

(Id. Ex. 10 at

In addition, this letter informed Plaintiffs of
3

their rights under Georgia foreclosure law and included a
copy of the Notice of Sale that would be submitted for
publication. (Id.) According to Mrs. Holcomb, she once
again contacted Defendant WFB and was instructed to
disregard the notice because the foreclosure attorneys
would be informed that Plaintiffs were seeking a loan
modification. (Id., Attach. 1

¶J 12.) She claims that a

representative of Defendant WFB told her the sale would be
postponed.

()

A December 30, 2011 letter from Defendant WFB informed
Plaintiffs that it was not able to provide them with a loan
modification and the collections process would resume.
(Id. Ex. 11 at 1.) On January 11, 2012, Plaintiffs
received a letter from Defendant WFB informing them that
the delinquency on their mortgage could result in
foreclosure. (Id. Ex. 12 at 1,) This letter provided
Plaintiffs with a phone number for mortgage assistance
inquiries. (Id..) However, Plaintiffs subsequently
received a. January 11, 2012 letter from McCalla Raymer
explaining that the home had been foreclosed on and Freddie
Mac now owned the property. (Id. Ex. 13 at 1.) The
property deed states that the foreclosure sale took place
on January 3, 2012. (Id. Ex. 4 at 1.) Plaintiffs maintain
4

that they were never informed the foreclosure proceedings
would resume in the absence of loan modification or that
Mrs. Holcomb could avoid foreclosure by bringing the note
current. (Id., Attach. 1 ¶ 15.)
Based on these events, Plaintiffs filed a complaint in
the Superior Court of Chatham County, Georgia, which
Defendants properly removed to this Court. (Id.) In their
complaint, Plaintiffs appear to bring a claim for wrongful
foreclosure and seek to have the foreclosure set aside. 3
(Id. ¶J 17-27.) In addition, Plaintiffs seek both
compensatory and punitive damages for mental distress (id.
¶ 25) , as well as attorney's fees and expenses (id. ¶ 28)
As part of the complaint, Plaintiffs seem to argue that the
doctrine of promissory estoppel operates to bar Defendants'
foreclosure. (Id. ¶ 19.) Also, Plaintiffs appear to
contend that Defendants wrongfully foreclosed on their
property because the parties mutually agreed to depart from
the terms of the original mortgage and, subsequent to that
mutual departure, Defendants failed to provide notice that

Plaintiffs at times seem to argue that Defendants are
liable for the return of the private property that was in
the house at the time of foreclosure. However, this
Court's review of Plaintiffs' complaint reveals no such
claim.
5

they intended to once again rely on the terms of the
mortgage. (Id.

IT

21-22.)

In their Motion for Summary Judgment, Defendants argue
that Plaintiffs have failed to meet the standard for a
wrongful foreclosure claim under Georgia law. (Doc. 78,
Ex. A at 8-13.) Also, Defendants maintain that promissory
estoppel is inapplicable to this case because they made no
promise to Plaintiffs upon which they detrimentally relied.

(Id. at 13-18.) Finally, Defendants reason that
Plaintiffs' mutual departure claim lacks merit because
Defendants never agreed to depart from the original
mortgage contract. (Id. at 18-21.)
In response, Plaintiffs point out that Mrs. Holcomb
had not defaulted on her loan

prior

to Defendant WFB

informing her she must be in default before she could seek
loan modification. (Doc. 84 at 2-3.) Also, Plaintiffs
contend that Defendants never provided them with proper
notice that, after mutually departing from the requirements
of the mortgage contract, Defendants were going to
reinstate the terms of that contract and foreclose on the
property. (Id. at 4-7.) With respect to promissory
estoppel, Plaintiffs argue that once Defendants led Mrs.
Holcomb to believe that the foreclosure would be postponed
11

while they assessed her request for loan modification, they
are estopped from taking any action toward foreclosing on
the property. (Id. at 9-11.) Finally, Plaintiffs reason
that Mrs. Holcomb was never provided notice of the
foreclosure and opportunity to bring the loan current
because Defendant WFB instructed her to disregard that
letter. (Id. at 12-14.)
ANALYSIS
I. SUMMARY JUDGMENT STANDARD

According to Fed. R. Civ. P. 56(a) 1 "[a] party may
move for summary judgment, identifying each claim or
defense—or the part of each claim of defense—on which
summary judgment is sought." Such a motion must be granted
"if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as
a matter of law." Id. The "purpose of summary judgment is
to 'pierce the pleadings and to assess the proof in order
to see whether there is a genuine need for trial.'

11

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986) (quoting Fed. R. Civ. P. 56 advisory
committee notes)
Summary judgment is appropriate when the nonmovant
"fails to make a showing sufficient to establish the
7

existence of an element essential to that party's case, and
on which that party will bear the burden of proof at
trial."

Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986) .

The substantive law governing the action

determines whether an element is essential. DeLong Equ i p.
Co. v. Wash. Mills Abrasive Co., 887 F.2d 1499, 1505 (11th
Cir. 1989)
As the Supreme Court explained:
[A] party seeking summary judgment always bears
the initial responsibility of informing the
district court of the basis for its motion, and
identifying those portions of the pleadings,
depositions, answers to interrogatories, and
admissions on file, together with the
affidavits, if any, which it believes
demonstrate the absence of a genuine issue of
material fact.
Celotex, 477 U.S. at 323.

The burden then shifts to the

nonmovant to establish, by going beyond the pleadings, that
there is a genuine issue as to facts that are material to
the nonmovant's case. Clark v. Coats & Clark, Inc., 929
F.2d 604, 608 (11th Cir. 1991)
The Court must review the evidence and all reasonable
factual inferences arising from it in the light most
favorable to the nonmovant. Matsushita, 475 U.S. at 58788. However, the nonmoving party 'must do more than simply
show that there is some metaphysical doubt as to the

material facts."

Id. at 586.

A mere

- scintilla" of

evidence, or simply conclusory allegations, will not
suffice.

See, e.g., Tidwell v. Carter Prods., 135 F.3d

1422, 1425 (11th Cir. 1998) .

Nevertheless, where a

reasonable fact finder may "draw more than one inference
from the facts, and that inference creates a genuine issue
of material fact, then the Court should refuse to grant
summary judgment." Barfield v. Brierton, 883 F.2d 923,
933-34 (11th Cir. 1989)
II. DEFENDANTS MOTION FOR SUMMARY JUDGMENT
In their motion, Defendants contend that Plaintiffs'
wrongful foreclosure claim fails because Mrs. Holcomb
defaulted on her mortgage payments, and Defendants gave
Mrs. Holcomb proper notice of the impending foreclosure and
the opportunity to bring the loan current. (Doc. 78, Ex. A
at 8-11.) Under Georgia law, a plaintiff bringing a claim
for wrongful foreclosure must establish that the
foreclosing party owed the plaintiff a legal duty, the
foreclosing party breached that duty, a causal connection
between that breach and the plaintiff's injury, and
damages. Gregorakos v. Wells Fargo Nat'l Ass'n, 285 Ga.
App. 744, 747-48, 647 S.E.2d 289, 292 (2007) . According to
the Georgia Court of Appeals,

11 1[w]hen a power of sale [in

a security deed] is exercised all that is required of the
foreclosing party is to advertise and sell the property
according to the terms of the instrument, and that the sale
be conducted in good faith.' " Ceasar v. Wells Fargo Bank,
- Ga. App. , 744 S.E.2d 369, 373 (2013) (quoting
Kennedy v. Gwinnett Commercial Bank, 155 Ga. App. 327, 330,
270 S..E..2d 067 (1980)) (second alteration in original).
In this case, Plaintiffs have failed to point to any
evidence that, if true, established Defendants owed
Plaintiffs a legal duty that Defendants breached when
foreclosing on the property. In foreclosing on the
property, Defendants were exercising the power of sale
granted to them by the terms of the security deed.
Plaintiffs have failed to point to any evidence that
Defendants' actions violated the terms of that agreement or
that the actual sale of the property was not conducted in
good faith.
Rather, Plaintiffs seem to argue that Defendant WFB's
actions when discussing the possibility of loan
modification created additional duties that Defendants'
subsequently breached when foreclosing on the property,
such as providing additional notice of Defendant WFB's
decision to deny her request for modification and foreclose
10

on the property.

Yet, the documents relating to Mrs.

Holcomb's requested loan modification clearly state that
"any collection and foreclosure action will continue
uninterrupted until approval" (Doc. 1, Attach. 1, Ex. 8 at
1) , and that "the foreclosure action will continue as
scheduled until the lender is in receipt of any possible
down payment and signed repayment agreement" (id. Ex. 9 at
Even assuming Defendant WFB made certain oral

2) .

representations concerning Mrs. Holcomb's eligibility for
loan modification and its effect on any possible
foreclosure, the undisputed documentary evidence in the
record clearly states that the foreclosure process will
continue to move forward unabated by Mrs. Holcomb's request
for loan modification. Therefore, the record conclusively
establishes that Defendants assumed no additional duties
outside those imposed by the terms of the security deed.
Because

Plaintiff

does not

identify any evidence

establishing a breach of the terms of the security deed or
a statutorily imposed duty, Defendants are entitled to
summary judgment on Plaintiffs' claim for wrongful
foreclosure.
Plaintiffs' argument that the doctrine of promissory
estoppel operates to preclude Defendants from foreclosing
11

on the property is without merit.

