Wells Fargo

Plaintiff TD Bank sued borrower Mirabella on a Promissory Note on which Mirabella defaulted. The Note was between Mirabella and First Carolina Bank as lender, not TD Bank. TD Bank got summary judgment on the amount owed. On appeal the borrower claimed that TD Bank failed to show that it was the owner and holder of the Note.

The Court of Appeals found that there was insufficient evidence that TD Bank was the holder of the Note, and therefore summary judgment was improper. TD Bank claimed that it stood in the place of First Carolina Bank due to a merger between the two banks. The COA noted that neither the complaint nor any other documents in the record provided any evidence of the merger. TD Bank’s inclusion of the merger documents as an appendix to its appellate brief was not a proper method of presenting evidence of the merger to the Court, especially since the borrower contested the validity of the documents. The COA noted that TD Bank could have filed the documents or an affidavit with the trial court.

The COA also found that it could not take judicial notice of the merger between Carolina First Bank and TD Bank because it did not fall within the realm of acommon and general knowledge.a The COA noted that this merger could not be analogized to that of Wachovia and Wells Fargo (which has been judicially noticed by at least one federal court) because TD Bank and First Carolina Bank “are not quite so well-known as Wells Fargo and Wachovia as this panel has never heard of TD Bank or First Carolina Bank, much less of their merger[.]“

In the Court of Appeals case, Plaintiff Dobson executed a promissory note in favor of Equivantage which provided that Dobson would be in default under the note if she failed to make monthly loan payments. Dobson also executed a deed of trust on her property to secure the note. Equivantage assigned the note and deed of trust to Defendant Wells Fargo. Dobson defaulted, and Wells Fargo bean foreclosure proceedings.

Dobson filed suit against Wells Fargo and other defendants, seeking an injunction to stop foreclosure. Wells presented two affidavits from its employees and a copy of the note and the assignment of the note to show that it was the note holder and had a right to foreclose. Dobson claimed that Wells had not proven that it was the holder of the note because it failed to produce the original note. The trial court granted Dobson’s motion for summary judgment by enjoining defendants from foreclosing on Dobson’s property until Wells could establish that it was the holder of the note.

The Supreme Court affirmed the COA’s reversal of the trial court’s ruling. The COA noted that Dobson presented no evidence to dispute that Wells was the note holder. Dobson’s assertion that she could not confirm that the copy of the note presented by Wells was a true and correct copy of the original was “insufficient to cast doubt on Defendants’ evidence that Wells Fargo is the holder of the note and does not serve as evidence that the copies are not exact reproductions.” The COA qualified this holding by noting that it “should be viewed in the context of summary judgment,” and the trial court could ultimately conclude that Defendants’ evidence regarding Wells’ status as holder of the note was unconvincing at some point after the summary judgment stage.

Defendant APS performed a demonstration of the printer for Plaintiff Moore Printing and submitted a proposal for the lease and maintenance of the printer. Moore did not end up leasing the printer from APS, even though Moore’s president signed the proposed lease that APS presented to Moore. Moore unltimately executed a different lease with Wells Fargo Financial Leasing, under which Wells Fargo would lease the printer to Moore and Network Data Systems would be the supplier of the printer. APS was not mentioned in the Wells Fargo lease agreement, and Moore entered into a separate maintenance agreement for the printer with APS. The lease between Wells Fargo and Moore stated that Moore amay be entitled to the promises and warranties (if any) provided to [Wells Fargo] by the Supplier,a and that Wells Fargo atransfer[red] to [Moore] all automatically transferable warranties, if any, made to [Wells Fargo] by the Supplier.a

Moore began having problems with the printer, and pursuant to the maintenance contract, APS attempted to resolve the problems, but was ultimately unable to do so to Moore’s satisfaction. Moore sued APS for breach of contract, breach of fitness for a particular purpose, conversion, and unfair and deceptive trade practices. Moore also sought rescission of the lease agreement and quantum meruit, alleging that APS made certain warranties related to the printer.

