4th Circuit: Haylett v. Wells Fargo Bank, N.A.- No Private Right of Action for HAMP Denial

Summary:

After falling delinquent on their mortgage payments to Wells Fargo in early 2010, the Hayletts sought a HAMP modification. After being supplied with initial documentation, Wells Fargo requested further information from the Hayletts on March 1, 2010, allowing ten days to respond. The Hayletts provided the requested documents on March 22, 2010, but Wells Fargo denied the request and proceeded to foreclosure. The Hayletts brought suit alleging breach of implied-in-fact contract, negligence, violations of the Maryland Consumer Protection Act (“MCPA”), negligent misrepresentation, and common law fraud. All causes of action were dismissed by the district court which held that absent a Trial Period Plan (“TPP”) there was no privity of contract on which such claims could be based.

On appeal, the Hayletts argued that Wells Fargo has, by agreeing to participate in HAMP, bound itself to comply with the “standard of care” in processing applications. The Court of Appeals held, however, that there was no conduct sufficient to constitute a “meeting of the minds” evidencing a contract, implied-in-fact or otherwise, with the Hayletts. Wells Fargo’s agreement with the U.S. Treasury was an agreement between the bank and the Treasury, an agreement to which the Hayletts were neither a party nor which they had authority to enforce.

The MCPA claim, namely that it was a misrepresentation to require additional pay stubs when two had already been provided, failed since the Hayletts had failed to timely comply with a reasonable request. Additionally, the both the MCPA and common law causes of action, “which sounds in fraud”, is subject to the heightened pleading requirements of Federal Rule of Civil Procedure 9(b), including “‘the time, place, and contents of the false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby.’” Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 784 (4th Cir. 1999). The complaint filed by the Hayletts failed to rise to this standard.

For a copy of the opinion, please see:

Haylett v Wells Fargo- No Private Right of Action for HAMP Denial.pdf

About

1. Bachelor of Arts degree in English Literature from Washington University, 1993. 2. Juris Doctor degree from George Washington University, 1996. Admissions to Practice of Law: North Carolina Bar, 1996. Federal District Courts for the Eastern and Middle Districts of North Carolina. Specialty Certification: North Carolina State Bar: Certified as a Specialist in Consumer Bankruptcy. Areas of Practice: Practice limited to consumer and business debtor bankruptcy law, 1998 to present. Memberships: National Association of Consumer Bankruptcy Attorneys (NACBA). North Carolina Academy of Trial Lawyers (NCATL). North Carolina Bar Association, Bankruptcy Section. Lectures prepared and presented: North Carolina Academy of Trial Lawyers seminar on bankruptcy; Topic: Counseling the Consumer Debtor Prior to Court - C.Y.A. Forms to Help 'Gird They Loins'; 2001. Middle District Bankruptcy Seminar; Topic: Preparing Chapter 13 Plans; 2002. NACBA National Convention; Topic: Efficient Office Practices; 2003. NACBA National Convention; Topic: Chapter 7 vs. Chapter 13 Debates; 2004. Middle District Bankruptcy Seminar; Topic: Chapter 7 & 13 Hot Issues; 2004. Positions held: NACBA National Convention; Convention Chair; 2008. NACBA National Convention; Panel Moderator: Topic: Basic Bankruptcy Issues; 2008. NACBA National Convention; Panel Moderator; Topic: Chapter 13-Disposable Income and Other Issues; 2007. NACBA National Convention; Panel Moderator; Topic: Representing Members of the Military and Their Families; 2007. NACBA, Member of National Board of Directors, 2006 to present. NCATL, Chair of the Bankruptcy Section, 2003 to 2007. NACBA, Chair of the North Carolina Section, 2003 to 2007. NC Bar Association, Bankruptcy Section, Bankruptcy Council Member, 2004 to present.

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