IN THE UNITED STATES DISTRICT COURT GERMANO · PDF fileIN THE UNITED STATES DISTRICT COURT ......

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

WILFREDO and ODALID BOSQUE and GERMANO DEPINA, on behalf of themselves and all others similarly situated

Plaintiffs,

v. C.A. NO. 10-10311

WELLS FARGO BANK, N.A. d/b/a WELLS FARGO HOME MORTGAGE d/b/a AMERICA S SERVICING COMPANY,

Defendant.

MEMORANDUM OF WELLS FARGO BANK, N.A. IN SUPPORT OF MOTION TO DISMISS THE COMPLAINT

Irene C. Freidel BBO No. 559051 David D. Christensen BBO No. 666401 Kristin A. Davis BBO No. 673491 K&L GATES LLP State Street Financial Center One Lincoln Street Boston, MA 02111

Counsel for Wells Fargo Bank, N.A. June 2, 2010

Case 4:10-cv-10311-FDS Document 6 Filed 06/02/10 Page 1 of 28

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TABLE OF CONTENTS

Page

I. INTRODUCTION AND SUMMARY OF ARGUMENT.................................................. 1

II. BACKGROUND................................................................................................................. 2

A. Summary of the Complaint. .................................................................................... 2

1. The Bosque loan.......................................................................................... 2

2. The DePina loan.......................................................................................... 3

B. The U.S. Treasury s Home Affordable Modification Program .............................. 6

III. ARGUMENT ...................................................................................................................... 9

A. HAMP Does Not Provide Plaintiffs With A Private Right Of Action To Enforce Its Requirements; Plaintiffs Cannot Enforce HAMP Under The Guise Of Massachuesetts Common Law. ............................................................... 9

B. Plaintiffs Have Failed To State A Claim For Breach Of Contract........................ 13

(a) The TPP is not an enforceable offer .......................................... 13

(b) Plaintiffs have not alleged facts showing consideration. ........... 16

(c) The TPP does not contain definite and essential terms.......... 17

(d) Plaintiffs have not alleged an entitlement to damages. ................. 19

C. Plaintiffs Have Failed To State A Claim For Breach Of The Implied Covenant Of Good Faith And Fair Dealing. ......................................................... 21

1. Plaintiffs have failed to allege facts to support a breach of the implied covenant claim against Wells Fargo.......................................................... 21

2. Plaintiffs have not alleged an entitlement to damages for breach of the implied covenant ....................................................................................... 23

D. Plaintiffs Have Failed To State A Claim For Promissory Estoppel. ..................... 24

IV. CONCLUSION ................................................................................................................. 25


BOS-1404519 v24

Defendant Wells Fargo Bank, N.A. ( Wells Fargo ), by and through undersigned counsel

and pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, respectfully submits this

memorandum in support of its Motion to Dismiss the Complaint filed by plaintiffs Wilfredo and

Odalid Bosque (the Bosques ) and Germano DePina ( Depina ) (collectively, plaintiffs ).

I. INTRODUCTION AND SUMMARY OF ARGUMENT

This case is about whether Wells Fargo

as plaintiffs mortgage loan servicer

violated guidelines issued by the U.S. Treasury in connection with the government s Home

Affordable Modification Program ( HAMP ) program by not providing plaintiffs with

permanent mortgage loan modifications immediately upon the completion of three payments by

plaintiffs under their trial modification plans. Because HAMP provides plaintiffs with no private

right of action, plaintiffs bring their claims under the guise of Massachusetts common law.

In Count I of the Complaint, plaintiffs claim that Wells Fargo breached an alleged

contract with them to permanently modify their mortgage loans under HAMP. In Count II,

plaintiffs claim that Wells Fargo breached the implied covenant of good faith and fair dealing

because it allegedly engaged in conduct designed to discourage borrowers from successfully

completing the loan modification requirements and to minimize the number of permanent loan

modifications extended. In Count III, plaintiffs bring a promissory estoppel claim alleging that

Wells Fargo misrepresented that it would offer a permanent modification to them if they

executed a HAMP trial modification or trial period plan ( TPP or trial plan ), supplied

supporting documentation, and made their payments.

The Complaint should be dismissed. It is nothing more than an attempted end-run around

the enforcement mechanisms set forth in HAMP, which do not permit private enforcement

actions by private litigations against loan servicers who are voluntary participants in the

HAMP program. Moreover, plaintiffs have no legally enforceable property interest or


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mandatory entitlement to a permanent loan modification. Even if plaintiffs had a right of action

under HAMP, as a matter of law, they have failed to plead and they cannot establish each

element of their breach of contract and related claims. As discussed more fully below, plaintiffs

have not adequately alleged that their trial modifications were contracts to enter into permanent

modifications; the trial modifications did not contain any of the terms or details of a permanent

modification, the trial modifications were not, and were never intended to be, guarantees that the

borrowers would receive permanent modifications if not otherwise eligible for such

modifications under HAMP guidelines, and, in light of their pre-existing indebtedness under

their loan notes, plaintiffs reduced monthly payments under their trial modifications could not

have constituted consideration necessary to form an enforceable contract. Because plaintiffs

claims fail to satisfy the plausibility test set forth in Twombly and Iqbal, the Complaint should be

dismissed.1

II. BACKGROUND

A. Summary of the Complaint.

1. The Bosque loan

Odalid and Wilfredo Bosque obtained a first lien residential mortgage loan in the amount

of $324,000 from Accredited Home Lenders, Inc. ( Accredited ) on January 9, 2006. A true and

correct copy of the Bosques mortgage loan is attached as Exhibit A to the Declaration of Irene

C. Freidel ( Freidel Decl. ).2 The adjustable rate loan was secured by the Bosques residence at

1 Moreover, plaintiffs claims are moot. Wells Fargo provided plaintiffs with permanent modifications on April 1, 2010, with an effective date of May 1, 2010. Despite their claims in this case, however, neither the Bosques nor Mr. DePina accepted the modifications provided to them. However, on June 1, 2010, Mr. DePina executed and thereby accepted the permanent modification. To the extent that this case is premised on Wells Fargo s failure to provide named plaintiffs with permanent modifications, Wells Fargo has done so, and the case has no basis to proceed.

2 Documents that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to her claim. Beddall v. State St. Bank & Trust Co., 137 F.3d


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3 Elizabeth Circle, Leominster, MA. The Bosques defaulted on their loan more than two years

ago. Compl. ¶ 44.

