Foley v. Wells Fargo Bank, N.A.
849 F. Supp. 2d 1345
S.D. Fla.2012Background
- Plaintiff Foley filed a TILA claim in state court, later removed to federal court.
- Plaintiff alleges Wells Fargo is creditor and Wells Fargo Home Mortgage, Inc. is servicer; note and mortgage allegedly transferred Oct. 7, 2010.
- Allegations include failure to provide 30-day notice of transfer under 15 U.S.C. § 1641(g) and entitlement to damages under § 1640(a).
- Wells Fargo moved to dismiss and for jury-trial-demand strike; motion briefed with responses and replies.
- Court considers assignment documents referenced in complaint and concludes the § 1641(g) claim may proceed; also addresses damages and jury trial waiver.
- Court grants in part and denies in part the motion: keeps § 1641(g) claims intact, denies damages dismissal, and grants strike of jury demand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1641(g) notice applies to the Oct. 7, 2010 transfer | Foley contends Wells Fargo became creditor via the Oct. 2010 transfer, triggering § 1641(g). | Wells Fargo argues the assignment only transferred MERS interest and may be pre-§ 1641(g) timing, not a debt transfer. | § 1641(g) claim survives (denied dismissal). |
| Whether § 1641(g) damages require actual damages or finance charges | TILA remedial statute allows statutory damages regardless of actual damages. | Plaintiff must plead actual damages or relate finance charges to statutory damages. | Damages claim survives; statutory damages available even without proof of actual damages. |
| Whether the jury trial demand should be struck under the mortgage waiver | Waiver clause does not apply to the TILA notice action because it does not arise from the note/mortgage. | Waiver covers actions related to the note/mortgage; the case is inextricably linked to those documents. | Jury trial demand struck; waiver applies to the instant action. |
Key Cases Cited
- Brown v. CitiMortgage, Inc., 817 F. Supp. 2d 1328 (S.D. Ala. 2011) (statutory damages available without proving actual damages under § 1640(a))
- Turner v. Beneficial Corp., 242 F.3d 1023 (11th Cir. 2001) (statutory damages provide remedies for TILA violations)
- In re Whitley, 772 F.2d 815 (11th Cir. 1985) (statutory penalties for disclosure violations regardless of damages)
- Mourning v. Family Publications Service, Inc., 411 U.S. 356 (Supreme Court 1973) (minimum sanction permissible for disclosure violations when finance charge is undetermined)
- Ellis v. General Motors Acceptance Corp., 160 F.3d 703 (11th Cir. 1998) (remedial purpose of TILA supports liberal construction of disclosures)
- Ashcroft v. Iqbal, 556 U.S. 662 (Supreme Court 2009) (only well-pleaded factual allegations are assumed true)