HAMP - various case squibs re no private right and related

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HAMP - various case squibs re no private right and related

Postby Administrator » Wed Nov 12, 2014 2:35 pm

Law v. Ocwen Loan Servicing, L.L.C.,
--- Fed.Appx. ----, 2014 WL 5285947, C.A.5 (Tex.), October 16, 2014 (NO. 14-20019)

...61 (5th Cir.1977) This circuit has not precedentially resolved whether there is a private cause of action under the HAMP regulations. We have held in an unpublished opinion that there is not. Pennington v. HSBC Bank USA, N.A., 493 F...

...We need not answer that question here, because Law has not presented any argument to suggest that there is a private right of action. Thus, in order to bring suit for violations of HUD or HAMP regulations, Law must show that the regulations were......


Brinson v. Universal American Mortg. Co.,
Slip Copy, 2014 WL 4354451, S.D.Tex., September 02, 2014 (NO. CIV.A. G-13-463)

...Brinson's argument that she has stated a claim under the TDCA. Brinson's legal theory is also untenable because violations of HAMP guidelines cannot form the basis of a TDCPA claim. HAMP and related programs do not create a private right of action for homeowners. See, e.g., Cruz v. CitiMortgage, Inc., No. 11–cv–2871, 2012 WL 1836095, at *6 (N.D.Tex. May 21, 2012) “The vast majority of courts that have addressed similar claims by plaintiffs asserting entitlement to a permanent HAMP modification, based on a variety of different legal theories, have universally rejected these claims on the ground that HAMP does not create a private right of action for borrowers against lenders and servicers.” Easley v. Federal Nat. Mortg. Ass'n, No. 10–cv–3734, 2011 WL 6002644, at *5 (S.D.Tex. Nov.30, 2011) (stating that “there is no private cause of action under HAMP” and collecting cases). Under the applicable law, Brinson may not bootstrap alleged HAMP violations as a TCDPA claim. See Machleit v. Bank of Am., N.A., No. 12–cv–1942, 2012 WL 6840539, at...

...10, 2013) “Regardless of the characterization of his claim as one under Texas' Debt Collection Act, [the] failure to follow HAMP or HAFA guidelines [does not] provide[ ] [the debtor] with a private cause of action.” Brooks v. Ocwen Loan Servicing, LLC......


Parr v. Deutsche Bank Nat. Trust Co.,
Slip Copy, 2014 WL 3943698, W.D.Tex., August 11, 2014 (NO. SA-13-CV-930-XR)

...vast majority of courts that have addressed similar claims by plaintiffs asserting entitlement to a permanent [Home Affordable Modification Program (“HAMP”) ] modification, based on a variety of different legal theories, have universally rejected these claims on the ground that HAMP does not create a private right of action for borrowers against lenders and servicers.” Next, section 392.303(b) of the TDCA provides, “a creditor may charge a......

Cooper v. Wells Fargo Bank, N.A.,
Not Reported in F.Supp.2d, 2014 WL 3671204, E.D.Tex., July 22, 2014 (NO. 4:11-CV-440)

...issue.” Richardson v. Wells Fargo Bank, N.A., 873 F.Supp.2d 800, 809 (N.D.Tex.2012) Additionally, the Defendant argues that no private right of action exists under HARP. The Defendant contends that HARP and the Home Affordable Modification Program (“HAMP”) are sister programs within the Making Home Affordable (“MHA”) program. The Defendant reasons that since no private right of action exists under HAMP, no private right of action exists under HARP as well. While the Plaintiffs (1) cannot attempt to enforce the Defendant's contracts to participate in the MHA or HAMP (or, presumably, HARP) programs, and (2) cannot assert HAMP (or, presumably, HARP) violations as the basis for their claims, “the court must consider whether the conduct and facts alleged......

Sauceda v. Select Portfolio Servicing, Inc.,
Slip Copy, 2014 WL 1247827, S.D.Tex., March 25, 2014 (NO. 2:13-CV-397)

...that may be imposed by statute or by the common law. Plaintiff alleges that such a duty arises through the HAMP program or through the alleged contracts. The HAMP program is not statutory. It is an official program of the United States Departments of the Treasury & Housing and Urban...

...homeowners through a program that is largely voluntary and discretionary. See generally, http://www.makinghomeaffordable.gov. Plaintiff conceded in his response that HAMP does not guarantee the right to a loan modification and does not create a private right of action. D.E. 13, p. 4. There is no statutory or administrative duty of good faith and fair dealing owed to Plaintiff......

