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Marra v. Wells Fargo Bank, N.A.

Superior Court of New Jersey, Appellate Division

August 30, 2013

WILLIAM MARRA, Plaintiff-Appellant,


Submitted August 27, 2013

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-382-12.

Whiteman Law Group, attorneys for appellant (Timothy M. O'Donnell and Brian L. Whiteman, on the brief).

Reed Smith LLP, attorneys for respondents (Henry F. Reichner, on the brief).

Before Judges Harris and Fasciale.


Plaintiff appeals from a May 30, 2012 order dismissing his complaint against defendants Wells Fargo Bank, N.A., and Wells Fargo Home Mortgage (collectively, "Wells Fargo") pursuant to Rule 4:6-2(e). We affirm.

In June 2009, plaintiff defaulted on his residential mortgage and approached Wells Fargo, his mortgage company, regarding a loan modification. In October 2009, Wells Fargo informed plaintiff that he might qualify for a loan modification under a federal Home Affordable Modification Program (HAMP), and explained that participating in the HAMP entailed a two-step process. Wells Fargo would first verify plaintiff's income while it allowed plaintiff to participate in a Trial Period Plan (TPP). Then, if plaintiff qualified for a loan modification under the HAMP, Wells Fargo would finalize the loan modification terms. Wells Fargo wrote to plaintiff and explained that

[t]he monthly [TPP] payments are based on the income information that you previously provided to us. They are also our estimate of what your payment will be IF we are able to modify your loan under the terms of the program. If your income documentation does not support the income amount that you previously provided in our discussion, two scenarios can occur:
1) Your monthly payment under the [TPP] may change
2) You may not qualify for this loan modification program
If you do not qualify for a loan modification, we will work with you to explore other options available to help you keep your house or ease your transition to a new home.

The TPP itself reiterated that eligibility for modification of a loan under the HAMP included a two-step process and stated that

[t]he [TPP] is the first step. Once we are able to confirm your income and eligibility for the program, we will finalize your loan modification agreement ("Modification Agreement"), which will reflect the terms of your modified loan. . . .

Thus, obtaining a loan modification under the HAMP was conditioned on confirmation of plaintiff's income and eligibility. Wells Fargo deemed plaintiff unqualified for the HAMP, and the parties therefore never reached the second step of the process.

In May 2010, the parties agreed to a non-HAMP modified loan, which increased plaintiff's monthly principal and interest payments and extended the term of his original loan. This agreement allowed plaintiff to remain in his house. In September 2011, plaintiff defaulted under the non-HAMP modification loan.

In January 2012, plaintiff filed a nine-count complaint against Wells Fargo seeking money damages and an order compelling Wells Fargo to enroll him in the HAMP.[1] In March 2012, Wells Fargo moved to dismiss the complaint pursuant to Rule 4:6-2(e). Wells Fargo argued, among other things, that plaintiff was not contractually entitled to a loan modification under the HAMP. Plaintiff contended that the TPP constituted a contractual right to obtain a loan modification under the HAMP. Plaintiff's counsel also asserted that Wells Fargo misrepresented to plaintiff that he would qualify for a loan modification under the HAMP.

In May 2012, the motion judge conducted oral argument and rendered an extensive oral opinion. The judge concluded that plaintiff is not entitled to a HAMP loan modification based on the TPP, rejected any suggestion that there is a private cause of action for denial of a HAMP application, and dismissed the complaint with prejudice. The judge allowed plaintiff an opportunity to amend the complaint regarding allegations that Wells Fargo engaged in fraud. Plaintiff did not file an amended complaint and this appeal followed.

On appeal, plaintiff repeats his contention that by entering into the TPP he was contractually entitled to a loan modification under the HAMP, and he argues that the judge misapplied the law. Plaintiff maintains that his causes of action arise not from the denial of his HAMP application, but rather flow from the TPP's terms.

Because the judge dismissed the complaint for failure to state a cause of action pursuant to Rule 4:6-2(e), we review the dismissal de novo. Smerling v. Harrah's Entm't, Inc., 389 N.J.Super. 181, 186 (App. Div. 2006). A trial court should grant the dismissal "in only the rarest of instances." Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 772 (1989). Such review "is limited to examining the legal sufficiency of the facts alleged on the face of the complaint, " and, in determining whether dismissal under Rule 4:6-2(e) is warranted, the court should not concern itself with the plaintiff's ability to prove its allegations. Id. at 746. If "the fundament of a cause of action may be gleaned even from an obscure statement of claim, " then the complaint should survive this preliminary stage. Craig v. Suburban Cablevision, Inc., 140 N.J. 623, 626 (1995) (citation omitted).

Even applying the liberal standard for finding a cause of action required under Rule 4:6-2(e), we cannot construe plaintiff's complaint as establishing a valid claim. "[A] court must dismiss [a] complaint if it has failed to articulate a legal basis entitling plaintiff to relief." Sickles v. Cabot Corp., 379 N.J.Super. 100, 106 (App. Div.) (citing Camden Cnty. Energy Recovery Assocs., L.P. v. N.J. Dep't of Envtl. Prot., 320 N.J.Super. 59, 64 (App. Div. 1999), aff'd o.b., 170 N.J. 246 (2001)), certif. denied, 185 N.J. 297 (2005).

Our analysis begins and ends with the language of the TPP. On October 31, 2012, plaintiff signed the three-page TPP. The TPP states that "[t]his [p]lan will not take effect unless and until both [plaintiff] and [Wells Fargo] sign it and [Wells Fargo] provides [plaintiff] with a copy of this [p]lan with [a signature from Wells Fargo]." Wells Fargo did not sign the TPP or provide to plaintiff a copy of a TPP containing its signature. By signing the TPP, plaintiff acknowledged that

the [TPP] is not a modification of the Loan Documents and that the Loan Documents will not be modified unless and until (i) [plaintiff] meet[s] all of the conditions required for modification, (ii) [plaintiff] receive[s] a fully executed copy of a Modification Agreement, and (iii) the Modification Effective Date has passed. . . .

The TPP explained that it was the first step of a two-step process. It is undisputed that Wells Fargo did not sign either a TPP or a HAMP modification agreement. Thus, we agree with the judge that plaintiff is not entitled to a HAMP loan modification based solely on the TPP.

After a thorough review of the record and consideration of the controlling legal principles, we conclude that the plaintiff's remaining arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E).


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