On August 28, 2009, Wells Fargo notified the Bosques that they were eligible for the

Home Affordable Modification Program ( HAMP ). Compl. ¶ 48. On October 1, 2009, the

Bosques Trial Period Plan ( TPP ) became effective through HAMP. Ex. 8 to Compl. To meet

HAMP requirements, the TPP included principal forbearance and was based on a fixed interest

rate of 2% for the first five years graduating to a fixed interest rate of 5% beginning in year 8.

Ex. 8 to Compl. As part of the TPP, the Bosques certified that:

The TPP required that the Bosques make three payments of $1,428.57 beginning on

October 1, 2009. Ex. 8 to Compl. At no point did Wells Fargo determine or notify the Bosques

that they were ineligible for a permanent modification under HAMP or otherwise. Compl. ¶ 50.

Wells Fargo provided the Bosques with a revised, permanent HAMP modification, with an

effective date of May 1, 2010, on April 1, 2010. Freidel Decl. ¶ 3. However, the Bosques have

not accepted the permanent modification. Id.

2. The DePina loan

12, 17 (1st Cir. 1998) (quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993); Christensen v. Kingston Sch. Comm., 360 F. Supp. 2d 212, 215 (D. Mass. 2005) (allowing undisputedly authentic document to be attached as an exhibit to a motion to dismiss because plaintiff s claims were based on that document). Plaintiffs mortgages are submitted for the Court s consideration because they are referenced in the Complaint and are central to plaintiffs claims that Wells Fargo was required to permanently modify the terms of their loans. Further, plaintiffs mortgages are self-authenticating pursuant to Fed. R. Evid. 902(9). See also In re DiMare, No. 08-1046, 2008 WL 5206628, *7 (Bankr. D. Mass. Dec. 22, 2009) (finding documents provided to consumers in mortgage lending transaction satisfy the requirements of Rule 902(9) as self-authenticating and related to commercial paper); 31 Wright & Gold, Federal Practice and Procedure:Evidence, § 7143 (2000). In addition, plaintiffs mortgages are available on-line through their counties registry of deeds websites. See Worcester Northern District Registry of Deeds web-site for the Bosques mortgage (http://www.sec.state.ma.us/rod/rodnw/nwidx.htm) and Suffolk County Registry of Deeds web-site (http://www.masslandrecords.com/malr/controller) for the DePina mortgage.


http://www.sec.state.ma.us/rod/rodnw/nwidx.htm

http://www.masslandrecords.com/malr/controller

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On April 20, 2006, Germano DePina obtained a first-lien residential mortgage loan from

Equifirst Corporation ( Equifirst ). A true and correct copy of the DePina mortgage loan is

attached as Exhibit B to the Freidel Decl. The adjustable rate loan was in the amount of

$336,000. The DePina loan thereafter went into default.

Wells Fargo determined that Mr. DePina was eligible for HAMP, and sent Mr. DePina a

TPP from Wells Fargo on August 11, 2009. Ex. 11 to Compl. However, the original TPP was

thereafter modified based on additional financial information provided by Mr. DePina. On

October 9, 2009, Wells Fargo sent Mr. DePina a second TPP, which Mr. DePina executed and

returned to Wells Fargo. Ex. 12 to Compl. The TPP required Mr. DePina to make three

payments, beginning on October 1, 2009, in the amount of $1,384.11. Id.

On January 20, 2010, Wells Fargo sent Mr. DePina a letter notifying him that he was still

under the TPP, and that Wells Fargo required additional information by February 19, 2010 to

complete the permanent modification:

Ex. 14 to Compl. The Form 4506T that Mr. DePina had submitted to Wells Fargo was

incomplete and rejected by the IRS; information in boxes 1A through 3 was missing. Ex. 14 to

Compl. At no point did Wells Fargo determine or notify Mr. DePina that he was ineligible for a

permanent modification under the HAMP program. Compl. ¶ 71.

Wells Fargo provided Mr. DePina with a permanent HAMP modification agreement for

the DePina loan on April 1, with an effective date of May 1, 2010. Freidel Decl. ¶ 5. On May


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28, 2010, Mr. DePina indicated, through his counsel, that he intended to accept the modification.

Id.3

B. The Complaint

On February 23, 2010, plaintiffs filed this putative class action lawsuit. They seek

certification pursuant to Fed. R. Civ. P. 23(b)(2) and 23(b)(3) of a class of Massachusetts

homeowners whose loans have been serviced by Defendant and who, since April 13, 2009, have

complied with all of their obligations under a written TPP, but have not received a permanent

modification HAMP. Compl. ¶ 78.

For relief, plaintiffs seek: (1) class certification and appointment as class representatives

and their counsel as class counsel; (2) a declaration that the acts and practices of Defendant

complained of herein [] constitute a breach of contract and a breach of the covenant of good faith

and fair dealing, as well a declaration that they are required by the doctrine of promissory

estoppel to offer permanent modification to class members; (3) a permanent injunction

enjoining Wells Fargo from continuing to harm Plaintiffs and the putative class; (4) an order

requiring Wells Fargo to adopt and enforce a policy that requires appropriate training of [its]

employees and agents regarding [its] duties under HAMP; (5) specific performance of

Defendant s contractual obligations together with other relief required by contract and law; and

(5) an award of actual and punitive damages, and the costs of the action, including attorneys fees.

Id. at ¶ 20 (prayer for relief).

3 Mr. DePina has filed a separate lawsuit in connection with the servicing of the same loan that is the subject of the Bosque lawsuit. See Manson v. GMAC Mortgage, LLC, Case 1:08-cv-12166-RGS (D. Mass.) In that case, Mr. DePina seeks injunctive relief to stop further foreclosure activities on his loan, as well as unspecified damages.


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B. The U.S. Treasury s Home Affordable Modification Program

In an effort to help millions of families restructure or refinance their mortgages to avoid

foreclosure, the U.S. Treasury announced a national modification program intended to help 3 to

4 million at-risk homeowners avoid defaulting on their mortgage loans by reducing monthly

payment amounts to sustainable levels. U.S. Treasury s HAMP Supplemental Directive 09-01

( SD 09-01 ) at 1, Ex. 2 to Compl. On March 4, 2009, the Obama Administration published

detailed program guidelines for HAMP. Id. HAMP creates a defined loan modification process

through which borrowers who are in default, at risk of imminent default, or in foreclosure can

have their loans modified to a more affordable monthly payment that is intended to be not more

than 31% of their gross monthly income. See https://www.efanniemae.com/sf/mha/mhamod/.

