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

Filing 10

SUMMARY ORDER: Plaintiffs to show cause as outlined by July 11, 2013. Defendant to respond as outlined. So Ordered by Chief Judge Joseph N. Laplante.(jb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Frederick Poisson and Virginia
Poisson
v.

Civil No. 13-cv-211-JL

Wells Fargo Bank, N.A.
SUMMARY ORDER
In their response to defendant Wells Fargo Bank, N.A.’s
motion to dismiss, the plaintiffs have made clear that their
claim to relief rests entirely on the theory that they entered
into a contract with Wells Fargo to short-sell their property,
and that Wells Fargo breached that agreement–-and the covenant of
good faith inherent in it--when it proceeded with foreclosure
anyway.

The plaintiffs’ theory of contract formation runs as

follows:

they “made an offer when they promised to sell the

[property] and give all the proceeds to the bank.”

Pls.’ Memo.

in Supp. of Obj. to Mot. to Dismiss (document no. 7-1) at 4.
Wells Fargo engaged their offer by “mail[ing] Plaintiffs a letter
telling them they may qualify for a short sale.”

Id.

That

letter stated, among other things, that if Wells Fargo approved
their application for a short sale, the plaintiffs could “then
list [their] property (like any other home sale) with a local
real estate broker.”
omitted).

Id. at 5 (quoting letter) (emphasis

When, after the plaintiffs submitted their

application, Wells Fargo “requested the listing agreement of the
property on two separate occasions,” it thus “accepted
Plaintiff’s [sic] offer,” because if it had not intended to do
so, “it would have had no reason to request the listing
agreement.”

Id.

The court accepts, strictly for present purposes, the
plaintiffs’ contention that they made an “offer” supported by
“consideration” to Wells Fargo, as those terms have been defined
by New Hampshire common law, and that the terms of that offer
were sufficiently definite.

The court also assumes, as the

plaintiffs do, that Wells Fargo’s letter in response to their
“offer” did not itself operate as an acceptance, rejection, or
counter-offer, but was merely an expression of Wells Fargo’s
willingness to consider the “offer” once the plaintiffs furnished
Wells Fargo with further information.

Accepting all of that, it

is still difficult to conclude that Wells Fargo manifested its
intent to accept the plaintiffs’ “offer” simply by requesting the
listing agreement.
“Acceptance of an offer is a manifestation of assent to the
terms thereof made by the offeree in a manner invited or required
by the offer.”

Restatement (Second) of Contracts § 50(1) (1981);

see, e.g., Panto v. Moore Bus. Forms, Inc., 130 N.H. 730, 735
(1988).

An offeree may manifest assent through its conduct–-as

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the plaintiffs maintain Wells Fargo did--but “[t]he conduct of a
party is not effective as a manifestation of his assent unless he
. . . knows or has reason to know that the other party may infer
from his conduct that he assents.”
Contracts § 19(2).

Restatement (Second) of

Based upon the information presently before

the court, no reasonable factfinder could conclude that Wells
Fargo had “reason to know that” the plaintiffs might “infer from
[its] conduct” that it assented to their “offer.”
The letter Wells Fargo sent to the plaintiffs did not state
that it would demonstrate its acceptance by requesting a listing
agreement.

To the contrary, it stated that if the plaintiffs

qualified for a short sale, Wells Fargo would “send [them] a
Short Sale Agreement which will outline [their] next steps and
obligations.”

Compl. Exh. B at 3 (document no. 3 at 16).

The

letter continued:
We will start by providing to you the acceptable sale
proceeds (the minimum amount that we must receive after
sales costs) from the sale of your property. We will
also identify the sales cost that may be deducted from
the final sales price. You then list your property
(like any home sale) with a local real estate broker.
Id.

The letter therefore stated that if Wells Fargo agreed to a

sale of the property–-“accepting” the plaintiffs’ “offer”1--it

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What is outlined in the letter does not actually seem to be
a process by which Wells Fargo would accept the plaintiffs’
“offer,” but a process by which Wells Fargo would make a counteroffer (assuming, again, that plaintiffs actually made an offer in
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would do several things.

It would send a “Short Sale Agreement.”

It would tell the plaintiffs the “acceptable sale proceeds.”

It

would “identify the sales costs that may be deducted from the
final sales price.”

Plaintiffs do not allege that Wells Fargo

did any of those things.
Where Wells Fargo clearly outlined the actions that it would
take upon accepting the plaintiffs’ “offer,” and requesting a
listing agreement was not among them, it is not reasonable to
conclude that Wells Fargo had reason to know the plaintiffs would
construe such a request as acceptance.

The court is, however,

reluctant to dispose of this action on these grounds without
giving the plaintiffs an opportunity to identify any evidence
they may have which demonstrates that Wells Fargo’s request for a
listing agreement did, in fact, constitute an acceptance of their
“offer.”

Therefore, pursuant to Rule 56(f) of the Federal Rules

of Civil Procedure, the plaintiffs are ordered to show cause on
or before July 11, 2013 why summary judgment should not be
entered for Wells Fargo on the grounds that no rational finder of
fact could conclude that Wells Fargo accepted the plaintiffs’

the first place). Because the plaintiffs characterize Wells
Fargo’s subsequent conduct as an “acceptance,” however, the court
will indulge them and do the same.
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“offer.”2

Any written memorandum accompanying the plaintiffs’

filing shall not exceed ten (10) pages (exclusive of exhibits).
Wells Fargo may submit a written response within fourteen (14)
days of the plaintiffs’ submission; that response also shall not
exceed ten (10) pages (again, exclusive of exhibits).
SO ORDERED.

Joseph N. Laplante
United States District Judge
Dated:
cc:

June 26, 2013

Jeremey A. Miller, Esq.
Samuel J. Donlon, Esq.
Michael R. Stanley, Esq.

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The court anticipates that plaintiffs already have any
information relevant to whether Wells Fargo’s alleged acceptance
of their offer in their possession or control, and that they will
not need discovery on this issue. The court is nonetheless
willing to entertain a motion for discovery under Rule 56(d).
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