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

Filing 46

ORDER (Memorandum 45 filed previously as separate docket entry) - It is hereby ORDERED that: 1. Report of Magistrate Judge Schwab 40 ADOPTED to extent it recs dismissal of Kellys' negligence claim, breach of contract claim for lack of stan ding udring 2008 foreclosure proceedings & breach of contract claim for failure to provide an acct'ng - ct DECLINES to adopt remainder of rpt.; 2. Wells Fargo's MTD 30 is GRANTED in part & DENIED in part as follows... (See Paras 2a-d for specifics).; 3. Matter shall proceed solely w/ re: the Kellys' breach of contract claim re: Wells Fargo's July 2008 entry onto subject property.; 4. Matter REMANDED to Magistrate Judge Schwab for further proceedings & pretrial management. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 3/25/15. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DAVID W. KELLY and JOAN L.
KELLY,
Plaintiffs
v.
WELLS FARGO BANK, N.A.,
Defendant

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CIVIL ACTION NO. 1:13-CV-2298
(Chief Judge Conner)

ORDER
AND NOW, this 25th day of March, 2015, upon consideration of the amended
complaint (Doc. 27) of plaintiffs David W. Kelly and Joan L. Kelly (the “Kellys”) and
the motion (Doc. 30) to dismiss same by defendant Wells Fargo Bank, N.A. (“Wells
Fargo”), and further upon consideration of the report and recommendation (Doc.
40) of Magistrate Judge Susan E. Schwab, and the objection (Doc. 41) thereto filed
by Wells Fargo, and for the reasons stated in the accompanying memorandum, it is
hereby ORDERED that:
1.

The report (Doc. 40) of Magistrate Judge Susan E. Schwab is
ADOPTED to the extent it recommends dismissal of the Kellys’
negligence claim, the breach of contract claim for lack of standing
during the 2008 foreclosure proceedings, and the breach of contract
claim for failure to provide an accounting. The court declines to adopt
the remainder of the report.

2.

Wells Fargo’s motion (Doc. 30) to dismiss is GRANTED to the following
extent:

a.

The Kellys’ negligence claim relating to Wells Fargo’s July 2008
entry onto the subject property is DISMISSED as untimely.

b.

The Kellys’ breach of contract claims for lack of standing during
the 2008 foreclosure proceedings and for failure to provide an
accounting are DISMISSED for failure to state a claim for which
relief may be granted.

c.

The Kellys’ breach of contract claims challenging the propriety
of the 2008 and 2012 foreclosures, the escrow deficit, and the
acceleration of payments in connection with those foreclosure
proceedings are DISMISSED pursuant to the doctrine of
collateral estoppel.

d.

The motion is DENIED in all other respects.

3.

This matter shall proceed solely with respect to the Kellys’ breach of
contract claim pertaining to Wells Fargo’s July 2008 entry onto the
subject property.

4.

The above-captioned matter is REMANDED to Magistrate Judge
Schwab for further proceedings and pretrial management.

/S/ Christopher C. Conner
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania