Fraudulent Flim Flam: Wells Fargo’s Modifications are Self-Contradictory and Make No Sense “Wells Fargo Drafted this document, and Wells Fargo must be held responsible for it”


Corvello v Wells Fargo Bank NA (full text of 8 August 2013 Opinion from 9th Circuit, in re: California Foreclosure, attached in word.doc)
CONCLUSIONS
*7 The district court’s judgment granting Wells Fargo’s motion to dismiss is REVERSED and REMANDED.
NOONAN, Circuit Judge, concurring:
Read as a whole the TPP between Corvello and Wells Fargo makes no sense. It is self-contradictory. Page one promised Corvello in two places that if his representations were accurate and if he were in compliance with the Trial Period Plan, the Lender “would provide” him “with a Loan Modification Agreement.” Paragraph 2G stated: “the Loan Documents will not be modified unless and until (i) I meet all of the conditions required for modification; (ii) I receive a fully executed copy of a Modification Agreement and (iii) the Modification Effective Date has passed.”
Wells Fargo drafted this document, and Wells Fargo must be held responsible for it. The document promises a substantial benefit to Corvello if he meets its terms. The document then makes these benefits illusory because they depend entirely on the will of WellsFargo. To say, “I give $100 for your watch but I will decide whether I pay you $100” izs not to make a contract but to engage in a flim-flam or, in plain words, to work a fraud. You promise so that the other will perform. You reserve your promise so that the promise is empty while you have gotten what you wanted from the promisee.
No purpose was served by the document Wells Fargo prepared except the fraudulent purpose of inducing Corvello to make the payments while the bank retained the option of modifying the loan or stiffing him. “Heads I win, tails you lose” is a fraudulent coin toss. Wells Fargo did no better.
According to the Lucias’ complaint, their dealings with Wells Fargo were oral. Ms. Lucia “was interviewed by phone and pre-approved for the [HAMP loan] modification.” She was informed that if she and her husband “sent in all the required documents and made all their payments on time, their reduced monthly payment would become permanent.” The Lucias allege that they made their “trial period plan payments as scheduled.” The bank foreclosed. These allegations are sufficient to make the Lucias’ position analogous to Corvello’s.
Confined as we are to the pleadings before us, I concur in the judgment of the court.
End of Document © 2013 Thomson Reuters. No claim to original U.S. Government Works.

It is always refreshing and surprising, even astounding, when Federal Judges speak plainly and call a spade a spade.  Of course, some of the Judges of the Ninth Circuit Court of Appeals have a reputation for straight speaking: Alex Kozinski, Stephen Reinhardt, Harry Pregerson, and John T. Noonan, Jr.

Of course the SOBRE and solemn side of me wants to add that the real problem, the root of all evil, is securitization, and until Congress or some court somewhere addresses securitization head on, the perversion of the American Constitution through the destruction of private property will continue.  But in the meantime—I have read through dozens of these modifications and they are all the same meaningless gobbledygook.   In re the frank and direct concurrence:  BRAVO JUDGE JOHN T. NOONAN, JR.!

JUDGES OF THE NINTH CIRCUIT 

  Name Initials Status Chambers Appt. Date Appointed By
1. Alex Kozinski AK Chief Judge Pasadena 11/07/85 Reagan
2. Alfred T. Goodwin ATG Senior Circuit Judge Pasadena 11/30/71 Nixon
3. J. Clifford Wallace JCW Senior Circuit Judge San Diego 06/28/72 Nixon
4. Procter Hug, Jr. PRH Senior Circuit Judge Reno 09/15/77 Carter
5. Mary M. Schroeder MMS Senior Circuit Judge Phoenix 09/26/79 Carter
6. Jerome Farris JF Senior Circuit Judge Seattle 09/27/79 Carter
7. Harry Pregerson HP Circuit Judge Woodland Hills 11/02/79 Carter
8. Arthur L. Alarcon ALA Senior Circuit Judge Los Angeles 11/02/79 Carter
9. Dorothy W. Nelson DWN Senior Circuit Judge Pasadena 12/20/79 Carter
10. William C. Canby, Jr. WCC Senior Circuit Judge Phoenix 05/23/80 Carter
11. Stephen Reinhardt SR Circuit Judge Los Angeles 09/11/80 Carter
  Name Initials Status Chambers Appt. Date Appointed By
12. John T. Noonan, Jr. JTN Senior Circuit Judge San Francisco 12/17/85 Reagan
13. Diarmuid F. O’Scannlain DFO Circuit Judge Portland 09/26/86 Reagan
14. Edward Leavy EL Senior Circuit Judge Portland 03/23/87 Reagan
15. Stephen S. Trott SST Senior Circuit Judge Boise 03/25/88 Reagan
16. Ferdinand F. Fernandez FFF Senior Circuit Judge Pasadena 05/22/89 Bush
17. Andrew J. Kleinfeld AJK Senior Circuit Judge Fairbanks 09/16/91 Bush
18. Michael Daly Hawkins MDH Senior Circuit Judge Phoenix 09/15/94 Clinton
19. A. Wallace Tashima AWT Senior Circuit Judge Pasadena 01/04/96 Clinton
20. Sidney R. Thomas SRT Circuit Judge Billings 01/04/96 Clinton
21. Barry G. Silverman BGS Circuit Judge Phoenix 02/04/98 Clinton
22. Susan P. Graber SPG Circuit Judge Portland 03/19/98 Clinton
  Name Initials Status Chambers Appt. Date Appointed By
23. M. Margaret McKeown MMM Circuit Judge San Diego 04/08/98 Clinton
24. Kim McLane Wardlaw KMW Circuit Judge Pasadena 08/03/98 Clinton
25. William A. Fletcher WAF Circuit Judge San Francisco 10/09/98 Clinton
26. Raymond C. Fisher RCF Senior Circuit Judge Pasadena 10/12/99 Clinton
27. Ronald M. Gould RMG Circuit Judge Seattle 11/22/99 Clinton
28. Richard A. Paez RAP Circuit Judge Pasadena 03/14/00 Clinton
29. Marsha S. Berzon MSB Circuit Judge San Francisco 03/16/00 Clinton
30. Richard C. Tallman RCT Circuit Judge Seattle 05/25/00 Clinton
31. Johnnie B. Rawlinson JBR Circuit Judge Las Vegas 07/26/00 Clinton
32. Richard R. Clifton RRC Circuit Judge Honolulu 07/30/02 Bush
33. Jay S. Bybee JSB Circuit Judge Las Vegas 03/21/03 Bush
34. Consuelo M. Callahan CMC Circuit Judge Sacramento 05/28/03 Bush
35. Carlos T. Bea CTB Circuit Judge San Francisco 10/01/03 Bush
36. Milan D. Smith, Jr. MDS Circuit Judge El Segundo 05/18/06 Bush
37. Sandra S. Ikuta SSI Circuit Judge Pasadena 06/23/06 Bush
38. N. Randy Smith NRS Circuit Judge Pocatello 03/19/07 Bush
39. Mary H. Murguia MHM Circuit Judge Phoenix 01/04/11 Obama
40. Morgan Christen MBC Circuit Judge Anchorage 01/11/12 Obama
41. Jacqueline H. Nguyen JHN Circuit Judge Pasadena 05/14/12 Obama
42. Paul J. Watford PJW Circuit Judge Pasadena 05/22/12 Obama
43. Andrew D. Hurwitz ADH Circuit Judge Phoenix 06/27/12 Obama

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