Archives for March 2014

VERDICT: Defense, no fraud, deceit, CPA violation by bank in connection with elderly delinquent borrower’s request for HAMP modification… elder abuse claims dismissed on summary judgment, directed verdict against refinance/insurance products claims.

A Helena jury found 10-2 that Joyce Bissell did not prove that Wells Fargo Bank violated the Montana CPA or committed deceit in its dealings with her, and 12-0 that it did not commit fraud in its dealings with her.

Bissell, 80, borrowed $172,000 from Capitol Commerce Mortgage in 2002 and executed a mortgage on her property near Belt. She refinanced with Wells Fargo in 2005 and 2008 with “no doc” loans in which no proof of income was necessary. She alleged that the Wells salesman who completed the refinances falsely inflated her income. The salesman testified at trial and denied that he had falsified her income figures. Bissell testified that she had no memory of the refinance transactions. In 2010 she purchased several insurance products from 3rd-party insurers, with premiums billed to her on her monthly Wells mortgage billing statements. In 9/11 she began missing mortgage payments. She alleged that Wells told her daughters (who were speaking to Wells on her behalf), that she should cease payments to qualify for a loan modification under the Home Affordable Modification Program. With the assistance of her daughters, she applied and was reviewed for a HAMP modification. Wells informed her 1/6/12 that she did not qualify. It referred her loan for foreclosure 1/10 and a notice of trustee’s sale was recorded 1/18. She sued claiming elder abuse, negligence, negligent misrepresentation, fraud, deceit, and violation of the CPA. Judge Sherlock dismissed on summary judgment her claims under the Montana Elder Abuse and Persons with Developmental Disabilities Abuse Prevention Act, §§ 52-3-801 et seq, and she withdrew her claims for negligence and negligent misrepresentation prior to trial. Bissell moved for discovery sanctions in 10/13 and claimed in part that Wells’s discovery misconduct impaired her ability to respond to its summary judgment motion. Sherlock sanctioned Wells by denying its remaining summary judgment motions including the parts based on its statute of limitations defense. However, he also ruled that there was no issue raised by Wells’s motion that could not be handled at trial either by motion or by proper instructions, and that it would be allowed to advance the same arguments at trial that it advanced in its summary judgment motion. According to Bissell, the bulk of her case was removed from the jury’s consideration on the basis of statute of limitations. Following her case-in-chief, Sherlock granted a partial directed verdict on claims relating to Wells’s refinancing of her mortgage in 2005 and 2008, and on claims relating to her 2010 purchase of insurance products. The jury was permitted to consider her claims of fraud, deceit, and violation of the CPA only as they related to the request for a HAMP modification.

Bissell’s daughters testified that a Wells customer service rep instructed them on the phone in 10/11 to stop making payments so she would qualify for a HAMP modification, and that when the application was denied 1/6/12 she refused and/or was unable to cure the delinquency and reinstate. Bissell argued that she was only delinquent because Wells had instructed her daughters to withhold payments, and should not be responsible for the late fees or foreclosure-related fees. Wells presented evidence that Bissell and/or her daughters were informed of the accruing late fees and the increasing delinquency during the HAMP review period, and were aware of the need to cure to avoid foreclosure. Her daughter testified that she understood that there was no guarantee she would receive a HAMP modification, and was aware of the need to reinstate the loan to avoid foreclosure if she did not received a modification.

Bissell has moved for a new trial on the basis that Sherlock violated his own sanctions order by directing verdict for Wells on statute of limitations grounds. Wells opposes the motion on grounds that Sherlock’s order expressly permits that the issues raised by it on summary judgment could be handled by motions at trial, and that it could advance the same arguments at trial that were raised on summary judgment.

No experts, no demand/offer, no jury request/suggestion, no mediator.

Jury deliberated 1-3/4 hours 1st day.

Bissell v. Wells Fargo Bank, L&C BDV 12-412, 1/31/14.

John Heenan (Bishop & Heenan), Billings, and David Wilson (Morrison Sherwood Wilson & Deola), Helena, for Bissell; Kenneth Lay (Crowley Fleck), Helena, and Danielle Coffman (Crowley Fleck), Kalispell, for Wells.