When Can Foreclosing Lenders Be Accused Of Acting In Bad Faith?

 by:    Peter J. Gallagher

In a recent decision, the Chancery Division denied a lender’s motion to strike a borrower’s contesting answer in a foreclosure lawsuit, holding that the borrower had adequately pled a claim that the lender acted in bad faith.  While this decision is unique based on the facts of the underlying dispute, it does, by contrast, serve as a reminder that lenders generally cannot be held to have acted in bad faith when they simply attempt to enforce the terms of loan documents as written. 

In Wells Fargo Bank, N.A. v. Schultz, plaintiff obtained a mortgage from World Savings Bank (which later changed its name to Wachovia Mortgage, FSM, which was later acquired by and merged into Wells Fargo) under a “Pick-a-Payment” mortgage program.  Several years later, this program became the subject of a class action lawsuit, the settlement of which provided that Wells Fargo both pay class members, including defendant Schultz, a small sum and also make loan modifications available to them.  It is the second of these requirements that ended up getting Wells Fargo in trouble.  Defendant presented evidence to the court that led Judge Doyne to conclude that she was “getting the run around” from Wells Fargo, including by being told that she failed to submit documents that she certified that she had submitted, and when Wells Fargo eventually confirmed that she had submitted the documents, telling her that the modification program was no longer available.  Judge Doyne observed that defendant may not have a right to be approved for a specific modification, but that once Wells Fargo made one available to her, it was obligated to “act in good faith as to the provision of the modification.”  To be clear, Judge Doyne did not rule that Wells Fargo had acted with bad faith; instead, he simply ruled that defendant had pled enough in connection with her claims related to the modification that her answer could not be stricken. 

While this case presents a situation where a lender is alleged to have acted in bad faith after agreeing to entertain an application for a loan modification, the law in New Jersey is well settled that a lender cannot generally be deemed to have acted in bad faith when it seeks to enforce the terms of a note or mortgage as written.  Stated differently, lenders cannot be barred from enforcing loan and mortgage documents merely because they seek to enforce their express contractual rights.  Indeed, “a creditor's duty to act in good faith does not extend to foregoing its right to accelerate upon default or otherwise compromising its contractual rights in order to aid its debtor.” Glenfed Financial Corp. v. Penick Corp.   For instance, in Creeger Brick & Building Supply, Inc. v. Mid-State Bank & Trust Co., — a decision cited by the Appellate Division with approval in Glenfed — a Pennsylvania appeals court held:

. . . a lending institution does not violate a separate duty of good faith by adhering to its agreement with the borrower or by enforcing its legal and contractual rights as a creditor. The duty of good faith imposed upon contracting parties does not compel a lender to surrender rights which it has been given by statute or by the terms of its contract. Similarly, it cannot be said that a lender has violated a duty of good faith merely because it has negotiated terms of a loan which are favorable to itself. As such, a lender generally is not liable for harm caused to a borrower by refusing to advance additional funds, release collateral, or assist in obtaining additional loans from third persons. A lending institution also is not required to delay attempts to recover from a guarantor after the principal debtor has defaulted.

In other words, if the defendant in Schultz was accusing Wells Fargo of bad faith simply because the lender was seeking to enforce its rights under the plain language of the relevant note and mortgage, the result would likely have been different. 

More Foreclosure Fallout: Class Action Suit Claims CitiMortgage Misled Loan Modification Applicants

by:  Michael L. Rich

The fallout continues in the residential mortgage industry.  The New Jersey Law Journal reported last week that a putative class action on behalf of loan modification applicants alleges that CitiMortgage, the mortgage unit of CitiGroup, reneged on its agreement to do loan modifications in return for receiving $45 billion in bailout money.  Recipients of Troubled Asset Relief Program funds were required to participate in efforts to reduce foreclosures, including the loan-modification program.  However, the plaintiffs in Silva v. CitiMortgage claim that CitiMortgage has only feigned compliance with the government’s loan-modification program, known as Home Affordable Modification Program.  The complaint alleges that CitiMortgage “never had any intention to allow widespread modification for homeowners in need.”   CitiMortgage is expected to mount a vigorous defense.  More details on this later as the case proceeds.

New Suits Allege Real Estate Brokers Imposed Illegal Duplicative Charges

by:  Michael L. Rich

The New Jersey Law Journal reports the filing of three putative class actions on March 16, 2011 alleging that real estate brokers defraud buyers and sellers by charging administrative fees for services covered by commissions.   Specifically, the suits allege that Weichert Realtors and Prudential Real Estate Affiliates impose administrative fees of $200 to $275 on real estate transactions, notwithstanding the U.S. Department of Housing and Urban Development declaring last year such fees illegal.  One suit filed in U.S. District Court in Camden, New Jersey alleges violations of the Real Estate Settlement Procedures Act.  The two suits filed in Burlington County Superior Court claim violations of the state’s Consumer Fraud Act and the Truth in Consumer Contract, Warranty and Notice Act.  More details to follow.