United States District Court, D. Arizona
Bonnie T. Ramos, et al., Plaintiffs,
Wells Fargo Home Mortgage, et al., Defendants.
MURRAY SNOW CHIEF UNITED STATES DISTRICT JUDGE
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.
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).
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
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). 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.
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.
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. 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
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.
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).
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
Wells Fargo's Motion for Summary Judgment
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.
Good Samaritan Claim
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.
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.).
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 ...