Adam v. Wells Fargo Bank, N.A.

• Decision Date: 28 September 2012
• Docket Number: Civil Action No. ELH–09–2387.
• Citation: 901 F.Supp.2d 623
• Parties: Abdou–Malik YACOUBOU Adam, Plaintiff, v. WELLS FARGO BANK, N.A., Defendant.
• Court: U.S. District Court — District of Maryland

901 F.Supp.2d 623

Abdou–Malik YACOUBOU Adam, Plaintiff,

v.WELLS FARGO BANK, N.A., Defendant.

Civil Action No. ELH–09–2387.

United States District Court, D. Maryland.

Sept. 28, 2012.

Abdou–Malik Yacoubou Adam, Baltimore, MD, pro se.

Michael S. Barranco, Treanor Pope and Hughes PA, Towson, MD, for Defendant.

MEMORANDUM OPINION

ELLEN LIPTON HOLLANDER, District Judge.

Abdou–Malik Yacoubou Adam (“Yacoubou”),¹ the self-represented plaintiff, filed suit against Wells Fargo Bank, N.A. (“Wells Fargo”), defendant.² In his Complaint (ECF 2), plaintiff set forth five claims arising from Wells Fargo's servicing of a mortgage on real property owned by Mr. Yacoubou, located at 3805 Mayberry Avenue in Baltimore, Maryland (the “Property”), and sought $2 million in “compensatory damages.” On July 28, 2010, 2010 WL 3001160, Judge J. Frederick Motz dismissed Count II of the complaint, which alleged discrimination on the basis of “race, national origin, and religion.” See Memorandum and Order (ECF 32 & 33).³

On August 26, 2011, I issued a Memorandum Opinion, ruling on cross-motions for summary judgment.⁴ In particular, I granted judgment in favor of Wells Fargo as to Count IV, alleging negligence, and Count V, which alleged “strict liability,” but which the Court construed liberally as a claim under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692 et seq.⁵See Memorandum Opinion and Order (ECF 60 & 61). Two counts survived the cross-motions for summary judgment: Count I, alleging breach of contract, and Count III, which asserted the tort of defamation, and which could also liberally be construed as alleging violation of the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. §§ 2601 et seq. As to those counts, I denied the motions for summary judgment. I also granted the parties a limited period of additional discovery, after which the parties would be permitted to file renewed motions for summary judgment.

Mr. Yacoubou noted an appeal of my summary judgment ruling to the United States Court of Appeals for the Fourth Circuit, although my summary judgment ruling was not a final judgment that disposed of all claims in the suit. The Fourth Circuit dismissed the appeal in April 2012, as premature. See Yacoubou Adam v. Wells Fargo Bank, 471 Fed.Appx. 121, 122 (4th Cir.2012) ( “The orders Adam seeks to appeal are neither final orders nor appealable interlocutory or collateral orders. Accordingly, we ... dismiss the appeal for lack of jurisdiction.”).

Thereafter, the parties filed renewed cross-motions for summary judgment, which were fully briefed.⁶ I heard oral argument on the motions on September 27, 2012. For the reasons that follow, I will grant in part and deny in part the parties' motions for summary judgment. In particular, judgment will be entered in favor of Mr. Yacoubou for nominal damages of $250 as to Count I (breach of contract). However, judgment will be entered in favor of Wells Fargo as to liability for compensatory damages as to Count I. And, judgment will be granted to Wells Fargo as to Count III.

Background

The facts underlying the parties' claims were fully discussed in my prior Memorandum Opinion (ECF 60). Although the parties have adduced some additional evidence in connection with the renewed motions, none of the additional evidence has called into dispute any of the factual background set forth in the earlier opinion. Accordingly, I expressly incorporate my earlier Memorandum Opinion into this ruling, and assume the reader's familiarity with it. I reiterate only the facts that are most salient to the issues that remain in dispute.

Mr. Yacoubou purchased the Property in January 2005, and refinanced the Property in October 2007. Under the refinancing agreement, Mr. Yacoubou's total monthly mortgage payment was $1,652.50 (inclusive of principal, interest on the loan, and amounts to be escrowed for insurance and real estate taxes). Shortly after the refinancing, the mortgage lender for the refinancing agreement transferred the servicing of the mortgage to Wells Fargo. See ECF 49–3.