As of April 30, 2010, in addition to completing 36,094 permanent HAMP modifications,

Wells Fargo had 75,322 active trial modifications under HAMP and continues modifications

under its own programs. See http://www.dsnews.com/articles/wells-fargo-reports-36094-

permanent-hamp-modifications-2010-05-18. From the beginning of 2009 through April 2010,

Wells Fargo s completed modifications totaled more than 390,000, bringing its total HAMP and

non-HAMP active trial and completed modifications to 505,059. See id. Notably, in February

2010, Wells Fargo moved more borrowers into permanent HAMP modifications than any other

servicer participating in the HAMP program. See

http://www.housingwire.com/2010/03/12/wells-fargo-leads-hamp-servicers-in-february/.

All servicers of loans that are owned or guaranteed by Fannie Mae or Freddie Mac ( GSE

loans ) must participate in the HAMP program as to those loans. Participation in HAMP is

voluntary for servicers as to non-GSE loans, that is, loans

like plaintiffs that are not held by

government-sponsored entities such as Fannie Mae and Freddie Mac, are held by servicers in

their own portfolios, or are serviced by servicers for other portfolios, securitization trusts, or


https://www.efanniemae.com/sf/mha/mhamod/

http://www.dsnews.com/articles/wells-fargo-reports-36094-

permanent-hamp-modifications-2010-05-18

http://www.housingwire.com/2010/03/12/wells-fargo-leads-hamp-servicers-in-february/

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investors. A servicer that chooses to voluntarily participate in HAMP must execute a Servicer

Participation Agreement ( SPA ) with Fannie Mae in its capacity as Financial Agent for the

United States. Wells Fargo executed an SPA on April 13, 2009 and an Amended SPA on March

16, 2010.4

Not all mortgage loans are eligible for HAMP, and a participating servicer is not required

to modify every HAMP-eligible loan. If borrower eligibility is satisfied, the servicer is obligated

to consider the borrower for a HAMP modification. However, the servicer retains certain

discretion when determining eligibility for a permanent modification. See, e.g., SD 09-01 at 5,

17. Contrary to the underlying premise of this case (see, e.g., Compl. ¶¶ 40, 78 (class

definition)), a borrower is not guaranteed a permanent loan modification simply by obtaining a

trial plan, making three payments, and providing all requested documentation to the loan

servicer. The servicer must still evaluate the borrower s documentation to determine eligibility.

Accordingly, using the borrower s income information, a participating servicer will

follow a series of steps (known as the waterfall ) in an effort to obtain an affordable monthly

payment for the borrower. The waterfall is designed to achieve a monthly mortgage payment

that is not more than 31% of a borrower s total pre-tax monthly income. Id. at 8-10. First, the

servicer will reduce the interest rate to as low as 2%. Next, if necessary, the servicer will extend

the loan term to 40 years. Id. Finally, if necessary, the servicer will forebear repayment of a

portion of the principal until the loan is paid off and will waive interest on the deferred amount.

Id.

4 Wells Fargo s SPA and Amended SPA are available publicly at the following government web-site: http://www.financialstability.gov/docs/HAMP/Wells%20Fargo%20Bank%20. The Amended SPA is also attached as Ex. 1 to the Compl.


http://www.financialstability.gov/docs/HAMP/Wells%20Fargo%20Bank%20

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If application of the waterfall does not produce an affordable payment, the loan does not

qualify for a permanent HAMP modification. If application of the waterfall does produce an

affordable payment, the servicer also subjects the loan to a Net Present Value ( NPV ) test. If

the NPV test produces a negative result (losses from foreclosure are less than losses from

modification), the servicer is not obligated to modify the loan. The servicer retains discretion as

to the manner in which the NPV test is calculated. See SD 09-01 at 5; see also Williams v.

Geithner, Civil No. 09-1959 ADM/JJG, 2009 WL 3757380, *6 (D. Minn. Nov. 9, 2009).

Under original HAMP guidelines, the modification of a loan was a two-step process. SD

09-01 at 14-15; Compl. ¶ 38. To provide immediate payment relief for borrowers, a participating

servicer could place a borrower on a three-month trial period plan before the servicer had

obtained the information from the borrower necessary to make a final determination as to

whether the borrower was eligible for a permanent modification. SD 09-01 at 5, 17 ( [s]ervicers

are not required to verify financial information prior to the effective date of the trial period ).

The servicer would thereafter permanently modify the borrower s loan if required conditions are

met. See SD 09-01 at 17-18. The two-step process has led to certain borrowers being placed

trial plans but not transferring into a permanent modification for various reasons including, but

not limited to, because they did not qualify for a permanent modification based on the

documentation provided to the servicer. Some borrowers, like plaintiffs here, simply did not

obtain a permanent modification as quickly as the HAMP program originally anticipated and

were required to stay on the trial plan for more than three months. All of these borrowers, whose

reasons for not obtaining a permanent modification vary, underpin this lawsuit and other

litigation filed against servicers in courts around the country.


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To respond to the circumstances of borrowers who were placed on trial modifications but

not moved to permanent modifications, for varying reasons, the U.S. Treasury, on January 28,

2010, issued Supplemental Directive 10-01 ( SD 10-01 ), effective June 1, 2010. SD 10-01

(attached as Ex. C to Freidel Decl.) provides a significant program change by requiring that

servicers verify borrower eligibility for a permanent modification prior to offering a HAMP loan

modification.

III. ARGUMENT5

A. HAMP Does Not Provide Plaintiffs With A Private Right Of Action To Enforce Its Requirements; Plaintiffs Cannot Enforce HAMP Under The Guise Of Massachusetts Common Law.

