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Comer v. Wells Fargo Bank, N.A.

Court of Appeals of Columbia District

January 29, 2015

DENNIS T. COMER, APPELLANT,
v.
WELLS FARGO BANK, N.A., APPELLEE

Argued: June 6, 2014.

Page 365

[Copyrighted Material Omitted]

Page 366

Appeal from the Superior Court of the District of Columbia. (CAR-4452-11). (Hon. Michael L. Rankin, Trial Judge).

Johnnie D. Bond, Jr. was on the brief, for appellant.

Mary C. Zinsner, Billy B. Ruhling, II, and S. Mohsin Reza were on the brief, for appellee.

Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and KING, Senior Judge. OPINION by Associate Judge BLACKBURNE-RIGSBY. FISHER, Associate Judge, concurring in part and dissenting in part.

OPINION

Page 367

Blackburne-Rigsby, Associate Judge.

Appellant Dennis T. Comer appeals the trial court's omnibus order partially granting appellee Wells Fargo Bank's (" Wells Fargo" ) motion to dismiss several of appellant's claims raised in an amended complaint under S.Ct. Civ. R. 12 (b)(6) for failure to state a claim. On appeal, appellant argues that the trial court erred by dismissing his District of Columbia Consumer Protection Procedures Act (" CPPA" ), negligent misrepresentation, and Fair Housing Act (" FHA" ) claims as time-barred because these amended claims " relate back" to the original timely complaint, given that they " arose out of the conduct, transaction, or occurrence" set forth therein. Appellant additionally contends that the trial court erred by dismissing his wrongful foreclosure claim on the basis that he suffered no harm or prejudice as the result of an alleged inaccuracy in the foreclosure notice provided to him by Wells Fargo.[1] We affirm the dismissal of the FHA and wrongful foreclosure counts, but reverse and remand for further proceedings on the CPPA and negligent misrepresentation claims.

I. Factual Background

Appellant sought funding from Wells Fargo in 2007-2008 to finance the purchase and renovation of a home located at 107 Rhode Island Avenue, Northwest, Washington, D.C. (" Property" ). Appellant applied and was approved for a 203(k) Rehabilitation Mortgage Insurance Loan under the National Housing Act, 12 U.S.C. § 1709 (2006), executing a loan agreement on June 11, 2008 that included approximately $337,000 for the purchase of the Property and $427,925 for renovations to the Property, with the latter amount held in escrow. During the application process, appellant worked with a Wells Fargo Renovation Loan Specialist named Jason Roche, whom Wells Fargo had assigned to work on appellant's loan application. Appellant's interactions with Mr. Roche and the services provided by him would form the basis for much of the ensuing protracted litigation. Appellant eventually defaulted on the loan, and Wells Fargo foreclosed on the Property on January 12, 2010.

A. The Original Complaint

On June 7, 2011, appellant filed his first complaint in the Superior Court of the District of Columbia (" original complaint" ).[2] The underlying facts of the original

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complaint outlined the United States Department of Housing and Urban Development's (" HUD" ) requirements for a 203(k) loan and detailed allegations of Wells Fargo's negligence and incompetence in its handling of appellant's loan, including violations of HUD requirements.[3] Specifically, appellant claimed that Wells Fargo violated HUD's requirement that lenders " strictly observe FHA underwriting guidelines when approving 203(k) loan applications." [4] According to appellant, Wells Fargo failed to " provide [him with] complete, detailed information about the requirements and complexity of [the loan]," advised him to take out a loan that was larger than necessary to purchase and renovate the Property, and manipulated his reported income to approve him for a higher loan amount. According to appellant, he relied solely" on Wells Fargo and its agent, Mr. Roche, " for clear advice about how to obtain a loan to purchase and renovate a property[,]" and that due to Wells Fargo's and Mr. Roche's misleading tactics and " blatant disregard to its duty" to properly advise appellant about the risks of taking on such a loan, appellant agreed to accept the loan he was issued. Appellant incorporated this factual basis by reference at the beginning of each of his seven alleged counts.[5]

As to the specific counts, appellant's original complaint alleged, inter alia, that Wells Fargo violated the CPPA and made negligent misrepresentations through its agent, Mr. Roche, regarding " material facts which had a tendency to mislead." With regard to the CPPA claim, appellant argued that Mr. Roche violated the Act by representing that appellant would not have to make any mortgage payments on the loan during the first six months while renovating the Property, yet appellant received a request for payment within forty-five days after closing. Appellant further alleged that Wells Fargo forged his signature on a Truth-In-Lending Disclosure form. This conduct, according to appellant, amounted to " unfair and deceptive trade practices" in violation of the CPPA. With regard to the negligent misrepresentation claim, appellant repeated many of the allegations raised in the CPPA claim, including that Mr. Roche made misrepresentations regarding mortgage payments and that appellant's signature had been forged on the Truth-In-Lending Disclosure form.

Appellant also alleged wrongful foreclosure for Wells Fargo's failure to provide the correct ...


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