Neel v. Fannie Mae,
Slip Copy, 2014 WL 1050125, S.D.Miss., March 17, 2014 (NO. 1:12CV311-HSO-RHW)

...and Saxon is entitled to summary judgment on this claim. 7. HAMP Claim Saxon moves for summary judgment on Plaintiffs' “HAMP claim” on the basis that HAMP does not create a private right of action in favor of Plaintiffs. Mem. in Supp. of Mot. for Summ. J. 17–18[148]. Plaintiffs counter that Saxon misrepresented...

...consider [Plaintiffs] for other modification options” and “could not explain the modification [to Plaintiffs] adequately Id. at 31–32. Plaintiffs' “HAMP claim” is not well taken. “HAMP does not create a private right of action in a borrower.” Ortiz v. Citimortgage, Inc., 954 F.Supp.2d 581, 587 n. 2 (S.D.Tex.2013) (quoting Tran v. BAC...

...2011) ) (quotations omitted). Without citation to legal authority, Plaintiffs reason that summary judgment is not warranted as to their purported “HAMP claims” because Saxon did not provide them with other modification options and failed to sufficiently explain the proposed modification plan. Plaintiffs have not carried their summary judgment burden as to their purported “HAMP claim” against Saxon, and Saxon is entitled to judgment as a matter of law on this claim. Kiper v. BAC......


Massey v. EMC Mortg. Corp.,
546 Fed.Appx. 477, C.A.5 (Tex.), November 05, 2013 (NO. 12-10993)

...fraud, negligent misrepresentation, and unreasonable debt collection.FN 1 We examine each in turn. [ FN1.] We do not address any alleged HAMP violations under a private right of action or third-party beneficiary theory because those claims were not brought in the district court. Likewise, we need not consider......


Calvino v. Conseco Finance Servicing Corp.,
Slip Copy, 2013 WL 4677742, W.D.Tex., August 30, 2013 (NO. A-12-CA-577-SS)

...a modification fails because Calvino has no automatic right to a modification under the loan instruments, and there is no private right of action under the HAMP program. Cade v. BAC Home Loans Servicing, LP, No. H104224, 2011 WL 2470733 at *2 & n. 2 (S.D.Tex. June 20......

May v. Wells Fargo Bank, N.A.,
Slip Copy, 2013 WL 4647673, S.D.Tex., August 29, 2013 (NO. CIV. 4:11-3516)

...Moreover, Plaintiffs do not cite to or produce evidence of any binding agreement between the parties regarding a loan modification. HAMP does not create a private right of action, and individual borrowers lack standing to challenge compliance with HAMP agreements.FN 28 [ FN28.] See, e.g., Hung Quang Tran v. BAC Home Loans Servicing, LP, No. 4:10–CV–03514, 2011......


Ashton v. BAC Home Loans Servicing, L.P.,
Slip Copy, 2013 WL 3807756, S.D.Tex., July 19, 2013 (NO. 4:13-CV-810)

...event, the Southern District of Texas has consistently held that federal loan modification programs, like the Home Affordable Modification Program (“HAMP”), do not create a private right of action for a borrower. See, e.g., Hung Quang Tran v. BAC Home Loans Servicing, LP, No. 4:10–cv–03514, 2011...

...2011) (Miller, J.) (collecting cases) (dismissed third-party beneficiary and promissory estoppel claims based on alleged failure to comply with HAMP); Akintunju v. Chase Home Fin., LLC, No. H–11–389, 2011 WL 2470709 (S.D.Tex. June 20, 2011) (Rosenthal, J.); see...

...2609436, at *10 (D.Nev. June 23, 2010) (Navarro, J.) (dismissed wrongful foreclosure claim based on alleged failure to comply with HAMP). D. Promissory Estoppel Plaintiff also asserts two promissory estoppel theories. First, he argues that he “relied on the statutory guarantees......


Northcutt v. CitiMortgage, Inc.,
Slip Copy, 2013 WL 3280211, S.D.Tex., June 27, 2013 (NO. CIV.A. H-12-646)

...Home Affordable Modification Program (“HAMP”) Northcutt argues that CMI's handling of the foreclosure sale violates the Home Affordable Modification Program (“HAMP”). Dkt. 1, Ex. A at ¶ 16. As above Northcutt pleads no further facts on this issue. “Although the Fifth Circuit has yet to rule on the issue, the majority of courts have held that HAMP does not create a private right of action in a borrower.” Tran v. BAC Home Loans Servicing, LP, Civ. No. H–10–3514, 2011 WL 5057099, at *2...