While ostensibly pled as unadorned common law claims, the counts of the Complaint are

all premised on (1) Wells Fargo s allegedly unlawful delay in providing plaintiffs with

permanent HAMP modifications upon completion of three payments under their trial plans, and

(2) the claim that all borrowers placed on a trial plan who provide requested documentation and

make three payments are guaranteed a permanent modification regardless of eligibility. HAMP,

however, provides borrowers with no private right of action to enforce its requirements, which

servicers participate in voluntarily and that are already enforced by the U.S. Treasury (through its

agents). Moreover, contrary to the premise of this lawsuit, not all borrowers are eligible for a

5 While it is axiomatic that the Court accepts as true all well-pled facts alleged in the complaint, plaintiff must offer more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Damon v. Moore, 520 F.3d 98, 103 (1st Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). When reviewing a motion to dismiss, the Court must ask whether the plaintiff has provided allegations that

raise a right to relief above the speculative level and state a claim to relief that is plausible on its face. Curran v. FedEx Ground Package Sys., Inc., 593 F. Supp. 2d 341, 344 (D. Mass. 2009) (quoting Twombly, 550 U.S. at 555 and 570). As the Supreme Court recently stated in Ashcroft v. Iqbal, Rule 8 does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions . [O]nly a complaint that states a plausible claim for relief survives a motion to dismiss. [Twombly at 556]. Determining whether a complaint states a plausible claim for relief will be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense . But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not show[n]-that the pleader is entitled to relief. Fed. Rule Civ. Proc. 8(a)(2). 129 S. Ct. 1937, 1950 (2009) (internal citations and quotations omitted).


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permanent HAMP modification, and HAMP does not require or mandate that every borrower

whose loan is modified on a trial basis receive a permanent modification.

While HAMP was designed to help homeowners stay in their homes, it also recognizes

that not every borrower can be helped. As one district court has already held, neither the

Emergency Economic Stabilization Act, 12 U.S.C. § 5201 (2008) ( EESA ), which created

HAMP, nor HAMP s guidelines intended to create a property interest in loan modifications for

mortgages in default. Williams, 2009 WL 3757380, at *6. The statute does not contain

language mandating loan modifications, but instead states that loans may be modified where

appropriate

a phrase that evinces a Congressional intent to afford discretion in the decision

whether to modify loans in certain circumstances. Id.

In this case, plaintiffs claims flow from Wells Fargo s perceived failure to meet its

obligations under HAMP including under its SPA which incorporates HAMP guidelines by

not providing plaintiffs with a permanent loan modification immediately after they made three or

more payments under their trial modifications. Plaintiffs, however, do not have standing to

enforce Wells Fargo s obligations under HAMP (or the SPA), and thus courts have held that

borrowers, like plaintiffs, are not intended third-party beneficiaries of the SPA. See Escobedo v.

Countrywide Home Loans, Inc., No. 09cv1557 BTM(BLM), 2009 WL 4981618, *3 (S.D. Cal.

Dec. 15, 2009) ( [q]ualified borrowers are incidental beneficiaries of the Agreement and do not

have enforceable rights under the contract ); Villa v. Wells Fargo Bank, N.A., No. 10CV81 DMS

(WVG), 2010 WL 935680, *3 (S.D. Cal. March 15, 2010) (same).

Moreover, it is now well-established that neither HAMP nor the SPA provides plaintiffs

with the right to privately enforce its terms to obtain a permanent HAMP modification whether

directly or under the guise of state law. Indeed, nowhere does the SPA or HAMP contemplate


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private party enforcement actions under either HAMP or state law. The only limited private

right of action created under EESA, is through the Administrative Procedures Act. See 12

U.S.C. § 5229. But that provision only provides for challenges to actions taken by the Secretary

of the Treasury. The statute does not create a private right of action against servicers

participating in the HAMP program. See Gaitan v. Mortgage Elec. Registration Sys., No. EDCV

09-1009 VAP (MANx), 2009 WL 3244729, *7 (C.D. Cal. Oct. 5, 2009) (HAMP does not

provide a private cause of action).

For this reason, numerous courts have already held that there is no private right of action

under HAMP for claims by borrowers against participating servicers, and state laws cannot be

used to create private rights of action where none exist under federal law. See Aleem v. Bank of

Am., N.A., No. EDCV 09-01812-VAP (RZx), 2010 WL 532330, *3-4 (C.D. Cal. Feb. 9, 2010)

( [t]he UCL cannot create a private right of action where none exists under the federal statute );

Pantoja v. Countrywide Home Loans, Inc., 640 F. Supp. 2d 1177, 1187 (N.D. Cal. 2009); Ung v.

GMAC Mortgage, No. EDCV 09-893-VAP (OPx), 2009 WL 2902434, *9-11 (C.D. Cal. Sept. 4,

2009) (dismissing TARP-based claims pled as the basis for state law claims); Gonzales v. First

Franklin Loan Servs., No. 1:09-CV-00941 AWI-GSA, 2010 WL 144862, *18 (E.D. Cal. Jan. 11,

2010) (no private right of action under TARP or EESA).

Moreover, that HAMP does not provide for a private right of action is consistent with

HAMP s enforcement mechanisms. Enforcement of HAMP requirements is performed by

Freddie Mac, which the U.S. Treasury designated as its compliance agent under HAMP. SD 09-

01 at 25. To ensure that loan servicers comply with HAMP requirements, the SPA provides

Freddie Mac with extensive oversight and remedial powers. Freddie Mac, in turn, conducts both

on-site and remote assessments to determine a servicer s compliance with various HAMP


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requirements from reviewing borrower eligibility to execution of the NPV/waterfall processes.

See id. HAMP expressly requires that for each loan the servicer must report loan level data

including reasons why loans evaluated for modifications were not modified. HAMP

Supplemental Directive 09-06 ( SD 09-06 ), Ex. D to the Freidel Decl. Further, pursuant to SD

09-06, any loan that does not result in a permanent HAMP modification after completion of a

trial period triggers additional reporting requirements by the servicer. Id. at 4.

Further, the SPA also states that disputes between the parties, here Wells Fargo and the

U.S. Treasury, regarding HAMP requirements will be resolved in accordance with federal law

and through alternative dispute mechanisms. The SPA states that the parties agree to take all

reasonable steps to resolve disputes internally before commencing legal proceedings. See Ex. 1

to Compl. at 9. Consistent with this theme, SD 09-01 also provides for an issue/resolution

appeal process for servicer assessments. SD 09-01 at 26.6

Finally, a servicer s voluntary participation in HAMP which is strongly encouraged by

the U.S. Treasury would be severely discouraged if the servicer were exposed to multiple

private causes of action and damages for failing to comply with HAMP requirements. See, e.g.,

Brown v. First Tenn. Nat l Ass n, C.A. No. 1:09-CV-0679-BBM (N.D. Ga. Nov. 20, 2009) (slip

op. at 13-14, 28-29, attached to Freidel Decl. as Ex. E) (finding no private right of action to

enforce VA guidelines where Congress provided administrative remedies to the government to

enforce program requirements and program was intended to encourage lender participation).

