Parker v. Wells Fargo Home Mortgage

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
JOYCE ANN PARKER,
Debtor.
___________________________
JOYCE ANN PARKER,
Plaintiff,
v.
WELLS FARGO HOME MORTGAGE,
INC.,
Defendant.
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Case No. 	05-01021
(Chapter 13)
Adversary Proceeding
No. 06-10038
Not for Publication in
West’s Bankruptcy Reporter
MEMORANDUM DECISION
RE PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
On April 27, 2006, the plaintiff Parker commenced this
adversary proceeding against Wells Fargo Home Mortgage, Inc.
(“Wells Fargo”), which held a claim secured by a mortgage (in the
form of a deed of trust) against her home. 	Among other claims,
Parker sought a determination that Wells Fargo was owed less than
it was claiming to be owed because it had in the past imposed
improper mortgage charges against her. 	On November 28, 2006,
The decision below is signed as a decision of
the court.
Signed: May 21, 2007.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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Parker sold her home. 	Parker filed an amended complaint
(“Complaint” or “Compl.”) on January 18, 2007, alleging that when
she sold her home she paid off the amount that Wells Fargo
claimed to be owed, and renewing her allegation that Wells Fargo
had claimed more than it was actually owed. 	Wells Fargo has
filed a motion to dismiss the Complaint on the basis of Federal
Rule of Civil Procedure 12(b)(6) and in the alternative seeking
summary judgment. 	In her opposition to the motion to dismiss,
Parker has cross-moved for partial summary judgment.
Wells Fargo correctly notes that Parker improperly included
her motion for partial summary judgment as part of her opposition
to Wells Fargo’s motion to dismiss. 	In addition, Parker has
attached to her motion various papers which she has not
authenticated. 	Finally, Local Bankruptcy Rule 7056-1 provides
that “[e]ach motion for summary judgment shall be accompanied by
a statement of material facts as to which there is no genuine
issue, which shall include references to the parts of the record
relied on to support the statement.” 	Although Parker has
included a “Statement of Genuine Issues, Undisputed Facts and
Omissions” in an apparent attempt to comply with LBR 7056-1, only
some of the stated facts are supported with citations to the
record as supporting the stated facts.
In order for the court to proceed to address Parker’s motion
for summary judgment in an orderly fashion, Parker ought to have
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1 	The basic alleged facts underlying Parker’s complaint are
these. 	Wells Fargo made a payment of an erroneous tax charge by
the District of Columbia in 2002 and as a result increased the
escrow payments Parker had to include in her monthly mortgage
payments. 	By March 2003, Wells Fargo was aware that the tax
charge had been in error and sought a refund from the District.
Nevertheless, Wells Fargo referred her account to attorneys to
institute foreclosure proceedings on June 21, 2003. 	On July 2,
2003, Wells Fargo received a refund of an erroneous tax payment
that had been made to the District of Columbia. 	Nevertheless, on
August 25, 2003, Wells Fargo instituted foreclosure proceedings
in which it overstated the amount necessary to cure the mortgage
arrears by including the erroneous tax payment to the District as
part of the amount that had to be cured. 	When Parker sought to
enjoin the foreclosure sale, Wells Fargo sought to collect
attorney’s fees incurred in the injunction litigation. 	Wells
Fargo later wrongfully asserted that $29,599.10, consisting of
“corporate charges” (presumably meaning attorney’s fees resulting
from foreclosure efforts) was in arrears as part of the pay-off
Parker was forced to pay when she sold her home in November 2006.
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complied with LBR 7056-1. 	Although many of the basic alleged
facts pled by Parker in this adversary proceeding may not be
disputed by Wells Fargo, 1 Parker’s failure to proceed in the
manner required by LBR 7056-1 has hampered the court’s efforts to
assay which ones are undisputed, and thus to assay whether
partial summary judgment would be appropriate. 	Wells Fargo’s
responses to Parker’s requests for admission have made clear that
it does not agree with some of Parker’s allegations. 	And until
the court is able to ascertain what facts are not in dispute, it
cannot turn to the legal issues.
One factual issue is whether Parker failed to keep current
on her mortgage (assuming the erroneous tax payment were set
aside and required payments were calculated on that basis). 	If
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4	O:\Laura\OPINIONS\Parker v Wells Fargo\Order - Parker v Wells Fargo - MTD Mem Decsn- Parker's MFSJ.wpd
she did not, a legal issue arises whether, until she paid the
amount justly owed, Wells Fargo was entitled to proceed with
foreclosure.
In addition, I cannot tell what the actual amount of
mortgage payments required would have been had the payments made
been applied as though no payment of the erroneous D.C. tax bill
had occurred.
Finally, the plaintiff’s cross-motion for partial summary
judgment neglects to discuss in any detail the application to the
facts of her different theories of damages (the breach of
contract, RESPA, and DCCPPA theories discussed in the decision
regarding Wells Fargo’s motion to dismiss).
For all of these reasons, the cross-motion for partial
summary judgment will be denied. 	An order follows.
[Signed and dated above.]
Copies to: 	All counsel of record.
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