Jacks v. Wells Fargo Bank, N.A. (In Re Jacks)

642 F.3d 1323, 2011 WL 2183979
CourtCourt of Appeals for the Eleventh Circuit
DecidedJune 7, 2011
Docket09-16146
StatusPublished
Cited by11 cases

This text of 642 F.3d 1323 (Jacks v. Wells Fargo Bank, N.A. (In Re Jacks)) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jacks v. Wells Fargo Bank, N.A. (In Re Jacks), 642 F.3d 1323, 2011 WL 2183979 (11th Cir. 2011).

Opinion

BLACK, Circuit Judge:

Plaintiff-Appellants Terry and Sandra Jacks filed this purported class action as an adversary proceeding before the bankruptcy court. Their amended complaint alleged their mortgage lender, Wells Fargo Bank, N.A., violated various provisions of the Bankruptcy Code and Bankruptcy Rules by failing to disclose certain fees on the proof of claim it filed in the Jacks’ Chapter 13 bankruptcy ease. Prior to considering class certification, the bankruptcy court chose to address the merits of the Jacks’ individual claims. Following a hearing in which it made findings of fact and conclusions of law, the bankruptcy court granted summary judgment in favor of Wells Fargo on all counts. The Jacks appealed this decision to the district court, which affirmed the bankruptcy court’s decision.

We affirm the grant of summary judgment in Wells Fargo’s favor as to all claims except those based on actions that Wells Fargo may take after the Jacks’ bankruptcy case is dismissed or discharged. We determine to the extent the Jacks’ claims are based on events that may take place later, they are not ripe, and we dismiss them.

I. BACKGROUND

In November 2004, Terry and Sandra Jacks obtained a home mortgage from Washington Mutual Bank. In March 2007, the mortgage was assigned to Wells Fargo. Later that year, on August 8, 2007, the Jacks filed a voluntary petition for Chapter 13 bankruptcy in the U.S. Bankruptcy Court for the Northern District of Alabama. The petition disclosed that Wells Fargo held a secured claim as a mortgage on the Jacks’ home.

On September 6, 2007, Wells Fargo filed a proof of claim asserting a secured claim of $162,205.57. Exhibit A to the proof of claim was an “Itemization of Claim and Summary of Supporting Documents.” This exhibit listed the Jacks’ total debt of $162,205.57. 1 It did not list any pre-petition attorney fees or costs, but stated at the end of the itemization section:

Please be advised that reasonable fees and costs for the review of the bankruptcy pleadings, review of client information, preparation and filing of the Proof of Claim will be charged to the lender/servicer for post-petition services rendered subsequent to the filing of this bankruptcy matter. Further, note that future fees and costs for bankruptcy related services are expected to accrue throughout the life of this bankruptcy case, and will be charged to the lender/servicer. If such fees and costs or charges are not paid through the bankruptcy, the lender reserves the right, at the lender’s discretion, to seek future reimbursement for the fees, costs and charges related to services rendered and *1327 expenses incurred pursuant to the terms provided for in the underlying security instrument, the bankruptcy code and other applicable law.

After the proof of claim was filed, Wells Fargo’s outside law firm submitted to Wells Fargo an invoice documenting $310 in fees and expenses associated with preparing and filing the proof of claim in the Jacks’ case.

On October 17, 2007, the Jacks filed an Amended Chapter 13 Plan. The plan called for the Jacks to continue to make their regular monthly payment directly to Wells Fargo. It did not list any arrearage to be paid by the trustee. The plan also noted, “Debtors also may have a potential lawsuit against Wells Fargo Home Mortgage for violations of the automatic stay, § 506 and Rule 2016 for assessing post-petition fees and costs which were undisclosed on the proof of claim and/or may have a potential declaratory judgment action regarding language used in the proof of claim as being unnecessary or deceptive. The Debtors hereby wish to preserve said causes of action in their bankruptcy case.” The bankruptcy judge entered a confirmation order on December 28, 2007.

On July 29, 2008, the Jacks filed a complaint against Wells Fargo in the U.S. Bankruptcy Court for the Northern District of Alabama. The Jacks, claiming to act on behalf of themselves and a class of similarly situated mortgagors, alleged Wells Fargo violated several provisions of the Bankruptcy Code and failed to comply with the Federal Rules of Bankruptcy Procedure by improperly “charging], assessing], imposing] and/or collecting] impermissible fees” on the plaintiffs’ and similarly situated mortgagors’ accounts. In the Jacks’ case, they alleged Wells Fargo had “charged or assessed” $310 in bankruptcy-related fees to the Jacks’ account without disclosing these fees in the proof of claim or seeking approval from the bankruptcy court. The complaint further alleged Wells Fargo was “attempting to collect this amount or will collect this amount during the pendency of the case, once the Debtors have received their discharge, or once they are dismissed from the case, whichever occurs first.”

The $310 in fees had been recorded on the Jacks’ “Customer Account Activity Statement” as two charges in the amount of $150 each and one charge for $10 posted on October 25, 2007. A litigation representative for Wells Fargo explained in her deposition testimony that the Customer Account Activity Statement tracks payments and disbursements related to the servicing of a loan, including bankruptcy-related fees and expenses. It may include fees paid by Wells Fargo that are provisionally assessed to the loan for bookkeeping purposes. In this case, the fees were attorney’s fees and other costs paid by Wells Fargo to its attorneys to review the Jacks’ bankruptcy plan and to prepare Wells Fargo’s proof of claim.

The record reflects that the Jacks became aware of the proof of claim fees when the Customer Account Activity Statement was sent to Sandra Jacks after she called Wells Fargo to request the activity history on her account. The Customer Account Activity Statement is the only document in evidence that lists the $310 in fees. Sandra Jacks stated in her deposition she had never been billed for or asked to pay the charges or told she would be expected to pay them. Similarly, Terry Jacks testified Wells Fargo had never done anything to attempt to collect these fees. Wells Fargo continued to send statements for the regular monthly payment due under the mortgage and did not add any additional charges to these statements.

The bankruptcy court addressed the merits of the Jacks’ claim prior to consid *1328 ering class certification and entered summary judgment for Wells Fargo on all counts. The district court affirmed. 2

II. DISCUSSION

The Jacks contend on appeal the district court erred in affirming the bankruptcy court’s grant of summary judgment on: (1) their claims that Wells Fargo violated the automatic stay provisions in 11 U.S.C. § 362; (2) their claims that Wells Fargo violated 11 U.S.C. § 506(b) and Bankruptcy Rule 2016 by failing to disclose the fees; and (3) their objection to the proof of claim. “As the second court of review of a bankruptcy court’s judgment, this court examines independently the bankruptcy court’s ...

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Bluebook (online)
642 F.3d 1323, 2011 WL 2183979, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jacks-v-wells-fargo-bank-na-in-re-jacks-ca11-2011.