...Home Fin., LLC, 677 F.3d 1113, 1116 (11th Cir.2012) Northcutt may not maintain a cause of action under HAMP. And, the court notes that even if she could, she has failed to assert any facts in support of her claim. Accordingly, Northcutt's claims under HAMP fail. V. Conclusion Pending before the court is defendants' motion for summary judgment. Dkt. 10. Upon review of the motion......


Browning v. PHH Mortg. Corp.,
Slip Copy, 2013 WL 3244094, S.D.Tex., June 26, 2013 (NO. CIV.A. H-12-0886)

...obligations under that agreement is excused. Defendants are entitled to dismissal of Plaintiff's breach of contract claim.FN 5 [ FN5.] Further, HAMP does not create a private right of action, and individual borrowers lack standing to challenge compliance with HAMP agreements. See, e.g., Hung Quang Tran v. BAC Home Loans Servicing, LP, No. 4:10–cv–03514, 2011 WL 5057099...

...2011) (Miller, J.) (collecting cases) (dismissed third-party beneficiary and promissory estoppel claims based on alleged failure to comply with HAMP); Akintunju v. Chase Home Fin., LLC, No. H–11–389, 2011 WL 2470709 (S.D.Tex. June 20, 2011) (Rosenthal, J.); see...

...2609436, at * 10 (D.Nev. June 23, 2010) (Navarro, J.) (dismissed wrongful foreclosure claim based on alleged failure to comply with HAMP). Although these cases have focused on a plaintiff's claims for third party beneficiary, promissory estoppel, breach of good faith and......


Ortiz v. Citimortgage, Inc.,
954 F.Supp.2d 581, S.D.Tex., June 20, 2013 (NO. CIV.A. H-12-3580)

...of Condition, Release, and Satisfaction 266k 306 k. Change in time or mode of payment. The Home Affordable Modification Program (HAMP), which prohibits a lender from foreclosing on a home during the HAMP application or loan modification process, does not create a private right of action in a mortgagor. [9] 156 Estoppel 156III Equitable Estoppel 156III(B) Grounds of Estoppel 156k 82 Representations 156k 85 k...

...is barred by the statute of frauds.FN 2 Dkt. 6. [ FN2.] Ortiz mentions briefly in the complaint that CMI “violated HAMP guidelines” when CMI foreclosed on Ortiz's house before he received the letter denying him a loan modification. Dkt. 1–4. It is unclear whether he is attempting to state a claim for the alleged HAMP violation. However, “although the Fifth Circuit has yet to rule on the issue, the majority of courts,” including this court, “have held that HAMP does not create a private right of action in a borrower.” Tran v. BAC Home Loans Servicing, LP, No. 4:10–CV–03514, 2011 WL 5057099, at *2...

...2009, pet. dism'd w.o.j.) Thus, Ortiz's cause of action for breach of contract, to the extent he asserts it under HAMP, fails as a matter of law. [9] [10] To state a claim for promissory estoppel, plaintiffs must plead facts showing......


Martinez-Bey v. Bank of America, N.A.,
Slip Copy, 2013 WL 3054000, N.D.Tex., June 18, 2013 (NO. 3:12-CV-4986-G BH)

...Secretary of the Treasury.” Pub.L. 111–22 , § 401, 123 Stat. at 1655–56. Although the Home Affordable Modification Program (HAMP) and the Hope for Homeowners Program were enacted in part to help homeowners avoid foreclosure, FN 5 courts have held that...

...NA, No. 3:12–CV–01831–BF, 2013 WL246860, at *3 (N.D.Tex. Jan. 21, 2013) (holding that “there is no private right of action for borrowers for failure to receive a HAMP modification” ) (collecting cases); Wallace, 2010 WL 2574058, at *3 “Congress did not create a private right of action for individuals to sue banks under the HOPE for Homeowners Act.” [ FN5.] HAMP, codified in 12 U.S.C. §§ 5219 and......


Reynolds v. Bank of America, N.A.,
Not Reported in F.Supp.2d, 2013 WL 1904090, N.D.Tex., May 08, 2013 (NO. 3:12-CV-1420-L)

...duty of good faith and fair dealing. These claims appear to be based on Bank of America's alleged noncompliance with HAMP or MHA regulations. See Defs.' Notice of Removal 15 ( “Defendants intentionally failed to act in good faith or to deal...