For these and other reasons, plaintiffs cannot enforce HAMP, and they may not use state

law as an indirect means to enforce HAMP when the program was not designed to include

6 To assist borrowers in connection with the denial of loan modification requests, the U.S. Government set up the Homeowners Hope Hotline. See http://makinghomeaffordable.gov/.


http://makinghomeaffordable.gov/

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private enforcement or penalties against servicers who are participating in the program

voluntarily.

B. Plaintiffs Have Failed To State A Claim For Breach Of Contract.

Assuming for the sake of argument that plaintiffs could enforce HAMP under the guise of

Massachusetts common law (contrary to the foregoing), plaintiffs breach of contract claim

should nonetheless be dismissed as a matter of law. It is well established in Massachusetts that

the essential elements of a contract are an offer, acceptance, and an exchange of consideration or

meeting of the minds. Vadnais v. NSK Steering Sys. Am., Inc., 675 F.Supp.2d 205, 207 (D.

Mass. 2009). Plaintiffs allegations that Wells Fargo became contractually obligated to

permanently modify their mortgage loans after it provided plaintiffs with a TPP pursuant to

which plaintiffs made three or more payments are not sufficient to establish the existence of a

valid contract. Absent more, Twombly and Iqbal mandate dismissal of plaintiffs claims. See,

e.g., Iqbal, 129 S. Ct. at 1950 (a plaintiff is not entitled to engage in discovery when plausible

claim has not been alleged).

(a) The TPP is not an enforceable offer

Plaintiffs erroneously assert that the TPPs that they executed with Wells Fargo were valid

contracts that required Wells Fargo to immediately provide plaintiffs with permanent

modifications upon completion of their trial plan payments. Compl. ¶¶ 88-98. Plaintiffs allege

that they accepted the offers by making their trial plan payments and providing requested

documentation, which then guaranteed that they would receive permanent modifications. Id. ¶¶

40, 78. The test for an offer is a manifestation of willingness to enter into a bargain, so made

as to justify another person in understanding that his assent to that bargain is invited and will

conclude it. Bourque v. FDIC, 42 F.3d 704, 709 (1st Cir. 1994) (quoting Restatement (Second)

of Contracts § 24 at 71 (1981). A party s suggestion is not an offer if it is reasonably apparent


14

that some further step is necessary to create contractual relations. Id. (concluding that no

contract was formed because reasonable interpretation of agreement was that buyer s acceptance

of seller s offer was subject to further approval); Restatement (Second) of Contracts § 26.

Here, plaintiffs TPPs cannot reasonably be viewed as offers the acceptance of which

could bind Wells Fargo to permanently modify plaintiffs mortgage loans. Contrary to plaintiffs

suggestion, nowhere do applicable HAMP guidelines mandate that any borrower who obtains a

TPP is guaranteed a permanent modification. Indeed, the guidelines implicitly reject that

conclusion and would be eviscerated if plaintiffs claims were true. At the time plaintiffs

received their TPPs, HAMP guidelines expressly permitted a servicer to place a borrower on a

trial plan before the servicer obtained all of the borrower s documentation and was able to

determine eligibility for a permanent modification. SD 09-01 at 5, 17 ( [s]ervicers are not

required to verify financial information prior to the effective date of the trial period ). HAMP

guidelines also contemplate that the servicer would evaluate (or reevaluate) the borrower s NPV

during the trial plan to determine if the NPV is positive (and thus eligible for modification) or

negative (and thus not appropriate for modification). SD 10-01 at 10; see also HAMP FAQs

(April 2, 2010), Q2314 at 27-28, Ex. F to Freidel Decl.

HAMP guidelines further state that if the borrower successfully completed the trial plan

and should have been converted to a permanent modification, the servicer must promptly make

a determination as to whether the borrower is eligible for a permanent HAMP modification

See HAMP FAQs, 2009-2010 Conversion Campaign, Q1222-01 at 3, Ex. G to Freidel Decl.

(emphasis added). The guidelines provide the servicer with a 60-day grace period to provide a

permanent modification if the servicer discovers that an error was made and the borrower should

have been placed in a permanent modification. Id. at 2-3. Clearly, the guidelines do not


15

presume that every trial modification would necessarily result in a permanent loan modification,

nor do they expect that every permanent modification will be provided immediately upon

completion of the trial plan.

The language of the TPP confirms that permanent modification of plaintiffs loans were

was conditioned on the receipt and review by Wells Fargo of additional documentation and the

satisfaction of all necessary conditions to render plaintiffs eligible for a permanent modification.

When signing the TPP, plaintiffs acknowledged: I am providing or already have provided

documentation for all income that I receive . Compl., Exs. 8 and 11 at 1(D). Further, when

signing their TPPs, plaintiffs agreed that: all terms and provisions of the [original] Loan

Documents remain in full force and effect; nothing in this Plan shall be understood or construed

to be a satisfaction or release in whole or in part of the obligations contained in the Loan

Documents. The Lender and I will be bound by, and will comply with, all of the terms and

provisions of the Loan Documents. Id. at 4(D).

Finally, Wells Fargo used TPP documents in the form and substance provided and

required by the Treasury under the HAMP program. See, e.g., SD 09-01. Because the HAMP

program does not contemplate private enforcement of its requirements (supra), and the program

would be nullified if servicers were subject to thousands of individual lawsuits on any basis, let

alone on the forms provided by the Treasury, boilerplate language in the Treasury s form TPP

should not be read as plaintiffs advocate to (1) bind Wells Fargo to permanently modify the

loan of every borrower on a TPP, (2) bind Wells Fargo to permanently modify the loan of every

borrower on a TPP immediately upon completion of three TPP payments, and (3) subject Wells

Fargo to private causes of action for failing to do so even if it determines that a borrower is not


16

eligible for a permanent modification. For all of these reasons, and as a matter of law, plaintiffs

TPPs cannot be considered either valid contracts or offers for permanent loan modifications.

(b) Plaintiffs have not alleged facts showing consideration.

