Needham v. Fannie Mae et al
Filing
75
MEMORANDUM DECISION granting 41 Motion for Judgment on the Pleadings. Signed by Magistrate Judge David Nuffer on 02/21/2012. (asp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
AARON NEEDHAM aka AARON D.T.
NEEDHAM, an individual,
Plaintiff,
v.
FANNIE MAE; eTITLE INSURANCE
AGENCY, a Utah limited liability company;
WELLS FARGO BANK, N.A., a South
Dakota Corporation; SHALOM
RUBANOWITZ, an individual; 2020
PROPERTIES LLC, a Utah limited liability
company; KRISTINE J. CARTER, an
individual; and DOES 1-25 [Individual,
Partnerships, Corporations or anyone claiming
any interest to the property described herein],
MEMORANDUM DECISION AND
ORDER GRANTING DEFENDANT
WELLS FARGO BANK N.A.’S MOTION
FOR JUDGMENT ON THE PLEADINGS
Case No. 2-11-CV-00260 DN
Magistrate Judge David Nuffer
Defendants.
This case is before the magistrate judge by consent of the parties pursuant to
28 U. S. C. § 636(c). The magistrate judge has reviewed Defendant Wells Fargo Bank, N.A.’s
(Wells Fargo) Motion for Judgment on the Pleadings. 1 For the reasons set forth below, Wells
Fargo’s motion is GRANTED.
Nature of this Case
This case was removed from Fifth Judicial District Court, Washington County, State of
Utah by the consent of all defendants served. 2 Wells Fargo seeks a judgment of dismissal based
on the pleadings, pursuant to 12(c) of the Federal Rules of Civil Procedure, on Needham’s
twelve claims for (i) breach of contract; (ii) breach of the implied covenant of good faith and fair
1
Wells Fargo Bank, N.A.’s Motion for Judgment on the Pleadings, docket no. 41, filed August 10, 2011.
2
Notice of Removal, docket no. 2, filed March 17, 2011.
dealing; (iii) promissory estoppel; (iv) unjust enrichment; (v) fraud; (vi) setting aside the
trustee’s sale; (vii) voiding the trustee’s deed; (viii) voiding assignment of the trustee’s deed; (ix)
negligence; (x) wrongful foreclosure; (xi) declaratory relief and quiet title; and (xii) violation of
the federal Fair Housing Act. 3
Factual Overview
The factual setting for these claims is complex. This paragraph will provide a summary
overview of relevant facts.
Needham borrowed money from Wells Fargo and from a superior lender. Wells Fargo
foreclosed its lien unaware of Needham’s bankruptcy filing. Therefore, Wells Fargo modified its
loan terms by agreement with Needham, and received payments from Needham. Needham fell
ill and stopped making payments. The superior lender foreclosed on the Needham property.
Wells Fargo’s lien was foreclosed along with Needham’s equity position. Excess proceeds from
that trustee’s sale were interplead and adjudicated in Fifth District Court in Washington County,
Utah.
Standard for Judgment on the Pleadings
The standard of review for dismissal under Rule 12(c) is the same as the standard for
dismissal under Rule 12(b)(6). 4 Accordingly, the Court takes as true all of Plaintiff’s wellpleaded factual allegations, but need not accept “legal conclusions,” or “[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory statements.” 5 The Court should
dismiss Plaintiff’s claims unless the well-pleaded allegations in the Complaint “state a claim for
3
Wells Fargo Bank, N.A.’s Motion for Judgment on the Pleadings, at 2.
4
Nelson v. State Farm Mut. Auto. Ins. Co., 419 F.3d 1117, 1119 (10th Cir. 2005).
5
Bixler v. Foster, 596 F.3d 751, 756 (10th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)).