...Defendants respond that Plaintiffs' breach of contract claims should be dismissed because they rely exclusively on Plaintiffs' ability to enforce HAMP or MHA, neither of which creates a private right of action for borrowers against lenders and servicers. Br. in Support of Mot. to Dismiss 10. The court agrees. The elements necessary...

...Corp. v. Coleman, 795 S.W.2d 706, 709–10 (Tex.1990) As the Fifth Circuit and other courts have held, “HAMP affords no private right of action” for borrowers against lenders and servicers. Pennington v. HSBC Bank USA, N.A., No. 12–50064, 2012 WL 4513333, at *2......


Carrillo v. Bank of America, N.A.,
Not Reported in F.Supp.2d, 2013 WL 1558320, S.D.Tex., April 11, 2013 (NO. CIV.A. H-12-3096)

...80 (5th Cir.2012) Carrillo first alleges that the original Note and Deed of Trust were supplemented and modified by HAMP directives. (Docket Entry No. 1–2 at 8). Carrillo does not allege which HAMP regulations were incorporated into the contract and, of those, which she believes the defendants violated. She also does not explain the mechanism by which HAMP regulations, which were not the result of an agreement by the parties, were incorporated into the Note and Deed of Trust. Even if the mortgage contract is subject to federal HAMP regulations, the case law is clear that there is no private right of action under HAMP. See, e.g., Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 559 n. 4 (7th Cir.2012) “Courts have uniformly rejected these claims because HAMP does not create a private federal right of action for borrowers against servicers.” see also Miller v. Chase Home Fin...

...would be futile. B. Negligence, Negligent Misrepresentation, and Gross Negligence Carrillo alleges that the defendants acted negligently by violating federal HAMP regulations stating that “servicers should not proceed with a foreclosure sale until the borrower has been evaluated for the program and, if eligible, an offer to participate in HAMP has been made.” HAMP, Supplemental Directive 09–01, at 14 April 6, 2009. To state a negligence claim under Texas law, a plaintiff must...

...Bank Nat. Ass'n, 2013 WL 264561 (5th Cir. Jan.18, 2013) To the extent that the defendants owe duties to HAMP, Carrillo has not shown why she has standing to assert a claim to enforce those duties. And the courts, as noted above, have consistently rejected any private right of action under HAMP. Carrillo's negligence and gross negligence claims are dismissed with prejudice and without leave to amend because leave to amend would......


Mendez v. Wells Fargo Bank, N.A.,
Not Reported in F.Supp.2d, 2013 WL 1352180, S.D.Tex., April 02, 2013 (NO. CIV.A. H-11-3954)

...acceptance of funds under the Emergency Economic Stabilization Act of 2008 and participation in the Making Home Affordable Program or HAMP. However, even assuming this is true, it does not give rise to a contract between the plaintiffs and Wells Fargo. And, “[a]lthough the Fifth Circuit has yet to rule on the issue, the majority of courts have held that HAMP does not create a private right of action in a borrower.” Tran v. BAC Home Servicing, LP, Civ. No. H–10–3514, 2011 WL 5057099, at *2 (S.D.Tex......


Lee v. Wells Fargo Bank, N.A.,
Not Reported in F.Supp.2d, 2013 WL 754053, S.D.Tex., February 27, 2013 (NO. CIV.A. H-11-1334)

...and deed of trust, Wells Fargo had authority to accelerate the note and foreclose on Lee's home. Morgan alleges that HAMP guidelines prohibited Wells Fargo from foreclosing on the property while the loan modification application was pending. (Docket Entry No. 18, ¶¶ 19–20). But the law is clear that there is no private right of action under HAMP. Pennington v. HSBC Bank USA, N.A., 2012 WL 4513333, at *2 (5th Cir. Oct.3, 2012) see also Wigod v...

...Fargo Bank, N.A., 673 F.3d 547, 559 n. 4 (7th Cir.2012) “Courts have uniformly rejected these claims because HAMP does not create a private federal right of action for borrowers against servicers.” Even if a private right of action did exist for Lee to enforce the HAMP guidelines, Morgan would lack standing to sue on Lee's behalf. Morgan did not own the property, and he does not allege that he had submitted a HAMP loan modification application. Morgan also alleges that Wells Fargo violated the state court's temporary restraining order by proceeding with the......



