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Ramos v. Wells Fargo Home Mortgage

United States District Court, D. Arizona

March 26, 2019

Bonnie T. Ramos, et al., Plaintiffs,
Wells Fargo Home Mortgage, et al., Defendants.



         Pending before the Court are Defendant Wells Fargo Home Mortgage's Motion for Summary Judgment (Doc. 43) and Plaintiff Bonnie Ramos' Cross Motion for Summary Judgment (Doc. 66). For the following reasons Wells Fargo's motion is granted in part and denied in part. For the same reasons, Ramos' motion is denied.[1]


         Since there are two opposing motions for summary judgment here, the Court “evaluate[s] each motion independently, giving the nonmoving party in each instance the benefit of all reasonable inferences.” Lenz v. Universal Music Corp., 815 F.3d 1145, 1150 (9th Cir. 2015) (citation and internal quotation marks omitted).

         In November 1969, Bonnie Ramos purchased a home in Phoenix. (Doc. 9 at 3). She financed the purchase with a VA loan she received from Colonial Associates Mortgage. (Id.). She refinanced the loan multiple times-first through Ace Mortgage Co., and then again through WMC Mortgage. (Id.). In 2008, Ramos was having difficulty making payments on the loan, so she signed a forbearance agreement with Wells Fargo Bank, the then-current servicer of the loan. (Doc. 9 at 3). That agreement set forth a new payment schedule.

         When Ramos failed to make payments under that agreement, Wells Fargo instituted foreclosure proceedings. Several parts of the rest of the story are contested by the parties. A trustee sale was held, and U.S. Bank purchased the property. (Doc. 67-6 at 1). Apparently then changing its mind, Wells Fargo offered Ramos a loan modification (the “first modification”) and filed, or misfiled, an affidavit of rescission of the trustee's sale with the Maricopa County Recorder's Office. (Doc. 44-4 at 2-3).[2] The modification lowered the interest rate on the loan but raised the monthly payment because arrearages were capitalized to bring the loan current. According to Ramos, the reason she signed the first modification, increasing her monthly payment when she already could not afford her current monthly payment, was because Wells Fargo told her that she could immediately get a second modification that would then lower her monthly payment.

         Ramos contends that the first modification was a “HAMP” modification under the federal Home Affordable Modification Program, or that Wells Fargo told her it was. Wells Fargo denies this and argues that it was simply an in-house modification. Ramos also contends that she filed a second HAMP application almost immediately; Wells Fargo claims that Ramos did not file the HAMP application until 2014. In any event, Ramos did not immediately receive a second modification on the loan (either in-house or HAMP), and made payments on the first modification for several years. Regardless of when the HAMP application was submitted, in October 2014 Wells Fargo advised Ramos that, based on the financial information she had submitted, she did not qualify for a HAMP modification. In response, Ramos submitted another HAMP application with additional information. As part of this application, Ramos stated that she had never received a HAMP modification on any other loan or property. Apparently relying on that certification, Wells Fargo offered Ramos a HAMP Trial Period Plan in March 2015. Ramos made payments under that plan.

         A Department of the Treasury audit of Ramos' HAMP application subsequently informed Wells Fargo that Ramos had in fact already received a HAMP modification on a different loan or loans.[3] Wells Fargo therefore denied Ramos' HAMP application and cancelled the Trial Period HAMP assistance she was then receiving. Ramos again became unable to make payments. Wells Fargo again instituted foreclosure proceedings and recorded a Notice of Trustee's Sale in September 2016.

         Ramos filed this action in Maricopa County Superior Court. Wells Fargo removed the action to this Court in January 2017. (Doc. 1). This Court granted Wells Fargo's Motion to Dismiss in part. (Doc. 24). Wells Fargo now moves for summary judgment on Ramos' remaining claims. (Doc. 43). Ramos filed a cross motion for summary judgment on those same claims. (Doc. 66).


         I. Legal Standards

         A principal purpose of summary judgment is to identify factually unsupported claims and dispose of them. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, shows “that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Only disputes over facts that might affect the outcome of the suit will preclude the entry of summary judgment, and the disputed evidence must be “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         “[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. Parties opposing summary judgment are then required to “cit[e] to particular parts of materials in the record” that either establish a genuine dispute or “show[] that the materials cited do not establish the absence . . . of a genuine dispute.” Fed. R. Civ. Pro. 56(c)(1). If the non-moving party's opposition fails to do so, the court is not required to comb through the record on its own to come up with reasons to deny a motion for summary judgment. Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) (citing Forsberg v. Pacific N.W. Bell Tel. Co., 840 F.2d 1409, 1418 (9th Cir. 1988)).

         II. Analysis

         A. Wells Fargo's Motion for Summary Judgment

         Wells Fargo moves for summary judgment on all of Ramos' claims. Ramos bases her claims on multiple theories. There are genuine disputes of material facts regarding at least one theory for Ramos' Good Samaritan claim.

         1. Good Samaritan Claim

         Arizona recognizes the “Good Samaritan Doctrine, ” under which a party may be liable for the negligent performance of an undertaking. Steinberger v. McVey ex rel. County of Maricopa, 234 Ariz. 125, 137-38, 318 P.3d 419, 430-31 (Ariz.Ct.App. 2014). A party may be liable by either “(1) increasing the risk of harm to another, or (2) causing another to suffer harm because he or she relied on the party exercising reasonable care in undertaking the duty.” Id. at 137. Ramos sufficiently alleged an “increased-risk-of-economic-harm” claim, and to establish the claim she must show that (1) Wells Fargo undertook to render services to Ramos “that [it] should have recognized were necessary for the protection of [her] property”; (2) the risk of harm to Ramos increased because Wells Fargo failed to exercise reasonable care while rendering those services; and (3) Ramos was harmed because of Wells Fargo's actions. Id.

         Ramos alleges several theories to support her Good Samaritan Doctrine claim: (1) Wells Fargo foreclosed during the HAMP modification process; (2) Wells Fargo failed to offer Ramos a new loan after the 2009 foreclosure allegedly extinguished her existing loan, but instead offered her a new modification and accepted payments under it; (3) Wells Fargo allegedly misfiled the Affidavit of Cancellation of Trustee's Deed by “not recording it against [Ramos's] deed;” and (4) Wells Fargo, knowing that it could not get Ramos a HAMP modification, led her to believe that it could. (Doc. 66 at 13). Ramos alleges that these actions harmed her by (1) requiring her to make payments totaling more than $160, 000 on a loan that no longer existed; (2) keeping her credit rating “captive and unnecessarily low”; and (3) causing Ramos to lose an opportunity to refinance her property with a VA loan in 2017. (Id.).

         The parties do not generally dispute that Wells Fargo undertook to render services to Ramos or that Wells Fargo should have recognized that those services were necessary to protect Ramos' property. The nub of the dispute centers on whether Wells Fargo failed to exercise reasonable ...

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