2
relief that is plausible on its face.” 6 Consistent with the approach that this motion is a true
motion for judgment on the pleadings, Wells Fargo relied in its motion on facts “either taken
from Plaintiff’s Complaint . . . or . . . from the attached exhibits, which are copies of documents
referred to in Plaintiff’s Complaint and central to Plaintiff’s claims.” 7
Needham has objected to the use of this standard because Wells Fargo has “introduced
several exhibits as part of their motion for judgment on the pleadings” which “are not part of the
initial complaint and its exhibits.” 8 Therefore, Needham says “the motion to dismiss must be
converted to one for summary judgment.” 9
However, all exhibits Wells Fargo has introduced are copies of documents referred to in
Plaintiff’s Complaint and central to Plaintiff’s claims. The use of exhibits specifically referenced
by Plaintiff does not convert a pleadings-based motion to a motion for summary judgment.
[I]f a plaintiff does not incorporate by reference or attach a document to its
complaint, but the document is referred to in the complaint and is central to the
plaintiff's claim, a defendant may submit an indisputably authentic copy to the
court to be considered on a motion to dismiss.
If the rule were otherwise, a plaintiff with a deficient claim could survive a
motion to dismiss simply by not attaching a dispositive document upon which the
plaintiff relied. Moreover, conversion to summary judgment when a district court
considers outside materials is to afford the plaintiff an opportunity to respond in
kind. When a complaint refers to a document and the document is central to the
plaintiff's claim, the plaintiff is obviously on notice of the document's contents,
and this rationale for conversion to summary judgment dissipates. 10
6
Bixler, 596 F.3d at 756 (quoting Iqbal, 129 S.Ct. at 1949).
7
Wells Fargo Bank, N.A.’s Memorandum in Support of Motion for Judgment on the Pleadings (Supporting
Memorandum) at 3, docket no. 42, filed August 10, 2011.
8
Memorandum in Opposition to Wells Fargo Bank, N.A.’s Motion for Judgment on the Pleadings (Opposing
Memorandum) at 2, docket no. 53, filed September 14, 2011.
9
Id.
10
GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F. 3d 1381, 1384-85 (10th Cir. 1997) (citations omitted).
3
Because Needham is obviously aware of documents he referenced in, but failed to attach to his
complaint, Wells Fargo is entitled to supply the actual documents to the court and rely on them
in a motion for judgment on the pleadings.
Needham did file an affidavit alleging facts outside the complaint. 11 These facts relate to
a defective foreclosure conducted by Wells Fargo before a loan modification between the parties
and before the foreclosure sale of another trust deed which eventually resulted in Needham’s
eviction from the home. Therefore, the four factual paragraphs of his affidavit are not material to
any viable claims. That affidavit does not convert this motion to a motion for summary
judgment.
Needham also provided (without authentication) a copy of the Notice of Trustee’s Sale
from the defective Wells Fargo foreclosure; 12 and documents from the Office of the Comptroller
of the Currency; 13 and a court docket from the interpleader of funds from the actual foreclosure
sale. 14 None of these are pertinent to an analysis of claims under the Complaint.
FACTS ALLEGED IN THE COMPLAINT
Wells Fargo’s opening memorandum 15 relied on the following facts, “either taken from
Plaintiff’s Complaint . . . or . . . from . . . copies of documents referred to in Plaintiff’s
Complaint . . . .” 16 The facts retain the numbering given in Wells Fargo’s Supporting
Memorandum. Citations to the Complaint are omitted.
1. Plaintiff purchased property described as “All of lot ninety-seven (97), Pine
View Estates—Phase 5, a residential subdivision, according to the official plat
11
Second Affidavit of Aaron Needham, docket no. 53-4, Exhibit F, filed September 14, 2011.
12
Exhibit A to Opposing Memorandum.
13
Exhibits B – D to Opposing Memorandum.
14
Exhibit E to Opposing Memorandum.
15
Supporting Memorandum at 3-5. Citations to supporting documents have been omitted.
16
Supporting Memorandum at 3.
4
thereof on file in the office of the Washington County Recorders Office, State of
Utah (the “Property”) in September 1995 under a purchase money mortgage
provided by Zions First National Bank (“Zions”). Plaintiff paid off that loan in
March 1996.