Holloway v. Wells Fargo Bank, N.A.,
Not Reported in F.Supp.2d, 2013 WL 1187156, N.D.Tex., February 26, 2013 (NO. 3:12-CV-2184-G BH)

...was not a party to the SPA, he claims to be an “intended third-party beneficiar[y]. Id. at 19.) HAMP was established by the U.S. Department of the Treasury under the Emergency Economic Stabilization Act of 2008 (EESA) as part...

...country's housing and financial system.” Strange, 2012 WL 987584, at *2 (citing 12 U.S.C.A. § 5201 (West 2010) Pursuant to HAMP, banks may establish contracts (SPAs) with the federal government to provide mortgage borrowers with loan modifications in exchange for certain financial incentives. Id. (citations omitted). Courts have held that “HAMP does not create a private right of action for borrowers against lenders and servicers.”FN 17 Geske v. Wells Fargo Bank, Nat. Ass'n, No. 3:11–CV3337–L, 2012...

...e.g., Cade, 2011 WL 2470733, at *2–3; see also Strange, 2012 WL 987584, at *3 “While compliance with the HAMP guidelines and directives yields certain benefits to [borrowers] in the form of loan modifications and standardized foreclosure practices, this does......


Everhart v. CitiMortgage, Inc.,
Not Reported in F.Supp.2d, 2013 WL 264436, S.D.Tex., January 22, 2013 (NO. CIV.A. H-12-1338)

...promissory estoppel claim that Plaintiffs would review their application for modification. # 1–3, Orig. Petition at p. 5. Plaintiffs name HAMP as the basis for their claim and assert they were entitled to a review under that program. Defendant points out that Plaintiffs do not have a private cause of action under HAMP and are not allowed to bring a claim alleging a violation of it. See, e.g., Cade v. BAC Home Loans Servicing, LP, H–10–4224, 2011 WL 2470733, *2 (S.D.Tex. June 20, 2011) (holding there is no private right of action under HAMP and observing that the majority of district courts have reached the same conclusion); Aleem v. Bank of America, 2010 WL 532330, *3 (C.D.Cal. Feb.9, 2010) (no private right of action for a HAMP violation). The Court agrees that borrowers do not have a private right of action to challenge compliance with HAMP. See, e.g., Nolasco v. CitiMortgage, Civ. A. No. H–12–1875, 2012 WL 3648414, *4 (S.D.Tex. Aug.23, 2012) (and......


Wildy v. Wells Fargo Bank, NA,
Not Reported in F.Supp.2d, 2013 WL 246860, N.D.Tex., January 21, 2013 (NO. 3:12-CV-01831-BF)

...Moreover, several federal district courts in the Fifth Circuit, as well as other circuits, have held that there is no private right of action for borrowers for failure to receive a HAMP modification. See Cruz v. CitiMortgage, Inc., No. 3:11–CV–2871–L, 2012 WL 1836095, at *6 (N.D.Tex. May 21, 2012) (dismissing the plaintiffs' claim of entitlement to a permanent loan modification under HAMP because HAMP does not create a private right of action for borrowers against lenders and servicers); Cade, 2011 WL 2470733, at *2 (explaining that “the majority of courts faced with HAMP questions have determined that no private right of action to enforce lender compliance exists under HAMP” Akintunji v. Chase Home Fin., L.L.C., No. H–11–389, 2011 WL 2470709, at *4 (S.D.Tex. June 20, 2011) (holding that there is no private cause of action under HAMP); Mortberg v. Litton Loan Servicing, L.P., No. 4:10–CV–668, 2011 WL 4431946, at *5 (E.D.Tex. Aug.30, 2011) (holding that HAMP does not create a private right of action in the borrower); Gianake v. JPMorgan Chase Bank, No. H–11–2075, 2011 WL 2670179, at * 1 n. 2 (S.D.Tex...

...cases from federal district courts in other circuits which have held that there is no private cause of action under HAMP). In Plaintiffs' response to the Motion to Dismiss, they acknowledge that no private right of action for borrowers exists under HAMP, and they insist that their breach of contract claim stems from the Deed of Trust and not from HAMP. This Court disagrees. Again, the Court points out that Plaintiffs have failed to establish any contractual provision in the Deed...

...Wells Fargo has violated. Instead, Plaintiffs' claims of entitlement to “the full range of default-curing options such as the HAMP, proprietary modification, and foreclosure alternatives, such as a short sale or deed-in-lieu of foreclosure” comes directly from the......


