Poor v. Wells Fargo Home Mortgage

Filing 48

///ORDER granting 28 Motion for Summary Judgment on plaintiff's remaining ECOA claim. Judgment shall be entered in favor of defendants and the case closed. So Ordered by Judge Steven J. McAuliffe. (lml)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE

Shawn Poor
v.

Case No. 17-cv-472-SM
Opinion No. 2018 DNH 219

Wells Fargo Home Mortgage,
a Division of Wells Fargo
Bank, N.A.; and U.S. Bank N.A.,
as Trustee for the Structured
Asset Investment Loan Trust
Mortgage Pass-Through
Certificates, Series 2005-8

O R D E R

Defendant banks move for summary judgment on plaintiff’s
remaining claim under the Equal Credit Opportunity Act (“ECOA”)
and related implementing regulations.

See 15 U.S.C. §

1691(d)(1); 12 C.F.R. § 1002.9(a)(1)(i).
While the parties engage on several issues (including
whether plaintiff filed a complete or incomplete loan
modification application; when that application was submitted;
when (or, if) it was “received” by the bank; and, whether
plaintiff suffered any cognizable damages arising from the
bank’s failure to give notice of any action on the application
under § 1691(d)(1)), the bank is entitled to judgment as a
matter of law for a preliminary reason.

The parties do not dispute that plaintiff was in default on
his mortgage loan at the time he claims to have submitted an
application for loan modification.
Plaintiff says the bank violated its obligation under ECOA
to notify him of any action on his application for credit (the
loan modification application) in a timely manner after he
allegedly submitted it in April of 2017.
§ 1691(d)(1).

See 15 U.S.C.

But, such notice was not required.

To be sure,

section 1691(d)(1) provides that, within thirty days after
receipt of a completed application for credit, a creditor shall
notify the applicant of its action on the application.

And, if

“adverse action” is taken, the applicant is entitled to a
statement of reasons for such action from the creditor.

Id.

But, it is not an “adverse action” to refuse “to extend
credit under an existing credit arrangement where the applicant
is delinquent or otherwise in default.”

15 U.S.C. § 1691(d)(6).

And, importantly,
The applicable regulations clarify that notification
is “required” only for approval, counteroffer, or
“adverse action.” 12 C.F.R. § 202.9(a)(1)(i). In
turn the regulations setting forth the definitions
applicable to § 202.9 and the surrounding ECOA
regulations state that “adverse action . . . does not
include . . . [a]ny action or forbearance relating to
an account taken in connection with inactivity,
default, or delinquency as to that account.” 12
C.F.R. §202.2(c)(2)(ii). “Thus to the extent the
statute was at all ambiguous about whether a
notification is required [under § 1691(d)(1)] where
the applicant is already in default, the implementing
regulations state clearly that no notice is required
in that circumstance.”
2

Sergeant v. Bank of America, N.A., C17-5232 BHS, 2017 WL 3895699
at *3 (W.D. Wash. Sept. 6, 2017) (quoting Smith v. Wells Fargo
Bank, N.A., 15-CV-01779-YGR, 2016 WL 283521, at 7 (N.D. Cal.
Jan. 25, 2016) (citing numerous cases)).

See also, MacDonald v.

Wells Fargo Bank, N.A., 14-CV-04970-HSG, 2017 WL 1150362 (N.D.
Cal. March 28, 2017) (same).
Plaintiff was in default on his loan when he allegedly
filed his loan modification application (and there appears to be
no period through foreclosure during which he was not in default
and filed a modification application).

Consequently, no ECOA

notice was required with respect to that application and
plaintiff’s remaining cause of action asserting a violation of
§ 1691(d)(1) necessarily fails.
Conclusion
Defendant’s motion for summary judgment on plaintiff’s
remaining ECOA claim (doc. no. 28) is granted.

Judgment shall

be entered in favor of defendant and the case closed.

SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
November 6, 2018
cc:

William C. Sheridan, Esq.
David D. Christensen, Esq.

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