2. In May 1997, Plaintiff obtained a second loan from Zions, again secured by the
Property.
3. In June 1999, Plaintiff obtained yet another loan, this time from Sunbelt
National Mortgage, which was again secured by the Property. The Zions deed of
trust was subordinated to this Sunbelt deed of trust, so that Sunbelt was in first
position and Zions was in second.
4. On or about May 16, 2003, Plaintiff executed an “EquityLine with Convertible
Loan Feature Account Agreement” (the “line of credit”) from Wells Fargo,
pursuant to which he was authorized to borrow up to $73,000 from Wells Fargo.
5. As security for the line of credit, Plaintiff executed a Short Form Deed of Trust
to the Property in favor of Wells Fargo which incorporated by reference a Master
Form Deed of Trust previously recorded by Wells Fargo.
6. Plaintiff borrowed funds from Wells Fargo under the line of credit and then
defaulted on his loan.
7. On or about July 9, 2008, the trustee under the Wells Fargo Deed of Trust
executed a Notice of Default and Election to Sell (the “Notice of Default”) and
recorded the Notice of Default in the official records of the Washington County
Recorder, with an entry number of 20080027726.
8. Plaintiff did not cure his default. On December 17, 2009, the trustee under the
Wells Fargo Deed of Trust conducted a non-judicial foreclosure of the Property.
9. Wells Fargo purchased the Property at the December 17 foreclosure sale, and
paid funds to discharge Plaintiff’s debt to the two senior lenders in an attempt to
elevate the priority of its third-position lien.
10. On December 17, 2009, without notice to Wells Fargo, Plaintiff filed for
bankruptcy under Chapter 13 of the United States Bankruptcy Code. As a result,
once Wells Fargo learned of this second bankruptcy, it sought to rescind its
payoffs to the two senior lenders. The first position lender returned the funds; the
second position lender, Zions Bank, did not. Instead, Zions credited Plaintiff’s
account and recorded a Deed of Reconveyance releasing its security interest in the
Property.
11. Plaintiff did not move to set aside Wells Fargo’s foreclosure during this
second bankruptcy. Instead, he sought a continuance of his bankruptcy
confirmation hearing to enable Wells Fargo to resolve these issues with the other
lenders.
5
12. During that time, Plaintiff, who was represented by bankruptcy counsel,
negotiated with Wells Fargo to restructure his Wells Fargo and Zions debts. As a
result, the amount Wells Fargo paid to Zions was made part of Plaintiff’s
principal obligation to Wells Fargo. Plaintiff’s monthly payment amounts were
reduced to $388.58 per month and the interest rate, which previously was
variable, with a floor of 4.49%, was reduced to 0.0%.
13. Thereafter, Plaintiff’s chapter 13 bankruptcy was dismissed on or about June
7, 2010.
14. Later that month, on June 23, 2010, the trustee under the Fannie Mae deed of
trust, the successor on the original Sunbelt Deed of Trust, recorded a notice of
default. Five months later, on November 4, 2010, Fannie Mae foreclosed on the
Property—not Wells Fargo. A third party, defendant 2020 Properties, LLC,
purchased the Property at the Fannie Mae trustee’s sale for $161,000 and has
since taken possession of the Property.
In his opposing memorandum, 17 Needham cited additional material facts from the
Complaint, and from two unauthenticated exhibits attached to his memorandum. Facts which are
not material are not restated here. Numbering is retained from Needhams’ statement:
[Facts 1-3 related to Mr. Needham’s disability.]
4. In Spring of 2009, Plaintiff applied for and was successful in receiving a loan
modification from Wells Fargo. Payments were made under the agreement until
foreclosure.
[Fact 5 notes Wells Fargo’s answer admits the preceding Fact 4.]
[Fact 6 refers again to Plaintiff’s disability.]
7. In November 2009, Plaintiff informed Wells Fargo that he needed to make new
arrangements for his loan modification since he had been unable to start work
because he had contracted MRSA while staying in the hospital due to his
disability.