Under Georgia law, a

plaintiff bringing a claim for promissory estoppel must
establish that '(1) the defendant made certain promises,
(2) the defendant should have expected that the plaintiffs
would rely on such promises, and (3) the plaintiffs did in
fact rely on such promises to their detriment." Adkins v.
Cagle Foods JV, LLC, 411 F.3d 1320, 1326 (11th Cir. 2005)
(citing Doll v. Grand Union Co., 925 F.2d 1363 (11th
Cir.1991)). The problem, of course, with Plaintiffs'
argument is that their own complaint establishes the
absence of any promise on the part of Defendants. In their
complaint, Plaintiffs state that 'the mandated default in
payments would lead to the consideration of a loan
modification" and there was never 'any promise to modify a
[sic] her loan." (Doc. 1, Attach. 1 ¶ 17,) As discussed
above, the loan modification documents routinely notified
Plaintiffs that the foreclosure process would continue
while Mrs. Holcomb sought the modification. In light of
this evidence, Plaintiff has failed to identify any
evidence in the record that establishes the existence of a
promise by Defendants not to foreclosure on the property.
As a result, Defendants are entitled to summary judgment on
this claim.
12

Finally,

Plaintiffs'

theory

concerning

mutual

departure is also without merit. "[A] mutual departure
from the terms of an agreement results in a quasi-new
agreement suspending the original terms of the agreement
until one party has given the other reasonable notice of
its intent to rely on the original terms." Vakilzadeh
Enters. v. Hous. Auth. of Cnty. of DeKalb, 281 Ga. App.
203, 206, 635 S.E.2d 825, 827 (2006) ; accord O.C.G.A. § 134-4. Inherent in this theory, of course, is the notion
that the parties mutually departed from the terms of the
original contract.
In this case, Plaintiffs appear to argue that Mrs.
Holcomb's request for a loan modification was somehow a
mutual departure that required Defendant WFB to provide
notice of its intent to return to the original contract and
foreclose under the terms of the security deed. The
problem with Plaintiffs' theory, however, is that all
evidence in the record is to the contrary. As discussed
above, the documents related to Mrs. Holcomb's request for
a loan modification all state that the terms of the
original mortgage remained in force during the pendency of
Mrs. Holcomb's loan modification application. The mere
consideration by Defendant WFB of possibly departing from
13

the terms of the original contract by modifying Mrs.
Holcomb's mortgage does not mean that they actually agreed
to any departure. Because there was no mutual departure
from the terms of the original mortgage, Defendants are
entitled to summary judgment on this claim.
In conclusion, Plaintiffs have failed to point to any
evidence in the record that, if true, would entitled them
to relief. First, Plaintiffs' wrongful foreclosure claim
fails because they have not identified any evidence in the
record indicating that Defendants failed to either
foreclose on the property according to the terms of the
security deed, or conduct the foreclosure sale in good
faith. Second, Plaintiffs' promissory estoppel theory
fails because they did not point to evidence in the record
establishing that Defendants made any promise to Plaintiffs
upon which Plaintiffs relied. Indeed, Plaintiffs'
complaint states that Defendants made no promises with
respect to Mrs. Holcomb's modification request. Finally,
Plaintiffs' mutual departure argument is without merit
because there is no evidence in the record that Defendants
agreed to depart from the terms of the original mortgage.
As noted above, the documentary evidence indicates the
opposite—that the status quo concerning Mrs. Holcomb's
14

default remained in effect while she sought a loan
modification. Because Plaintiffs are unable to point to
any evidence in the record to support their theories of
relief, Defendants are entitled to summary judgment.
Accordingly, Defendants' Motion for Summary Judgment is
GRANTED.
CONCLUSION

Before the Court is Defendants Wells Fargo Bank, N.A.
('WFB") and Federal Home Loan Mortgage Corporation's
("Freddie Mac") Motion for Summary Judgment. (Doc. 78.)
For the foregoing reasons, Defendants' Motion for Summary
Judgment (Doc. 78) is
DISMISSED.

GRANTED

and Plaintiffs' claims are

As a result, Plaintiffs' Motion for Partial

Summary Judgment (Doc. 51), Motion to Set Expert Witness
Report Deadlines (Doc. 75), and Motion to Dismiss Defenses
or Protective Order (Doc. 77) are

DISMISSED AS MOOT.

In

addition, Defendants' Motion to Compel Discovery (Doc. 71)
is also DISMISSED AS MOOT.

The Clerk of Court is DIRECTED

to close this case.
SO ORDERED this

day of September 2013.

WILLIAM T. MOORE, JR.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

15