Date: 10-11-2024

Case Style:

Brian Daniel v. Wells Fargo Bank, N.A.

Case Number: 3:24-CV-664

Judge: Joseph F. Anderson, Jr.

Court: United States District Court for the District of South Carolina (Richland County)

Plaintiff's Attorney:

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Defendant's Attorney: Jason DAvid Wyman

Description:

Columbia, South Carolina Electonic Fund Transfer Act violation consumer law lawyer represented the Plaintiff.

In the spring of 2007, Plaintiffs Paul Daniel and Margie Daniel refinanced their home located at 7821 Killdeer Way, Elk Grove, California, and entered into an Option Adjustable Rate Mortgage ("ARM") with World Savings Bank, which later became Wells Fargo Bank, N.A. ("Wells Fargo"). (FAC, ECF No. 1, at 7, Ex. A.)

In 2008, Plaintiffs again refinanced the property into an ARM with Wells Fargo.

Plaintiffs' FAC does not indicate what exactly happened following the refinancing, but Defendants state that Plaintiffs' original complaint was filed in state court in April of 2010 (although Defendants state they were not served with the FAC until September of 2011). (MTD, ECF No. 5 at 10; Notice of Removal and FAC, ECF No. 1.) In addition, Defendants state that Plaintiffs filed a petition for Chapter 7 bankruptcy in December 2010, and that this petition was discharged on May 17, 2011. (ECF No. 5 at 9, ECF No. 7, Exs. I and J (Voluntary Petition and Discharge of Debtor).) Defendants removed to this Court on October 7, 2011, on the basis of federal question jurisdiction.

Plaintiffs generally allege that the Option ARM is a deceptively devised financial product, which had higher interest rates than promised, and which was designed to, and did in fact, cause negative amortization of their loan to occur. (FAC at 8-9.) Plaintiffs raise five claims for relief: (1) violations of the Truth in Lending Act, 15 U.S.C., §§ 1601, et seq. ("TILA"); (2) fraudulent omissions; (3) violation of California's Unfair Competition Law, Business and Profession Code §§ 17200, et seq. ("UCL"); (4) breach of contract; and (5) breach of the implied covenant of good faith and fair dealing.

Negative amortization refers to the situation where a loan payment for a particular period is less than the interest charged for that period, so the balance owed on the loan increases over time.

On October 14, 2011, Defendants filed their MTD. (ECF No. 5.) Defendants' move to dismiss, under Fed. R. Civ. P. 12(b)(6), on the basis that Plaintiffs': (1) claims are barred by judicial estoppel; (2) state law claims against Wachovia are barred by the Home Owner's Loan Act, 12 U.S.C. §§ 1461, et seq. ("HOLA"); (3) TILA claims are time-barred and Plaintiffs never tendered their indebtedness; (4) fraudulent omission claim fails to satisfy the elements for such a claim; (5) have failed to state a claim for unfair business practices under the UCL; (6) failed to allege a breach of the note or deed of trust; and (7) failed to state a claim for breach of the implied covenant of good faith and fair dealing. In addition, Plaintiffs filed a Motion to Strike portions of Plaintiffs' FAC. (ECF No. 6.)

All further references to "Rule" or "Rules" are to the Federal Rules of Civil Procedure unless otherwise noted.

On December 10 and 16, 2011, Plaintiff Paul Daniel filed a request, which the Court interprets as a Motion to Remand (see ECF Nos. 9 and 10), generally asking the Court to send the case back to state court due to Mr. Daniel's deteriorating health. While the Court is sympathetic to Mr. Daniel's health issues, they are not a basis for remand, and Defendants properly removed this case on the basis of federal question jurisdiction. Therefore, the motion is denied.

On March 28, 2012, Plaintiffs filed their Motion seeking leave to untimely file their Opposition, which attached their proposed Opposition. (ECF No. 13.) The motion to permit untimely filing of the Opposition is unopposed and will be granted due to the fact that Plaintiffs' prior attorney has been indicted and Plaintiffs have only recently obtained new counsel. (See ECF No. 13, Exs. A-D.)

Thereafter, Plaintiffs filed their Motion for TRO/PI and Motion for Expedited Hearing. (ECF Nos. 20-25.) Plaintiffs contend that a TRO/PI is necessary to prevent Defendants from evicting them and because there is an unlawful detainer action proceeding in Sacramento Superior Court.

Outcome: 10/11/2024 16 NOTICE of Settlement and Request to Enter Rubin Order as to Wells Fargo Bank, NA by Brian Daniel (Maxfield, Dave) (Entered: 10/11/2024)
10/11/2024 17 ORDER DISMISSING CASE without costs and without prejudice to the right of either party, upon good cause shown within sixty (60) days, to reinstate the action if settlement is not consummated. Signed by Honorable Joseph F Anderson, Jr on 10/11/2024. (jpet, ) (Entered: 10/11/2024)

Plaintiff's Experts:

Defendant's Experts:

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