Judicial Notice of Internet Evidence — Government’s Agreement with National Bank as Posted on Government Website Noticed for Its Terms

Lawrence v. Fed. Home Loan Mortg. Corp., 2015 U.S. Dist. LEXIS 40012 (W.D. Tex. Mar. 30, 2015):

A.  Standard of Review For Motion for Summary Judgment

Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure only "if the movant shows there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A dispute is genuine only [*19]  if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254,106 S. Ct. 2505, 2513 (1986).

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Wells Fargo had a foreclosure sale scheduled for December 6, 2011, some 22 days after the Lawrences returned their HAMP [Home Affordable Modification program] application on November 14, 2011.*** Wells Fargo had previously postponed multiple scheduled foreclosure sales on short notice to accommodate further negotiations concerning its in-house full repayment plans with the Lawrences. *** Furthermore, the terms of Wells Fargo's Service Provider Agreement (SPA) concerning the federal HAMP program likely required Wells Fargo to suspend the foreclosure sale until resolving the issue of whether the timely filed application was HAMP-eligible.6 Nevertheless, instead [*33]  of finally evaluating the Lawrences' HAMP application, Wells Fargo proceeded with the sale, stating it did not have enough time to review documentation received on December 2, 2014,

6   While the Lawrences lack standing to enforce the provisions of the SPA, see infra, Section III.B.5, Wells Fargo's contractual obligations under the SPA are public documents that the Court may consider sua sponte as evidence relevant to Defendants' alleged intentions regarding the negotiation of the Lawrences' loan modification. FED. R. EVID. 201. The Treasury has posted the terms of its SPA with Wells Fargo, signed by a Treasury representative, on the official www.treasury.gov website, as a self-authenticating public document. FED. R. EVID. 902. See Amended and Restated Commitment to Purchase Financial Instrument and Server Participation Agreement ("SPA") between Wells Fargo, Fannie Mae, and Freddie Mac (as designees of the U.S. Treasury), March 19, 2010, available at http://www.treasury.gov (last visited March 18, 2015).

The SPA obligates Wells Fargo to abide by the directives of the MHA Handbook, including the following: "When a servicer receives an Escalated Case . . . no later than midnight of the seventh business day prior to the foreclosure sale date (Deadline), [*34]  the servicer must suspend the sale as necessary to resolve the Escalated Case." MHA Handbook § 3.4.2. (emphasis added), available at https://www.hmpadmin.com (last visited March 18, 2015). Receipt of the Lawrences' HAMP application on November 14, 2011 likely triggered this suspension obligation, and the terms of the SPA and the MHA Handbook dictated that this November 14, 2011, application, including the later-requested, supplemental information received December 2, 2011, should have been considered before the foreclosure sale proceeded. See id.

While not an obligation Plaintiffs can enforce, Wells Fargo's decision to proceed with foreclosure before considering the HAMP application, despite the terms of the SPA and MHA Handbook, is circumstantial evidence which may be relevant to whether Plaintiffs have raised a fact issue regarding their various misrepresentation and fraud claims. See JJJJ Walker, LLC v. Yollick, 447 S.W.3d 453, 461 (Tex. App.-Houston [14thDist.] 2014 (citing Aquaplex, Inc. v. Rancho La Valencia, Inc., 297 S.W.3d 768, 774-75 (Tex. 2009) (circumstantial evidence of intent or recklessness may be sufficient to support a fraud finding).

Wells Fargo admits these and other mistakes, untruths, and acts of negligence towards the Plaintiffs. And why not? [*35]  Wells Fargo can afford to be utterly candid about its malfeasance because Defendants contend the law does not currently recognize a cause of action that would render their treatment of Plaintiffs unlawful.

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