Webb v. Wells Fargo Bank, N.A.,
Not Reported in F.Supp.2d, 2013 WL 145042, S.D.Tex., January 11, 2013 (NO. CIV.A. H-12-0805)

...HAMP or HAFA existed. Nor can Webb prevail on a breach of contract claim based on an alleged violation of HAMP or HAFA. Webb is not a third-party beneficiary to the HAMP and HAFA agreements between Wells Fargo and the federal government and, therefore, may not assert a breach of contract claim...

...third-party beneficiary rights, the [homeowner plaintiffs] do not have standing to bring an action for breach of contract under HAMP or Texas law.” Furthermore, as Webb recognizes,FN 28 there is no private cause of action for violations of the HAMP or HAFA guidelines. See Cade v. BAC Home Loans Servicing, LP, 2011 WL 2470733, at *2 (S.D.Tex. June 20, 2011) “[N]o private right of action to enforce lender compliance exists under HAMP.” Akintunji v. Chase Home Fin. L.L.C., 2011 WL 2470709, at *4 (S.D.Tex. June 20, 2011) “There is no private cause of action under HAMP.” [ FN28.] Response to Wells Fargo's Motion to Dismiss and Motion to Amend, Docket Entry No. 18, ¶ 8. Webb argues......



Blakeney v. Wells Fargo Bank, N.A.,
Not Reported in F.Supp.2d, 2012 WL 6691122, S.D.Tex., December 21, 2012 (NO. CIV.A. H-12-0845)

...HAMP or HAFA existed. Nor can Blakeney prevail on a breach of contract claim based on an alleged violation of HAMP or HAFA. Blakeney is not a third-party beneficiary to the HAMP and HAFA agreements between Wells Fargo and the federal government and therefore may not assert a breach of contract claim...

...third-party beneficiary rights, the [homeowner plaintiffs] do not have standing to bring an action for breach of contract under HAMP or Texas law.” Furthermore, as Blakeney recognizes,FN 32 there is no private cause of action for violations of the HAMP or HAFA guidelines. See Cade v. BAC Home Loans Servicing, LP, 2011 WL 2470733, at *2 (S.D.Tex. June 20, 2011) “[N]o private right of action to enforce lender compliance exists under HAMP.” Akintunji v. Chase Home Fin. L.L.C., 2011 WL 2470709, at *4 (S.D.Tex. June 20, 2011) “There is no private cause of action under HAMP.” [ FN32.] Response to Banks' Motion to Dismiss and Motion to Amend, Docket Entry No. 15, ¶ 7. Blakeney argues, however......


Bassie v. Bank of America, N.A.,
Not Reported in F.Supp.2d, 2012 WL 6530482, S.D.Tex., December 13, 2012 (NO. 4:12-CV-00891)

...claim based on Bank of America's failure to comply with the regulations. They also argue that the case law precluding private rights of action through HAMP does not apply because their breach of contract claim is not “wholly dependent on “ HAMP. The plaintiffs allege that their claim under the TDCA should not be dismissed because Bank of America is, in fact...

...legal authority against them, the plaintiffs argue that because their breach of contract claim is “independent of violation of a HAMP agreement,” the case law precluding private rights of action through HAMP does not apply. The Court rejects that argument because a reasonable reading of the petition establishes that the plaintiffs' breach of contract claims are, in fact, based on (and dependent upon) alleged HAMP (and HUD) violations. Similarly, the plaintiffs' breach of contract claim based on Bank of America's alleged failure to comply with......


Wildy v. Wells Fargo Bank, NA,
Not Reported in F.Supp.2d, 2012 WL 5987590, N.D.Tex., November 30, 2012 (NO. 3:12-CV-01831-BF)

...the Handbook. Moreover, courts in the Fifth Circuit have repeatedly held that borrowers are not third-party beneficiaries to the HAMP or MHA agreements, and thus lack standing to challenge the lender's compliance with these federal programs. See Strange v. Flagstar...

...2012) (granting a lender's motion to dismiss because the borrowers lacked standing to bring a breach of contract claim under HAMP); Cade v. Bac Home Loans Servicing, LP, No. H–10–4224, 2011 WL 2470733, at *2 (S.D.Tex. June 20, 2011) (explaining that “the majority of courts faced with HAMP questions have determined that no private right of action to enforce lender compliance exists under HAMP. This majority has declined to find a private right, and further rejected the theory that borrowers are intended third-party beneficiaries of the HAMP Servicer Particpation Agreement” Burr, 2012 WL 1059043, at *5 (holding that borrowers are not third-party beneficiaries of a lending institution's HAMP and HAFA agreements, and thus lack standing to challenge the lender's compliance with these agreements); Akintunji v. Chase Home Fin...