Consideration is the primary basis for finding that a promise is legally enforceable. A

contract must have consideration to be enforceable and in order for a contract to have valid

consideration, the contract must be a bargained-for exchange in which there is a legal detriment

of the promisee or a corresponding benefit to the promisor. Neuhoff v. Marvin Lumber and

Cedar Co., 370 F.3d 197, 201 (1st Cir. 2004) (affirming dismissal of breach of contract claim

because Defendant s alleged promise to repair lacked consideration) (internal quotations

omitted) (citing Hinchey v. NYNEX Corp., 144 F.3d 134, 142 (1st Cir. 1998); see also Hutchins,

430 F.Supp.2d at 34 (dismissing breach of contract claim for lack of consideration).

The well-settled rule in the field of contracts has long been that performance of a pre-

existing legal duty that is neither doubtful nor subject to honest and reasonable dispute is not

valid consideration where the duty is owed to the promisor, or to the public at large. In re

Lloyd, Carr and Co., 617 F.2d 882, 890 (1st Cir. 1980). Under the pre-existing duty rule, the

partial payment by a debtor of an amount undisputedly due

such as plaintiffs modified loan

payments here is not consideration for the creditor s promise to discharge the entire debt.

First Nat l Bank of Boston v. Cartoni, 3 N.E.2d 177, 178 (Mass. 1936) ( [i]t is settled in this

commonwealth that the payment of a lesser sum in satisfaction of a larger overdue liquidated

sum does not discharge the whole debt, nor bar an action to recover the rest ).

Here, plaintiffs allege that they provided valid consideration when they made their trial

plan payments. See, e.g., Compl. ¶ 93. But making payments pursuant to the terms of a pre-

existing note does not constitute a bargained-for exchange of promises; plaintiffs were already

obligated to make monthly principal and interest payments under the terms of their original


17

notes, which are secured by their properties. See Exs. A and B to Freidel Decl. Under plaintiffs

trial modifications, Wells Fargo agreed to accept reduced monthly principal and interest

payments based on plaintiffs representations to Wells Fargo of financial hardship. Compl. ¶¶ 52

and 72. The monthly payment amounts under plaintiffs trial plans were substantially less than

the monthly amounts owed under plaintiffs original secured obligations to Wells Fargo. See

Exs. A and B to Freidel Decl.

The partial payments by plaintiffs to Wells Fargo of amounts undisputedly due and

secured by plaintiffs property cannot as a matter of law

be considered bargained-for

consideration or the result of a reciprocal agreement. In re Lloyd, Carr & Co., 617 F.2d at 890

( performance of a pre-existing legal duty . . . is not valid consideration where the duty is owed

to the promisor ); Boston Prof l Hockey Assoc. v. Comm r of Revenue, 443 Mass. 276, 287

(2005) ( [w]e have long held that performance of an existing legal duty or contractual obligation

is not sufficient consideration for a new promise by the obligee ). See also Restatement

(Second) of Contracts § 73 and Comment A. Accordingly, because plaintiffs have provided no

additional consideration to Wells Fargo (or more importantly, to their noteholders), no new,

enforceable contracts governing repayment of their mortgage loans have been formed.

(c) The TPP does not contain definite and essential terms.

Under Massachusetts law, [a] purported contract which is no more than an agreement to

agree in the future on essential terms, or one which does not adequately specify essential terms,

ordinarily will be unenforceable. Giuliano v. Nations Title, No. 96-2331, 1998 WL 45459, *4

(1st Cir. Jan. 23, 1998) (quoting Air Tech. Corp.v. Gen. Elec. Co., 199 N.E.2d 538, 548 (Mass.

1964)). In determining whether an agreement is an enforceable contract, the key issue for the

court is whether the parties intended to be bound when they signed the contract and, if so,

whether the initial agreement included all of the essential terms. Id. (quoting Rand-Whitney


18

Packaging Corp. v. Robertson Group, Inc., 651 F. Supp. 520, 535 (D. Mass. 1986)). The

essential terms must be set forth with sufficient definiteness and clarity. Id.; see also Hutchins,

430 F. Supp. 2d at 34 ( the law is well-settled that the essential terms of a contract must be

definite enough to ascertain the nature and extent of the parties obligations ).

Among the essential terms in a contract to lend money are the applicable rate of interest,

duration of the loan, and mode of repayment. See Jordan-Milton Mach. Inc. v. F/V Teresa Marie

II, 978 F.2d 32, 35 (1st Cir. 1992). Indeed, in Jordan-Milton, the court stated that the absence of

an agreement regarding when repayment was to begin and end, the amount to be repaid or

the rate of interest to be charged by the lender, requires the conclusion that these omitted terms

are material to a determination that there was no valid enforceable agreement. Id.; see also

Restatement (Second) of Contracts § 33 (1981) (contract terms must be reasonably certain so as

to enable a court to establish the existence of a breach and fashion a remedy therefrom). The

Court should reach the same conclusion here.

Plaintiffs trial plans do not contain any of the definite and essential terms that reflect an

agreement by the parties for permanent loan modifications and which agreement could be

enforced by the Court. The TPPs do not state the principal amounts of the modified loans, the

terms of the modified loans, the monthly payment amounts, the applicable interest rates, or the

amounts of escrow payments owed, if any. See Exs. 8, 11 and 12 to Compl [TPPs]. All of these

terms may be modified under HAMP, see SD 09-01, yet they are all left out of the TPPs. This is

so because plaintiffs TPPs are not permanent modifications nor are they offers for permanent

modifications that could be accepted by plaintiffs as confirmed by the statement in Paragraph

4(D) of the TPPs that all the terms and provisions of the Loan Documents remain in full force


19

and effect. The TPPs are silent with respect to what the parties agreed to as to any permanent

modification and, as such, it cannot be enforced by this Court.

(d) Plaintiffs have not alleged an entitlement to damages.

Even if plaintiffs TPPs were contracts, plaintiffs have not alleged that they were injured

as the result of Wells Fargo s purported failure to provide them with permanent modifications

immediately upon completion of three or more payments under their TPPS, and they have not

alleged a basis for the Court to award actual damages. The long-established general rule for

breach of contract recovery in Massachusetts is that the wronged party should receive the benefit

of his bargain, i.e., be placed in the same position as if the contract had been performed.

Verderber v. Perry, 1999 WL 525953, *2 n.4 (1st Cir. 1999) (quoting VMark Software, Inc. v.

EMC Corp., 642 N.E.2d 587 (Mass. App. Ct. 1994)). This award compensates the injured party

for the loss of the bargain, as measured by the loss in value to him of the other party s promised

performance, plus any incidental or consequential losses caused by the breach, less any cost that

he has avoided by not having to perform. See Restatement (Second) of Contracts § 347(a)-(c).

The purpose of contract damages is to put the party suffering from the breach in as good a

position it would be in had there been no breach. Restatement (Second) of Contracts § 347

Comment A (1981). Plaintiffs have alleged no harm caused to them by Wells Fargo nor any

valid measure or amount of damages to which they assert they are entitled.

