Bloch v. Wells Fargo Home Mortg., Bank of Am. Mortg. Capital Corp.

• Citation: 755 F.3d 886
• Decision Date: 03 February 2014
• Docket Number: Non–Argument Calendar.,No. 13–10680,13–10680,n–Argument Calendar.
• Parties: Peter BLOCH, Maria Bloch, Plaintiffs–Appellants, v. WELLS FARGO HOME MORTGAGE, Bank of America Mortgage Capital Corporation, a Foreign Corporation, a.k.a. Bank of America Corporation, Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

755 F.3d 886

Peter BLOCH, Maria Bloch, Plaintiffs–Appellants,
v.
WELLS FARGO HOME MORTGAGE, Bank of America Mortgage Capital Corporation, a Foreign Corporation, a.k.a. Bank of America Corporation, Defendants–Appellees.

No. 13–10680
Non–Argument Calendar.

United States Court of Appeals,
Eleventh Circuit.

Feb. 3, 2014.

[755 F.3d 887]

Lawrence Allen Caplan, Lawrence A. Caplan, PA, Boynton Beach, FL, for Plaintiffs–Appellants.

Dean Angelo Morande, Michael K. Winston, Alana Zorrilla–Gaston, Kristen Alexandra Gore, Carlton Fields, PA, West Palm Beach, FL, for Defendants–Appellees.

Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 9:11–cv–80434–KLR.

[755 F.3d 888]

Before MARCUS, MARTIN and BLACK, Circuit Judges.

PER CURIAM:

Peter and Maria Bloch appeal the district court's grant of summary judgment to Wells Fargo Home Mortgage ¹ (Wells Fargo) in the Blochs' diversity action. After review,² we affirm the district court's grant of summary judgment to Wells Fargo.

I. BACKGROUND

The Blochs entered into a mortgage and note in the amount of $324,000 on November 18, 2002 (the loan). Wells Fargo is the servicer of the loan.

In 2007, the Blochs defaulted on the loan by failing to make payments due. A foreclosure action was filed against the Blochs in 2008. The Blochs then entered into a loan modification/restructure of the mortgage loan, and, as a result the foreclosure action was voluntarily dismissed on June 30, 2008.

Subsequently, the Blochs defaulted on the modified loan, and a second foreclosure action was filed. On September 20, 2009, Wells Fargo sent the Blochs a letter inviting them to apply to participate in the federal Home Affordable Modification Program (HAMP). The Blochs completed and submitted their application shortly thereafter. The Blochs made four trial payments of $2,162 while waiting for a decision regarding whether their loan qualified for a permanent modification under the HAMP. After reviewing the relevant information, Wells Fargo determined the Blochs did not qualify for a permanent loan modification under the HAMP. As a result, the four trial payments were credited to the outstanding balance on the Blochs' modified loan.

On January 11, 2010, the Blochs entered into a forbearance agreement with Wells Fargo. The Special Forbearance Agreement provided that the “lender is under no obligation to enter into any further agreement, and this forbearance shall not constitute a waiver of the lender's right to insist upon strict performance in the future.” The Special Forbearance Agreement further provided that “[a]ll of the provisions of the note and security instrument, except as herein provided, shall remain in full force and effect.”

The Blochs have not made any payments on their loan since April 2010. On February 14, 2011, the Blochs were offered a permanent loan modification by Wells Fargo, but they declined. The Blochs then filed an action in federal district court in April of 2011. The Blochs filed a Third Amended Complaint on June 22, 2012, alleging several causes of actions. By the time the district court considered Wells Fargo's motion for summary judgment, the Blochs' only remaining claims were (1) the portion of a promissory estoppel

[755 F.3d 889]

claim that related to the purported representation that the Blochs were HAMP participants when they were not and would be considered for loan modification when they were not; and (2) a negligent misrepresentation claim as it related to the October 23, 2009, representation by Wells Fargo employee Aerek Stephens that the Blochs were HAMP participants. The Blochs appeal the district court's grant of summary judgment to Wells Fargo on both issues.

II. DISCUSSION A. Promissory Estoppel

The Blochs contend that Wells Fargo's September 2009 letter stating they “may be eligible for a trial modification plan under [HAMP], and we estimate your new payment amount to be $2,162,” takes this action outside the ambit of the bank statute of frauds. They assert the district court overlooked critical evidence, specifically, transcripts of telephone conversations with Wells Fargo representatives that Peter Bloch recorded. The Blochs contend they detrimentally...