...389, 2011 WL 2470709, at *4 (S.D.Tex. June 20, 2011) (holding that there is no private cause of action under HAMP); Gianake v. JPMorgan Chase Bank, No. H–11–2075, 2011 WL 2670179, at * 1 n. 2 (S.D.Tex. July 7, 2011) (collecting cases from several federal district courts holding there is no private cause of action under HAMP). Thus, even if the Handbook of the HAMP or MHA programs was binding on Brice Vander, Plaintiffs still lack standing......


Bailey v. BAC Home Loans Servicing, LP,
Not Reported in F.Supp.2d, 2012 WL 5497632, E.D.Tex., November 13, 2012 (NO. 4:11CV590)

...to allege breach of any modification agreement. Next, Defendant argues that Plaintiff cannot base a breach of contract action on HAMP. The Court agrees. “[A] borrower has no private right of action under MHA or HAMP.” Dempsey v. U.S. Bank Nat., 2012 WL 2036434, 6 (E.D.Tex.2012) citing Pardy v. Chase Home Fin., L.L.C., 2012 WL......


Jameel v. Flagstar Bank, FSB,
Not Reported in F.Supp.2d, 2012 WL 5384177, S.D.Tex., November 02, 2012 (NO. CIV.A. H-12-1510)

...Plaintiff now predicates her claims primarily on an allegation that she was offered and accepted a trial loan modification under HAMP, which was then orally extended by Flagstar. Flagstar correctly points out that there is no private right of action under HAMP and no guarantee of a HAMP modification. See, e.g., Cade v. BAC Home Loans Servicing, LP, No. 10–4224, 2011 WL 2470733, *2–3 (S.D.Tex. June...

...2010) Hoffman v. Bank of America, No. C–10–2171 SI, 2010 WL 2635773, *5 (N.D.Cal. June 30, 2010) Because HAMP does not afford a private right of action, all Plaintiff's claims premised on HAMP fail to state a claim upon which relief can be granted. Furthermore, to the extent that a breach of contract......


Morshaeuser v. Citimortgage, Inc.,
Not Reported in F.Supp.2d, 2012 WL 5289383, E.D.La., October 24, 2012 (NO. CIV.A. 12-2210)

...failing to rely on it in response to the plaintiffs' motion to remand. The plaintiffs contend that there is no private right of action under the Home Affordable Modification Program or the Troubled Asset Relief Program, citing Miller v. Chase Home Finance, LLC, 677 F.3d 1113, 1116 (11th Cir.2012) (per curiam). Plaintiffs also contend that the claim relating to HAMP is based on a state law theory for breach of contract. Because Citi is invoking this Court's subject matter jurisdiction......


Pennington v. HSBC Bank USA, N.A.,
493 Fed.Appx. 548, 2012 WL 4513333, (Not Selected for publication in the Federal Reporter), C.A.5 (Tex.), October 03, 2012 (NO. 12-50064)

...A few courts have declared that state breach-of-contract claims fail to state a cause of action independently of HAMP. E.g., Bourdelais v. J.P. Morgan Chase, No. 3:10–CV–670–HEH, 2011 WL 1306311, at *4 (E.D.Va. Apr. 1, 2011) Because HAMP affords no private right of action, Miller v. Chase Home Fin., LLC, 677 F.3d 1113, 1116 (11th Cir.2012) , the Bourdelais court's reasoning means dismissal......


Goffney v. Bank of America, N.A.,
897 F.Supp.2d 520, S.D.Tex., September 17, 2012 (NO. CIV.A. H-12-1868)

...dispute between mortgagor and mortgagee as to whether foreclosure and subsequent sale of mortgagor's home violated Home Affordable Modification Program (HAMP) and Home Affordable Foreclosure Alternative (HAFA) program was not a substantial one within meaning of federal question jurisdiction statute, in...

...mortgagor's removed action alleging breach of contract and violations of Texas Debt Collection Act (TDCA); Congress's decision not to provide private right of action under HAMP or HAFA was strong evidence that claim alleging violations of those programs as mere elements of Texas breach of contract and TDCA claims did not create substantial question of federal law, lack of a private right of action indicated that Congress did not intend to alter balance of federal and state judicial responsibilities in mortgage foreclosure litigation, and...