8. After accepting payments and being informed about the sickness, Defendant
Wells Fargo informed Plaintiff that they were no longer going to follow the loan
modification agreement and were going to foreclose on the real property.
9. On October 8, 2009, October 15, 2009 and October 22, 2009, Defendant Wells
Fargo published notice of its Trustee’s Sale regarding the subject property.
17
Opposing Memorandum at 3-7. Citations to supporting documents have been omitted.
6
[Facts 10 - 12 relate to the invalid Wells Fargo foreclosure in December 2009.]
[Facts 13 – 21 relate to the Office of the Comptroller of the Currency.]
22. The property was the subject of a trustee’s sale that was held on November 4,
2010.
23. At the foreclosure sale, defendant 2020 Properties LLC was the successful
bidder, bidding and paying the sum of $161,000.00 for the trust deed property.
That sum exceeded the total amount owed to the first lien-holder of the trust deed.
24. After deducting attorney’s fees and costs of submitting the excess sale
proceeds, the trustee submitted the excess sale proceeds in the amount of
$14,776.86 to the Washington County District Court Clerk in accordance with
provisions of § 57-1-29, Utah Code Annotated.
[Fact 25 refers to a result in an allegedly similar case in this court.]
26. Wells Fargo also had constructive notice of Mr. Needham's bankruptcy filing
because it is a matter of public record.
These additional facts marshaled by Needham do not cure the failure of the complaint to
state a claim.
DISCUSSION
Needham fundamentally misunderstands the issues in the case. The opening page of his
memorandum opposing this motion refers to the admittedly invalid, ineffectual Wells Fargo
foreclosure: “Mr. Aaron Needham (hereinafter “Mr. Needham”) seeks to recover possession of
his home that was wrongfully foreclosed on by Wells Fargo . . . . Wells Fargo did not follow
proper procedure in foreclosing on Mr. Needham.” 18 He refers later to the Wells Fargo
foreclosure: “[T]his case presents issues of material fact about whether defendant Wells
Fargo . . . allowed for fraud or irregularities when they foreclosed . . . .” 19 Needham also claims
that issues with the Wells Fargo documentation prevent the court from granting this motion.
“Thus, whether the assignment of trust deed/mortgage, substitution of trustee, or notice of default
18
Opposing Memorandum at 1.
19
Id. at 9.
7
were ever properly recorded and whether there is a properly negotiated promissory note in this
case are genuine issues of material fact that must be submitted to a jury.” 20
With this fixation on the Wells Fargo loan and its foreclosure, Needham’s arguments
miss the point of Wells Fargo’s motion. Wells Fargo conducted an invalid foreclosure sale, but
that only resulted in a very favorable loan modification. Wells Fargo was foreclosed out and was
not the party that foreclosed him out. When Needham lost his property, Wells Fargo lost its
security.
Contract-Related Claims
Needham’s verified complaint contains four contract-related claims against Wells Fargo:
(1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing; (3)
promissory estoppel; and (4) unjust enrichment. 21 Needham’s papers on this motion do not
argue the viability of these claims.
In his breach of contract claim 22 Needham alleges
The Foreclosing Defendants [defined to include Wells Fargo 23] breached the note
and deed of trust by failing to account for and apply the payments made by
Plaintiff to Plaintiff’s loan, the result of which led to the Foreclosing Defendants
eventually foreclosing on the Subject Property. 24
Needham suffered no loss by any foreclosure by Wells Fargo. That foreclosure was
rescinded after the automatic bankruptcy stay was discovered. The actual foreclosure of
Needham’s property was under the superior lien, the Sunbelt Trust Deed. Therefore any
misapplications of payments by Wells Fargo had no effect on his loss of the property.
20
Id. at 10.
21
Verified Complaint (Complaint), docket no 2-1, filed March 17, 2011.
22
Complaint ¶¶ 76-83..
23
Id. ¶ 10.
24
Id .¶ 79.