First, plaintiffs have identified no monetary harm or financial loss that they have suffered

by virtue of not having received permanent modifications immediately upon completion of their

TPPs because there was none. Plaintiffs were obligated to repay the principal balances on their

loans, and they were in default. Since the beginning of their HAMP trial plans, Wells Fargo has

been accepting reduced, modified loan payments from plaintiffs. In light of plaintiffs existing

indebtedness under their loan notes, plaintiffs claims for damages are untenable.


20

Second, HAMP guidance suggests a 60-day grace period for servicers to provide a

modification if they determine that a modification was denied in error. See HAMP FAQs, 2009-

2010 Conversion Campaign, Q1222-01 at 3. Here, Wells Fargo did not deny plaintiffs

permanent modifications in error, or otherwise, and in fact offered plaintiffs permanent

modifications on April 1, 2010. Even if there was a finding that Wells Fargo denied plaintiffs

a permanent modification in error, which Wells Fargo disputes, Wells Fargo s provision of

permanent modifications to plaintiffs on April 1, 2010 should fall within the HAMP grace

period.

Third, plaintiffs claim they were harmed by Wells Fargo because they forewent pursuing

other remedies that might be pursued to save their home, such as restructuring their debt under

the bankruptcy code, or pursuing other strategies to deal with their default, such as selling their

home. Compl. ¶ 98. There is no support, however, for the Court to find that plaintiffs alleged

lost opportunities for mitigating their financial burdens are a cognizable basis for a claim of

damages. See, e.g., Redgrave v. Boston Symphony Orchestra, Inc., 855 F.2d 888, 899 (1st Cir.

1988) (conclusory statement that business opportunities were lost because of breach of contract

was not sufficient to support award of damages); Kiely v. Raytheon, 105 F.3d 734, 739 (1st Cir.

1997) (rejecting speculative claims of damages). Moreover, even if damages for these alleged

speculative injuries were recoverable (and could be assessed a present value), plaintiffs have not

alleged causation, that is, they have identified no damages that they have suffered due to any

conduct of Wells Fargo, as their loan servicer. Kiely, 105 F.3d at 739. Indeed, they do not allege

that Wells Fargo prevented plaintiffs from seeking bankruptcy relief, from selling their homes, or

from pursuing any alternative and more preferable solutions to address their debt obligations.

For all these reasons, Count I should be dismissed.


21

C. Plaintiffs Have Failed To State A Claim For Breach Of The Implied Covenant Of Good Faith And Fair Dealing.

In Count II, plaintiffs allege that Wells Fargo breached the implied covenant of good

faith and fair dealing. Compl. ¶¶ 99-104. Plaintiffs claims should be dismissed because they

have failed to allege the existence of a contract, any bad faith on the part of Wells Fargo, or any

economic loss as the result of a purported breach.

1. Plaintiffs have failed to allege facts to support a breach of the implied covenant claim against Wells Fargo.

[T]o demonstrate a claim for the breach of the covenant of good faith and fair dealing,

the plaintiff must show that an enforceable contract existed between the two parties.

Christensen v. Kingston School Committee, 360 F. Supp. 2d 212, 226 (D. Mass. 2005) (no breach

of implied duty because no evidence that employer fired employee in bad faith or with improper

motive) (internal quotations omitted). The purpose of the implied covenant is to ensure that

neither party interferes with the ability of the other to enjoy the fruits of the contract, and that,

when performing the obligations of the contract, the parties remain faithful to the intended and

agreed expectations of the contract. Chokel v. Genzyme Corp., 867 N.E.2d 325, 329 (Mass.

2007) (internal citations and quotations omitted). Because the Complaint does not contain

allegations showing that a contract was formed to permanently modify plaintiffs loans, there are

no allegations sufficient to show how Wells Fargo breached any implied covenant of good faith

and fair dealing. The only valid contract at issue here is the original loan agreement between

plaintiffs and their investor (a non-party); there are no allegations in this case that Wells Fargo,

as servicer, did anything to violate plaintiffs reasonable expectations as to that contract.

Moreover, not every breach of contract is a breach of the implied covenant of good faith

and fair dealing. Christensen, 360 F. Supp.2d at 227 (dismissing breach of the implied covenant

claim and stating claims for breach of the implied covenant of good faith and fair dealing are


22

distinct from simple breach of contract claims and require additional factual allegations of

unfairly leveraging the contract terms for undue economic advantage ). As the district court has

stated, breach of the implied covenant requires the plaintiff to allege conduct taken in bad faith

either to deprive a party of the fruits of labor already substantially earned or unfair leveraging of

the contract terms to secure undue economic advantage. Id. See also Sonoran Scanners, Inc. v.

Perkinelmer, Inc., 585 F.3d 535, 541 (1st Cir. 2009) (finding no breach of implied covenant); see

also Schultz v. R.I. Hosp. Trust Nat l Bank, N.A., 94 F.3d 721, 730 (1st Cir. 1996) (no support in

record for finding that defendant acted with the sort of dishonest purpose or conscious

wrongdoing necessary for a finding of bad faith or unfair dealing ); Equip. & Sys. for Indus. v.

Northmeadows Constr. Co., 798 N.E.2d 571, 575 (Mass. App. Ct. 2003) (affirming dismissal of

claim for breach of implied duty and stating there is nothing in the complaint from which one

might draw the reasonable inference that the [buyer s] refusal to sign [agreement] was done in

bad faith ); Birbiglia v. St. Vincent Hosp., Inc., 692 N.E.2d 9, 14 n. 5 (Mass. 1998) (specific

intent required to establish a violation of any duty of good faith and fair dealing).

Here, plaintiffs breach of implied covenant claim adds nothing to their breach of contract

claim. Plaintiffs have not alleged as they must -- that Wells Fargo acted in bad faith when it

did not provide plaintiffs with their permanent modifications immediately upon completion of

three or more trial plan payments. See Compl. ¶¶ 103 (alleging that Wells Fargo failed to

perform loan servicing functions , properly supervise its agents and employees , follow

through on written and implied promises , and follow through on contractual obligations ). In

the lender-borrower context, the implied covenant requires that the bank not purposefully

injure [plaintiffs ] right to obtain the benefit of the contract. Famm Steel, Inc. v. Sovereign

Bank, 571 F.3d 93, 100 (1st Cir. 2009) (quoting Shawmut Bank, N.A. v. Wayman, 606 N.E.2d


23

925, 928 (Mass. App. Ct. 1993)); accord In re Greenberg, 212 B.R. 422, 429 (Bankr. D. Mass.