The COA held that because the Wells Fargo lease was only signed by Moore’s president and not APS, it was insufficient to form an enforceable lease between Moore and APS. The COA further held that the Wells lease did not establish privity of contract between Moore and APS. The Court noted that a lessee and a supplier/seller can be in privity of contract with the lessor, and the lessee could try to prove that the equipment selleras representations and warranties made to the lessor were part of the inducement to enter into the lease. However, this is only true where the equipment lease directs the lessee to seek relief exclusively from the supplier/seller of the equipment and identifies the supplier/seller by name, and the supplier/seller is a party to the suit for breach of warranty. In this case, the Wells lease agreement specified that Network Data Systems was the supplier/seller of the printer, not APS, and APS was not mentioned anywhere in the Wells lease. It is unclear why, but Moore did not bring suit against Network Data Systems. Recission of the lease was also not proper because the parties to the lease agreement were Moore and Wells Fargo, and Wells was not a party to the suit.

Plaintiff: Wells Fargo Bank, National Association. Defendant: Joseph Fitten and Pamela Fitten.

Plaintiff: Randal R. Benson. Defendant: Wells Fargo Bank, NA.

Plaintiff: Moon Eng and Shirley Armintrout. Defendant: Wells Fargo Bank, N.A., Wachovia Mortgage, FSB, World Savings Bank, FSB, Benchmark Lending Group, Inc., Mortgage Electronic Registration System and other.

Plaintiff: Allen W. Kichler and Melinda J. Kichler. Defendant: Wells Fargo Bank, N.A., ABC Corporation and all other persons unknown claiming any right, title, estate, interest, or lien in the real estate described in the complaint.

Defendant: Wells Fargo Bank, N.A. and Wells Fargo Home Mortgage, Inc. Plaintiff: Lisa Wood and Richard Wood.

Plaintiff: Beverly A. Brown. Defendant: World Savings Bank, FSB, Wachovia Mortgage, FSB and Wells Fargo Bank, N.A.

Plaintiff: Barbara MacLeod, Melissa MacLeod and Frances K. Mullin. Defendant: Mortgage Electronic Registration Systems, Inc., Accredited Home Lenders, Inc., Wachovia Bank, N.A., Wells Fargo Bank, N.A. and Arch Bay Holdings, LLC and other.

Plaintiff: Mary by Peggy Parker Schmidt. Defendant: Wells Fargo Bank, N.A.

Plaintiff – Appellant: SHIN KUBOYAMA and DEBORAH KUBOYAMA. Defendant – Appellee: WELLS FARGO BANK NA, RECONTRUST COMPANY NA, DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for the Haborview Mortgage Loan Trust Mortgage Loan Pass-Through Certificates, Series, 2006-6, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., AKA MERS, BANK OF AMERICA, NA, individuall;y and as successor in interest to Countrywide Bank NA and other.

Plaintiff: Victor Christiansen and Olga Christiansen. Defendant: Wells Fargo Bank, N.A. and NDEX West L.L.C.

Plaintiff: Melody Dawson. Defendant: Wells Fargo Bank, N.A.

Plaintiff: Beverly A. Brown. Defendant: World Savings Bank, FSB, Wachovia Mortgage, FSB and Wells Fargo Bank, N.A.

Plaintiff: Barbara MacLeod, Melissa MacLeod and Frances K. Mullin. Defendant: Mortgage Electronic Registration Systems, Inc., Accredited Home Lenders, Inc., Wachovia Bank, N.A., Wells Fargo Bank, N.A. and Arch Bay Holdings, LLC and other.

Plaintiff: Claude Emile. Defendant: Mortgage Electronic Registration Systems Inc. and Wells Fargo Bank, N.A.

Plaintiff: Valerie Coleman and John Cerruti. Defendant: Mortgage Electonic Registration Systems, Inc and Wells Fargo Bank, NA.

Plaintiff: Chanthy Kun. Defendant: Mortgage Electronic Registration System, Wells Fargo Bank, NA and CCO Mortgage Corporation.

Plaintiff: Louis Lesniak. Defendant: Wells Fargo Bank, N.A., Federal National Mortgage Association and Mortgage Electronic Registration Systems, Inc.