8
Needham also says “Wells Fargo breached its loan modification agreement.” 25 He fails
to specify how. Needham entered into a loan modification on April 29, 2010 which extinguished
any prior agreements or preexisting contractual duties between the parties. 26 He admits the
modification, 27 but fails to identify any specific breach of that modification agreement. He does
allege that “[o]n or about July 2010, Plaintiff received notice that the owner of the Sunbelt loan
was filing bankruptcy and would no longer be able to offer their loan modification.” 28 But this is
a breach of a different modification agreement with a different lender, not a breach of Wells
Fargo’s modification agreement.
In his claims for breach of the covenant of good faith and fair dealing, 29 Needham alleges
that Wells Fargo “engaged in [bad faith] conduct to drive Plaintiff into foreclosure so that they
could acquire the Subject Property with its large equity at a bargain basement price.” 30 He also
alleges other bad faith conduct “when Wells Fargo allowed their alleged agent to execute the
Trustee's Deed, Notice of Default and Substitution of Trustee (in order to appoint a new Trustee
to begin foreclosure on the Subject Property).” 31 Needham’s complaint does not explain why
these standard foreclosure activities constitute bad faith conduct, and in his papers on this motion
does not argue to save this cause of action.
Needham’s claims for promissory estoppel 32 and unjust enrichment 33 fail as a matter of
law because the parties had an enforceable contract. “Recovery in quasi contract is not available
25
Id. ¶ 81.
26
Supporting Memorandum at 8.
27
Complaint ¶ 80.
28
Id. ¶ 42.
29
Id. ¶¶ 84-89
30
Id. ¶ 87.
31
Id. ¶ 89.
32
Id. ¶¶ 92-97.
9
where there is an express contract covering the subject matter of the litigation.” 34 Needham’s
opposition to the motion also fails to counter Wells Fargo’s arguments on this point.
Negligence Claim
Needham’s negligence claim alleges that Wells Fargo, “ ‘acting as plaintiff’s lender and
loan servicer,’ breached a duty to Plaintiff by (1) foreclosing on the property ‘without legal
authority,’ (2) failing to maintain proper loan records, and (3) failing to accurately credit
Plaintiff’s payments to his account.” 35 Wells Fargo argues that these claims “constitute alleged
breaches of contractual duties, and so [damages] are not recoverable in tort” under the economic
loss rule. 36
When the parties’ relationship is governed by contract, the economic loss rule provides
that “economic damages are not recoverable in negligence absent physical property damage or
bodily injury.” 37 Needham has not alleged any physical property damage. He does not argue
that any physical property damage occurred to take his claims out of the economic loss rule.
Needham argues that there is a fiduciary duty between a trustee and a trustor under a deed
of trust, which gives rise to a tort-based duty of care and therefore the economic loss rule does
not apply to claims arising out of non-judicial foreclosures. 38 However, as a matter of law,
fiduciary duties do not exist between a lender and a borrower. 39 And while a plurality opinion in
33
Id. ¶¶ 98-104.
34
MediaNews Group, Inc. v. McCarthey, 432 F. Supp. 2d 1213, 1238 (D. Utah 2006) (quoting Mann v. Am. W. Life
Ins. Co., 586 P.2d 461, 465 (Utah 1978)).
35
Supporting Memorandum at 9-10 (quoting Complaint ¶¶ 112-113).
36
Id. at 10 (emphasis in original).
37
SME Indus., Inc. v. Thompson, Ventulett, Stainback & Assocs., Inc., 28 P.3d 669, 680 (Utah 2001) quoting
American Towers Owners Ass'n, Inc. v. CCI Mech., Inc., 930 P.2d 1182, 1189 (Utah 1996).
38
Opposing Memorandum at 12.
39
Ramos v. Countrywide Bank, FSB, Case No. 2:09-CV-449 TS, 2009 U.S. Dist. LEXIS 99909, at *14 (D. Utah
Oct. 26, 2009) (unpublished). See also State Bank of S. Utah v. Troy Hygro Sys., Inc., 894 P.2d 1270, 1275 (Utah
Ct. App. 1995) (“Ordinarily, no fiduciary relationship exists between a bank and its customer”).