Beginning in June or July 2008, financial difficulties on Mr. Yacoubou's part and a payment dispute that arose between Mr. Yacoubou and Wells Fargo caused the mortgage loan to become delinquent. The nature of the dispute is not relevant to the issues now at hand. As a result of the dispute, Wells Fargo proposed a modification of Mr. Yacoubou's loan.⁷

On November 3, 2008, Wells Fargo sent Mr. Yacoubou a letter to “confirm [Wells Fargo's] formal approval of a loan modification/restructure of [Yacoubou's] mortgage loan,” along with a “Loan Modification Transmittal Form” and a proposed “Loan Modification Agreement” (the “Modification”). See ECF 50–13. The letter asked Mr. Yacoubou to “sign the enclosed loan modification agreement and return it.” The letter also stated: “This proposal is valid for five (5) days from the date of this letter.” The Modification contained two blank signature lines, one for Yacoubou and one for “Wells Fargo Bank, N A, Officer.” Id. Mr. Yacoubou signed the Modification on November 10, 2008, and returned it to Wells Fargo.⁸See id. However, the record does not contain a copy reflecting that it was signed by a representative of Wells Fargo. Among other changes to the terms of Mr. Yacoubou's mortgage loan, the Modification lowered Mr. Yacoubou's total monthly payment from $1,652.50 to $1,357.74, representing a monthly principal and interest payment of $1,024.53, plus a monthly escrow payment of $333.21 for taxes and insurance.

Wells Fargo asserts that it sent another proposed modification agreement to Mr. Yacoubou on or about November 28, 2008. According to Wells Fargo, the second modification was sent to plaintiff after Wells Fargo “determined that there was a minor error in the monthly payment calculation” set forth in the Modification. ECF 50–1 at 5. The only difference between the first offer and the second offer was that Mr. Yacoubou's monthly payment was seven cents more ($1,357.81 rather than $1,357.74) under the second offer.⁹ At his deposition in December 2010, Mr. Yacoubou claimed that he never received the second modification offer.

At the time I considered the original cross-motions for summary judgment, the alleged second modification offer was not contained in the record. After I issued my Memorandum Opinion in August 2011, Wells Fargo was able to locate an electronic copy of the second modification offer, and submitted it as an exhibit to a status report filed on November 1, 2011. See ECF 72–1.

In any event, on January 6, 2009, having not received further communication from Wells Fargo or a confirmation regarding the original loan Modification, Mr. Yacoubou sent Wells Fargo a check for $1,357.74, the monthly payment specified in the Modification. On January 15, 2009, Wells Fargo sent Yacoubou a letter advising him that his “request for Loan Modification has been denied” because the parties were “unable to come to a mutual agreement regarding [Mr. Yacoubou's] request for a workout.” On January 19, 2009, Wells Fargo returned Yacoubou's $1,357.74 check to him, stating that “the funds do not represent the total amount due to reinstate the account.” On or about February 9, 2009, Mr. Yacoubou sent Wells Fargo a check for $2,715.48 ( i.e., two monthly payments of $1,357.74). Again, on February 13, 2009, Wells Fargo returned the check to Yacoubou, stating that it was insufficient “to reinstate the account.” The February 2009 check was Mr. Yacoubou's last attempt to send payment to Wells Fargo.

On April 8, 2009, Wells Fargo, through substitute trustees, initiated a foreclosure action against Mr. Yacoubou in the Circuit Court for Baltimore City, captioned Buonassissi v. Yacoubou Adam, Civ. No. 24–O–09–001553 ( “Buonassissi I” ). A foreclosure sale of the Property was scheduled for July 28, 2009. However, on June 15, 2009, Mr. Yacoubou filed a motion to enjoin the foreclosure sale. According to Wells Fargo, Mr. Yacoubou also “threatened litigation.” On June 18, 2009, before the circuit court ruled on Mr. Yacoubou's motion, Wells Fargo's substitute trustees voluntarily dismissed Buonassissi I.

On July 28, 2009, Mr. Yacoubou filed his complaint in the case sub judice. The next day, Ashley Kenney, an employee of the law firm representing the substitute trustees in Buonassissi I, wrote to Yacoubou, offering on behalf of Wells Fargo to “honor” the original Modification, to which plaintiff had initially agreed. See ECF 50–17. Ms. Kenney wrote:

This letter is to inform you that Wells Fargo Bank, N.A. will honor the 11/3/2008 loan modification agreement conditioned on you bringing the arrears current no later than September 1, 2009. Please contact us as soon as possible to arrange for payment of the arrearage. You will need to pay $12,144.66 to pay your arrearages in full and bring your loan current by September 1, 2009. (This amount was calculated based on nine (9) payments of $1,357.74 that will be due as of September 1, 2009 equaling $12,219.66. You were given a credit of $75.00 towards this arrearage bringing your total balance to $12,144.66).

Mr. Yacoubou rejected Wells Fargo's offer, and this litigation continued. Meanwhile, on March 4, 2010, the substitute trustees initiated another foreclosure proceeding against Mr. Yacoubou in the Circuit Court for Baltimore City, captioned Buonassissi v. Yacoubou Adam, Civ. No. 24–O–10–000968 ( “Buonassissi II” ). However, according to the public, unofficial docket for that case, available via the Maryland Judiciary's “Case Search” website (http:// casesearch. state. md. us/), the substitute trustees voluntarily dismissed Buonassissi II, without prejudice, in October 2011. No foreclosure sale of the Property has occurred.

As noted, at least until the Modification was executed, plaintiff was in default as to his mortgage payments. Moreover, it is undisputed that plaintiff has not made any mortgage payments since his unsuccessful...