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Bradley v. Wells Fargo Bank N.A.

United States District Court, First Circuit

December 18, 2013

Jeffrey Bradley
v.
Wells Fargo Bank, N.A. et al. Opinion No. 2013 DNH 173

Ruth A. Hall, Esq. Terrie L. Harman, Esq. Christopher J. Fischer, Esq. William Philpot, Jr., Esq. John S. McNicholas, Esq.

MEMORANDUM AND ORDER

Paul Barbadoro United States District Judge

Jeffrey Bradley lost his home to foreclosure. He has sued his mortgage lender, two assignees of his mortgage, and two entities involved in servicing his loan. He challenges the legality of the foreclosure on several grounds and seeks damages from all of the defendants.

Bradley asserts his claims in both an amended complaint and a proposed second amended complaint that he filed with a motion to join additional defendants. Two defendants named in the amended complaint have filed answers, and the rest have filed motions to dismiss. All defendants oppose the motion for joinder. For the reasons set forth in this Memorandum and Order, I grant the motions to dismiss and deny the motion for joinder.

I. BACKGROUND

A. Factual Background[1]

Bradley obtained a $143, 500 mortgage loan from Ameriquest Mortgage Company in November 2004. Shortly thereafter, Ameriquest assigned the mortgage to Wells Fargo Bank, N.A. as trustee for an unnamed trust (“Wells Fargo Trustee”).[2] Although the first payment on the note was not due until January 1, 2005, Bradley made payments on the loan in November and December 2004, as well as the first required payment in January 2005. Defendants, however, failed to give Bradley credit for any of his payments.

Without Bradley’s knowledge, HomEq Servicing was assigned responsibility for servicing Bradley’s loan. On March 1, 2005, HomEq sent Bradley a notice stating that his loan was three months overdue. Although Bradley’s loan called for the lender to make homeowner’s insurance payments on his behalf from an escrow account, HomEq failed to make the required payments. In August 2005, Bradley received a notice from his insurer stating that his homeowner’s insurance was about to be cancelled. Following instructions Bradley received from HomEq, Bradley paid his insurer and deducted the payment from his September mortgage payment. HomEq, however, refused to credit Bradley for his September mortgage payment. It also failed to give him a credit for his October payment and a double payment he attempted to make in November.

One or more defendants instituted foreclosure proceedings against Bradley in March 2006.[3] In response, Bradley brought suit in state court to enjoin the foreclosure. A state court judge dismissed the foreclosure proceedings in an order dated January 31, 2007 “due to the cancellation of the foreclosure and the attempt of the plaintiffs to refinance their loan.” After the foreclosure case was dismissed, a representative of the defendants assured Bradley that an agreement could be reached to resolve their dispute.[4] Bradley, however, was unable to contact the defendants to negotiate a settlement agreement. In 2009, Bradley spoke with a representative of HomEq and was informed that his loan “was lost in the computer database.” Between 2007 and 2010, defendants also sent multiple notices concerning the loan to the wrong address. On at least one occasion, Bradley was unable to obtain a payoff number from Wells Fargo or any of the other defendants. As a result, he lost an opportunity to refinance his loan.

On September 1, 2010, Wells Fargo Trustee assigned Bradley’s mortgage to Wells Fargo Bank, N.A. as Trustee for a trust created pursuant to a Pooling and Servicing Agreement dated October 1, 2004 (“Wells Fargo PSA Trustee”).[5] At around the same time, Ocwen Loan Servicing, LLC assumed responsibility for servicing Bradley’s loan.

A few months later, on February 8, 2011, Wells Fargo PSA Trustee scheduled a foreclosure sale for March 9, 2011. It later postponed the foreclosure sale: first until April 6, 2011, and ultimately until April 27, 2011. A law office acting on behalf of Wells Fargo PSA Trustee sent Bradley’s former attorney a notice that the original foreclosure sale had been postponed. It continued to send foreclosure notices to the attorney even after she notified defendants that she no longer represented Bradley. Bradley never received notice of the foreclosure, which was completed as scheduled on April 27, 2011. Wells Fargo PSA Trustee purchased the property at the foreclosure sale.

On or about May 1, 2011, one of the defendants put a padlock on the door of Bradley’s home without a writ of possession and without giving him either notice to quit or a notice of eviction. On May 14, defendants or their agents threw Bradley’s household goods into a dumpster and destroyed many of Bradley’s personal effects, sentimental items, furniture, and other household goods.

B. Procedural Background

On January 27, 2012, Bradley filed a complaint in the Rockingham County Superior Court against Wells Fargo. Doc. No. 3. On March 30, 2012, Wells Fargo removed the case to this court. On March 18, 2013, Bradley filed an amended complaint naming Ameriquest and Ocwen as additional defendants. Bradley also listed Wells Fargo separately as a defendant in its individual capacity, in its capacity as trustee of the unnamed trust and in its capacity as trustee of the trust created by the Pooling and Servicing Agreement. Doc. No. 38. Wells Fargo PSA Trustee and Ocwen answered the amended ...


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