Real Property – Unfair and Deceptive Trade Practices – Foreclosure

Wells Fargo Bank did not fraudulently conceal its intent or unfairly exercise its right to foreclose.

We affirmed.

In 2021, Plaintiffs purchased a lakefront home. In 2003, Plaintiffs refinanced the Property through Wachovia Bank. In the refinancing transaction, Plaintiffs provided Wachovia with a promissory note denoting its obligations to Wachovia. Plaintiffs also granted Wachovia a lien against the Property, which was duly recorded (the Deed of Trust). In 2008, Defendant Wells Fargo Bank acquired Wachovia via merger and assumed control over Plaintiffs’ obligations to Wachovia. In 2009, Plaintiffs began to experience financial difficulties and struggled to maintain their payment obligations for the Property. In 2011, Plaintiffs applied for a loan modification and Defendant modified their loan. After the 2011 modification, however, Plaintiffs submitted four additional modification applications. Defendant denied all four applications. After Plaintiffs defaulted, Defendant sought to foreclose under the terms of the Deed of Trust.

Plaintiffs ultimately filed a complaint against Defendant for unfair and deceptive trade practices, alleging that Defendant made a false representation when it “advised the [P]laintiffs that upon the submission of ‘the required documentation,’ the foreclosure sale would not be conducted while the documents were being reviewed.” Further, “[P]laintiffs’ expressed intention and desire to cure the default and maintain possession and ownership of their [Property]” but Defendant proceeded with the foreclosure sale.

In granting Defendant’s motion for summary judgment, the trial court held Defendant did not commit an unfair or deceptive act when it failed to cancel the foreclosure sale because Plaintiffs “did not provide the required gift letter.” The court further held that neither of two emails constituted a “gift letter.” Finally, the court held Plaintiffs had no right to reinstate their mortgage through the Deed of Trust, and even assuming they did, Defendants did not commit an unfair or deceptive act by refusing to reinstate Plaintiffs’ mortgage during the upset bid period pursuant to the Deed of Trust.

On appeal, Plaintiffs argued the court erred in granting summary judgment in favor of Defendant because: (1) Defendant acted unfairly and deceptively when it sold the Property at foreclosure despite representations to the contrary; (2) Defendant unfairly and deceptively deprived Plaintiffs of their right to reinstate the mortgage; and (3) the interpretation of Plaintiffs’ gift letter raises a genuine issue of material fact. We disagreed.

Defendant did not fraudulently conceal its intent or unfairly exercise its right to foreclose. Plaintiffs admitted they received formal notice of the January 2016 foreclosure sale in December 2015. After Plaintiffs defaulted, Defendant attempted to work with Plaintiffs to address their outstanding obligations and forestall the foreclosure sale, despite being under no legal or contractual obligation to do so. Plaintiffs’ eleventh-hour attempts through counsel—the day before and under an hour before the sale—to ostensibly comply with Defendant’s accommodation criteria do not create a genuine issue of material fact as to whether Defendant acted unfairly or deceptively by failing to postpone the sale. Plaintiffs failed to forecast evidence that rises to the level of substantial aggravating circumstances.

Affirmed.

Roach v. Wells Fargo Bank, National Association (Lawyers’ Weekly No. 011-293-25, 14 pp.) (Jeff Carpenter, J.) Appealed from Wake County Superior Court (Vinston M. Rozier, Jr., J.) Davis Hartman & Wright, LLP, by R. Daniel Gibson, for Plaintiffs-Appellants. Womble Bond Dickinson (US) LLP, by B. Chad Ewing, for Defendant-Appellee. North Carolina Court of Appeals