10
one Utah case has found fiduciary duties to exist between a debtor and trustee of a trust deed,
that case involved a trustee with which the debtor had “a significant previous business
history . . . .” 40 No similar facts are alleged here. There is no support for Needham’s argument
that the economic loss rule does not apply.
Claim for Fraud and Derivative Claims
Plaintiff also asserts three claims based on fraud. The most substantial claim is based on
Wells Fargo’s alleged false promise to negotiate a loan modification alleged in the eleventh
cause of action. 41 This claim is barred by the statute of frauds which requires that any contract
establishing an interest in real property must be written to be enforceable. 42 “The rule is well
settled in Utah that 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.” 43 Needham cannot sue on an unenforceable oral promise
to make an agreement regarding real property.
Needham’s papers on this motion fail to address Wells Fargo’s assertion that his fraud
claims are barred by the statute of frauds. Needham argues in his papers that he was a victim of
constructive fraud by reason of a “confidential relationship” between him and Wells Fargo, and
breach of fiduciary duties by the Wells Fargo foreclosure. 44 However, the complaint does not
contain any allegations of constructive fraud or breach of fiduciary duty. 45
40
Blodgett v Martsch, 590 P.2d 298, 300 (Utah 1978).
41
Complaint ¶¶ 115-128.
42
Utah Code Ann. §§ 25-5-1, 25-5-3.
43
Golden Key Realty v. Mantas, 699 P.2d 730, 732 (Utah 1985).
44
Opposing Memorandum at 12.
45
A constructive fraud claim requires: “(i) a confidential relationship between the parties; and (ii) a failure to
disclose material facts.” d’Elia v. Rice Dev., Inc., 147 P.3d 515, 526 (Utah Ct. App. 2006) (quoting Jensen v. IHC
Hosps., 944 P.2d 327, 339 (Utah 1997)).
11
Needham’s complaint also mentions fraud in his first cause of action to “Set Aside
Trustee’s Sale” and second cause of action to “Void the Trustee’s Deed.” Apparently fraud is
the basis for the relief sought, though fraud is not particularly plead.
The Foreclosing Defendants committed fraud in the process of foreclosing,
because they failed to disclose to Plaintiff that they never had the intention to
modify his loan, which is a material fact. 46
Although the trustee’s deeds upon sale appears [sic] valid on their face, they are
invalid, and of no force and effect, for the reasons set forth above . . . along with
the fraudulent conduct and irregularities in the process. 47
These causes of action state no factual basis for fraud. The only factual basis for fraud is alleged
in the eleventh cause of action, which has been shown to be an insufficient allegation. The first
cause of action to “Set Aside Trustee’s Sale” and second cause of action to “Void the Trustee’s
Deed” fail to state a fraud claim.
Foreclosure-Related Claims
a. Wrongful Foreclosure
Needham’s wrongful foreclosure cause of action alleges that (1) his note was sold to
investors; (2) Wells Fargo does not have the original note to prove that it was authorized to
conduct a foreclosure; and (3) Wells Fargo sold Plaintiff’s loan without notifying him in
writing. 48 None of these arguments are viable. The Utah Court of Appeals and this court have
rejected the notion that the sale or transfer of a note to investors has any effect on the
beneficiary’s security interest. 49 Additionally, “Utah law on nonjudicial foreclosure contains no
46
Complaint ¶ 60.
47
Id. ¶ 65.
48
Id. ¶¶ 71-73.
49
Commonwealth Prop. Advocates, LLC v. Mortg. Elec. Registration Sys., 263 P.3d 397, 401-04 (Utah Ct. App.
2011), cert. denied, ___ P.3d ___(Utah Dec. 14, 2011); Nielsen v. Aegis Wholesale Corp., No. 2:10CV606 DS, 2011
U.S. Dist. LEXIS 48029, at *5-7 (D. Utah. May 4, 2011). See also Commonwealth Property Advocates, LLC v.
12
requirement that the beneficiary produce the actual note . . . .” 50 Finally, Needham has not
offered any authority that requires that a borrower must be notified in writing that his loan is
being transferred.
Needham argues that “Utah allows for recovery under a wrongful foreclosure claim,
where the injured party ‘seeks to have a trustee sale set aside for irregularity, want of notice, or
fraud.’” 51 However, Needham does not allege any facts to support those assertions, but
conclusorily argues “non-compliance with Utah’s statutory non-judicial foreclosure scheme.” 52
If Needham is alleging that Wells Fargo’s 2009 foreclosure was wrongful, he is pursuing a
wrong without a remedy because the April 29, 2010 Permanent Loan Modification renewed the
relationship of these parties after that foreclosure.
b. Quiet Title and Declaratory Relief
Needham’s ninth cause of action seeks to quiet title in himself and “a judicial declaration
that the title to the Subject Property is vested in Plaintiff alone . . . .” 53 He “seeks to quiet title as
of November 17, 2010, the date of the foreclosure sale and/or Trustee's Deed issued to 2020
Properties.” 54 Wells Fargo’s interest, like Needham’s interest, was foreclosed by the November
2010 sale. Needham states no claim against Wells Fargo in this cause of action.
Mortg. Elec. Registration Sys., ___ F.3d ___, 2011 WL 6739431, at*6-7 (10th Cir. Dec. 23, 2011) (discussing Utah
law and concluding that the plaintiff’s claims, similar to those asserted in this case, have no legal basis under Utah
law).
50
McGinnis v. GMAC Mortg. Corp., No. 2:10-cv-00301-TC, 2010 U.S. Dist. LEXIS 90286, at *7 (D. Utah Aug. 27,
2010) (unpublished).
51
Opposing Memorandum at 13-14 (quoting Concepts, Inc. v. First Sec. Realty Servs., Inc. 743 P.2d 1158, 1159
(Utah 1987)).
52
Id. at 14.
53
Complaint ¶ 110.
54
Id.
13
c. Claim to Excess Proceeds of Sunbelt Foreclosure Sale
In his Opposing Memorandum, Needham inexplicably requests that Wells Fargo
pay over excess proceeds from the November 2010 Sunbelt foreclosure sale. 55 This
claim is not raised in the complaint. Wells Fargo received payment of these proceeds as
a result of a state court proceeding between these parties. 56 This court will not revisit that
result.
Fair Housing Act Claim
Needham alleges that Wells Fargo violated the Fair Housing Act under 42
U.S.C. § 3604(f) by refusing to “make reasonable accommodations in rules, policies, practices,
or services,” under section 3604(f)(3)(B), when such accommodations may have helped to afford
Mr. Needham “equal opportunity to use and enjoy a dwelling.” 57 However, Section 3604(f)(1)
prohibits “discrimina[tion] in the sale or rental of, or to otherwise make unavailable or deny, a
dwelling to any buyer or renter because of a handicap.” Needham was not denied the ability to
buy or rent a home. Therefore, he states no Fair Housing Act Claim. Needham’s motion papers
made no argument in support of this claim.
55
Opposing Memorandum at 12-13.
56
Case Docket for In Re Proceeds of Sale of 2387 Coletero Circle, Case No. 110500174, State of Utah Fifth District
Court, attached as Exhibit E to Opposition Memorandum.
57
Complaint ¶ 150.
14
ORDER
IT IS HEREBY ORDERED that Wells Fargo Bank, N.A.’s Motion for Judgment on the
Pleadings 58 is GRANTED. All claims against Wells Fargo Bank N.A. are dismissed with
prejudice.
Dated February 21, 2012.
BY THE COURT:
____________________________
David Nuffer
U.S. Magistrate Judge
58
Docket no. 41, filed August 10, 2011.
15
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?