Coates v. Wells Fargo Home Mortgage
MEMORANDUM DECISION granting 31 Motion for Judgment on the Pleadings. Signed by Judge Ted Stewart on 08/09/2011. (tls)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
MEMORANDUM DECISION AND
ORDER GRANTING DEFENDANT’S
MOTION FOR JUDGMENT ON THE
WELLS FARGO HOME MORTGAGE,
INC., a subsidiary of Wells Fargo Bank, N.A.,
Case No. 2:11-CV-67 TS
This matter is before the Court on Defendant’s Motion for Judgment on the Pleadings.
Plaintiff has not responded to the Motion. For the reasons discussed below, Defendant’s Motion
will be granted.
The only remaining claim in this matter is Plaintiff’s breach of contract claim.1 The
following allegations are relevant to Plaintiff’s breach of contract claim. Defendant agreed to
temporarily modify Plaintiff’s loan and advised Plaintiff to send partial payments. Such partial
Plaintiff’s other claims were previously dismissed. Docket No. 24.
payments would be credited to her account. Plaintiff agreed to this modification and, thereafter,
sent Defendant partial payments as agreed. Defendant, however, failed to apply the payments to
Plaintiff’s account and, instead, assessed penalties and late fees and applied the partial payments
to the penalties and late fees. As a result of Defendant’s misapplication of Plaintiff’s payments,
Defendant placed Plaintiff’s loan into default status and began foreclosure proceedings.
Defendant seeks judgment on this claim arguing that it is barred by the statute of frauds.
Plaintiff has not responded to the Motion, but has filed a Notice of Voluntary Dismissal.
However, because Defendant has filed an Answer Plaintiff cannot voluntarily dismiss this case
without a court order.2 Therefore, the Court will proceed to consider Defendant’s unopposed
“A motion for judgment on the pleadings under Rule 12(c) is treated as a motion to
dismiss under Rule 12(b)(6).”3 The same standard is used when evaluating 12(b)(6) and 12(c)
motions.4 In considering a motion to dismiss under Rule 12(b)(6), all well-pleaded factual
allegations, as distinguished from conclusory allegations, are accepted as true and viewed in the
light most favorable to Plaintiff as the nonmoving party.5 Plaintiffs must provide “enough facts
Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1160 (10th Cir. 2000).
Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 n.2 (10th Cir. 2002).
GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.
to state a claim to relief that is plausible on its face.”6 All well-pleaded factual allegations in the
amended complaint are accepted as true and viewed in the light most favorable to the nonmoving
party.7 But, the court “need not accept . . . conclusory allegations without supporting factual
averments.”8 “The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence
that the parties might present at trial, but to assess whether the plaintiff’s complaint alone is
legally sufficient to state a claim for which relief may be granted.”9
Defendant argues that Plaintiff’s breach of contract claim is barred by the statute of
frauds. The statute of frauds requires that a contract creating an interest in real property be in
writing.10 Further, “if an original agreement is within the statute of frauds, a subsequent
agreement which modifies the original written agreement must also satisfy the requirements of
the statute of frauds to be enforceable.”11 However, Utah law recognizes an exception to the
statute of frauds where there is part performance.
The Court previously found that there were sufficient allegations in the Complaint to
withstand Defendant’s statute of frauds argument. Defendant argues, however, that there are
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007).
GFF Corp., 130 F.3d at 1384.
S. Disposal, Inc., v. Tex. Waste, 161 F.3d 1259, 1262 (10th Cir. 1998); Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991).
Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991).
Utah Code Ann. § 25-5-1.
Golden Key Realty, Inc. v. Mantas, 699 P.2d 730, 732 (Utah 1985).
insufficient allegations in the Complaint to meet the partial performance exception to the statute
The part performance exception to the statute of frauds requires the following showing:
First, the oral contract and its terms must be clear and definite; second, the acts
done in performance of the contract must be equally clear and definite; and third,
the acts must be in reliance on the contract. Such acts in reliance must be such that
a) they would not have been performed had the contract not existed, and b) the
failure to perform on the part of the promisor would result in fraud on the
performer who relied, since damages would be inadequate.12
Evidence of partial performance must be strong and acts of part performance must be elusively
referable to the contract.13 “‘If the acts relied on were not done in the execution of the oral
contract but can be explained on another ground, they are insufficient to remove the bar of the
statute of frauds and the contract is unenforceable.’”14
Defendant argues that Plaintiff’s Complaint is insufficient because: (1) the allegations
fail to clearly and definitely define the terms of the alleged oral contract or the acts taken under
such an agreement; and (2) the allegations of part performance are not exclusively referable to
the alleged oral agreement. The Court agrees.
Plaintiff’s Complaint broadly describes an oral agreement whereby Defendant agreed to
accept reduced payments. The Complaint, however, fails to identify the amount of any such
payments, the timing of the payments, and the duration of the alleged modification. Without
Randall v. Tracy Collins Trust Co., 305 P.2d 480, 484 (Utah 1956).
Martin v. Scholl, 678 P.2d 274, 275, 277 (Utah 1983).
Id. at 277 (quoting McDonald v. Barton Bros. Inv. Corp., 631 P.2d 851, 853 (Utah
such allegations, the Court finds Plaintiff’s Complaint to be deficient. Additionally, the Court
finds that Plaintiff’s allegations of part performance are not exclusively referable to the alleged
oral agreement. Rather, Plaintiff’s partial payments can be explained on other grounds, namely
Plaintiff’s obligations under the original loan agreement. Therefore, the Court finds that
Plaintiff’s Complaint fails to state a claim for breach of contract because the alleged oral
agreement is barred by the statute of frauds and does not come within the partial performance
It is therefore
ORDERED that Defendant’s Motion for Judgment on the Pleadings (Docket No. 31) is
GRANTED. Plaintiff’s Complaint is dismissed with prejudice. The Clerk of the Court is
directed to close this case.
DATED August 9, 2011.
BY THE COURT:
United States District Judge
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