1997) (bank did not breach implied duty of good faith and fair dealing in transactions with

mortgage borrower by failing to disclose how prepayment on mortgage loan could best be

applied); Ferris v. Fed. Home Loan Mortgage Corp., 905 F. Supp. 23, 28 (D. Mass. 1995)

(bank s failure to provide information to mortgagor did not rise to level of breach of implied

covenant of good faith and fair dealing). Plaintiffs have alleged no bad faith by Wells Fargo, as

loan servicer, or conduct intended to purposefully injure [plaintiffs ] right to obtain the benefit

of the contract in connection with the modification of their mortgage loans. On this basis alone,

plaintiffs breach of implied covenant claim should be dismissed.

2. Plaintiffs have not alleged an entitlement to damages for breach of the implied covenant

An action for breach of the covenant of good faith and fair dealing is an action on the

contract. As such, damages available for a breach of implied covenant claim are damages arising

out of contract, and they are not intended to be financial windfalls in the form of damages not

otherwise recoverable. Ayash v. Dana-Farber Cancer Inst., 822 N.E.2d 667, 685-86 (Mass.

2005) (plaintiff only entitled to damages for economic loss; in awarding damages for breach of

the implied covenant of good faith and fair dealing, the goal is to compensate an employee for

past services and to deny the employer any readily definable, financial windfall resulting from

the breach); McCone v. New England Tel. and Tel. Co., 471 N.E.2d 47, 50 (Mass. 1984) (holding

that damages to professional reputations, disruption of personal lives, and great pain of body and

mind are not compensable losses because suit for breach of implied covenant of good faith and

fair dealing is suit on the contract, and these damages are not contract damages).

Plaintiffs have not alleged how any purported delay by Wells Fargo in providing them

with permanent modifications caused plaintiffs any economic loss, or provided Wells Fargo (or,


24

more important, the investor) with a financial windfall in light of plaintiffs existing indebtedness

under their mortgage contracts. For each of these reasons, Count II should be dismissed.

D. Plaintiffs Have Failed To State A Claim For Promissory Estoppel.

Plaintiffs have failed to allege a valid claim for promissory estoppel. Promissory

estoppel is defined by the Restatement (Second) of Contracts (1981) as follows:

A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.

Restatement (Second) of Contracts § 90 (1981). See also Loranger Constr. Corp. v. E.F.

Hauserman Co., 384 N.E.2d 176, 179 (Mass. 1978); Carroll v. Xerox Corp., 294 F.3d 231, 242

(1st Cir. 2002). Under Massachusetts law, a promisee s reasonable and detrimental reliance on

a promise may serve as a substitute for consideration and render the promise enforceable

pursuant to a traditional contract theory, but only if the promise can prove all the necessary

elements of a contract other than consideration. Kiely, 105 F.3d at 736 (citing R.I. Hosp. Trust

Nat l Bank v. Varadian, 647 N.E.2d 1174, 1179 (Mass. 1995)).

Here, as discussed above, plaintiffs have not alleged and cannot allege that a contract

was formed absent consideration. There was no a meeting of the minds such that a binding

promise based on certain and definite terms was made. See, e.g., Santoni v. Fed. Deposit Ins.

Corp., 677 F.2d 174, 179 (1st Cir. 1982) (applying federal law of promissory estoppel, and

finding alleged promises too indefinite and uncertain to sustain a claim of promissory estoppel,

and stating that claim sounds in tort for misrepresentation, deceit or abuse of discretion not

contract law). No promise existed that was unambiguous in its terms. See supra at III(B)(a).

The TPP did not contain any terms governing the alleged permanent loan modification. The TPP

governed the trial period only and Wells Fargo could not have expected plaintiffs to rely on them


25

as permanent modifications of their loans, see, e.g., Compl., Exs. 8 and 11 at 2(G), 4(D),

particularly where the TPP states that the original loan documents remain in full force and effect.

Also as stated above, HAMP guidelines clearly contemplated that a TPP was not a guarantee that

a permanent loan modification would be offered.

Even if plaintiffs could establish promissory estoppel, their recovery may be limited as

justice requires. Santoni, 677 F.2d at 178. Here, plaintiffs have not alleged that they suffered

recoverable damages as a result of having relied on an alleged promise that a permanent

modification would be provided. See Michelson v. Digital Fin. Servs. 167 F.3d at 720

(plaintiff s promissory estoppel claim fails because he could not establish that that he reasonably

relied on the promise to his detriment). As stated above, in light of their existing indebtedness,

plaintiffs claim that they are entitled to damages is unsustainable. Accordingly, Count III

should be dismissed.

IV. CONCLUSION

For each of the foregoing reasons, defendant Wells Fargo Bank, N.A. respectfully

requests that the Court dismiss the Complaint with prejudice and award such other relief as the

Court deems just and necessary.

Dated: June 2, 2010

Respectfully submitted,

/s/ Irene C. Freidel______________________ Irene C. Freidel (BBO No. 559051) [email protected]

David D. Christensen (BBO No. 666401) [email protected]

Kristin A. Davis (BBO No. 673491) [email protected]


26

K&L GATES LLP State Street Financial Center One Lincoln Street Boston, MA 02111 617.951.9154 (phone) 617.261.3175 (fax)

Counsel for Defendant Wells Fargo Bank, N.A.

Certificate of Service

I, Irene C. Freidel, hereby certify that on June 2, 2010, I electronically filed the foregoing

document with the Clerk of Court using the CM/ECF system which will automatically send

email notification of such filing to the following attorneys of record:

Gary Klein (BBO No. 560769) Shennan Kavanagh (BBO No. 655174) Kevin Costello (BBO No. 669100) RODDY KLEIN & RYAN 727 Atlantic Avenue Boston, MA 02111-2810 Tel: (617) 357-5500 Fax: (617) 357-5030

Stuart Rossman (BBO No. 430640) Charles Delbaum (BBO No. 543225) NATIONAL CONSUMER LAW CENTER 7 Winthrop Square, 4th Floor Boston, MA 02110 (617) 542-9595 (telephone) (617) 542-8010 (fax)

Michael Raabe (BBO. No. 546107) NEIGHBORHOOD LEGAL SERVICES 170 Common Street, Suite 300 Lawrence, MA 01840 Tel: (978) 686-6900 Fax: (978) 685-2933

/s/ Irene C. Freidel______________________ Irene C. Freidel


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