...not necessary to the overall success of each claim. B. The Federal Issues Are Not “Substantial” [11] Any dispute over HAMP or HAFA is not a substantial one within the meaning of § 1331 In Merrell Dow, the Supreme Court declined......


Bacon v. U.S. Bank Nat. Ass'n,
Not Reported in F.Supp.2d, 2012 WL 4506532, E.D.Tex., August 31, 2012 (NO. 4:12CV86)

...harm.” MHA, HAMP and FIRREA (Plaintiff's “Other Violations of Federal Law”) Next, Defendants argue that Plaintiff lacks standing under MHA, HAMP, and FIRREA to assert a private cause of action based on the facts alleged. “[A] borrower has no private right of action under MHA or HAMP.” Dempsey v. U.S. Bank Nat., 2012 WL 2036434, 6 (E.D.Tex.2012) citing Pardy v. Chase Home Fin., L.L. C., 2012......


Massey v. JPMorgan Chase Bank, N.A.,
Not Reported in F.Supp.2d, 2012 WL 3743493, N.D.Tex., August 29, 2012 (NO. 4:12-CV-154-A)

...argue that plaintiffs have attempted to “recast” their claims under the Making Home Affordable (“MHA”) and Home Affordable Modification Program (“HAMP”), for which there is no private right of action, as claims under the Finance Code, as plaintiffs base some of their allegations under the Finance Code on defendants' failure to offer the plaintiffs a loan modification that complied fully with MHA and HAMP. Mot. at 5–6. Inasmuch as plaintiffs base their cause of action on violations of MHA and HAMP, the defendants are correct, as there is ample legal authority holding that no private right of action exists under MHA or HAMP, and also that plaintiffs may not assert claims as a third-party beneficiary of defendants' contracts to participate in MHA or HAMP. See King v. HSBC Bank USA, N.A., No. SA–12–CV–592–R, 2012 WL 3204190, at *3 (W.D.Tex. Aug.3, 2012) (providing an extensive list of cases in which courts determined that no private right of action or third-party beneficiary status existed under MHA or HAMP for borrowers). Further, “Lenders are not required to make loan modifications for borrowers that qualify under HAMP.” Hoffman v. Bank of Am., N.A., No. C 10–2171 SI, 2010 WL 2635773 (N.D.Cal. June 30, 2010) Plaintiffs counter that they are not asserting a private right of action under MHA or HAMP, but that defendants' actions “thwart the purpose of HAMP, and are unfair and deceptive under state laws.” Resp. at 8. Plaintiffs cite legal authorities that interpret the laws of...

...cases interpreting Texas law. As stated above, plaintiffs cannot attempt to enforce defendants' contracts to participate in the MHA or HAMP programs, cannot assert HAMP violations as the basis of their claims, and defendants are not required to offer plaintiffs a modification that meets the MHA or HAMP guidelines. However, the court must consider whether the conduct and facts alleged in the pleadings could state a claim for......


Gatling v. CitiMortgage, Inc.,
Not Reported in F.Supp.2d, 2012 WL 3756581, S.D.Tex., August 28, 2012 (NO. CIV.A. H-11-2879)

...this court granted the defendants' motion to dismiss. (Docket Entry No. 25). The court dismissed Gatling's cause of action under HAMP, noting courts' uniform refusal to recognize a private right of action under HAMP. Id., at 11–15). The court dismissed many of Gatling's claims—breach of fiduciary duty, fraudulent misrepresentation, fraudulent concealment, and negligence—as recast HAMP claims. Id., at 15). The court dismissed Gatling's wrongful-foreclosure claim, concluding that Gatling had failed to allege the second...

...as they were not based on the theories that she was not in default or that the defendants' actions violated HAMP. Id., at 22–23). This opinion also granted the defendants' motion for additional security, id., at 23–24), but there......


Nolasco v. CitiMortgage, Inc.,
Not Reported in F.Supp.2d, 2012 WL 3648414, S.D.Tex., August 23, 2012 (NO. CIV.A. H-12-1875)

...of the Freddie Mac's [sic] Servicing Guidelines.” Id. at 72. Nolasco's argument fails on two grounds. First, Nolasco acknowledges that HAMP does not grant a private right of action and that she cannot base a breach of contract claim on a HAMP violation. Dkt. 6 at 3–4. But she then proceeds to argue that her breach of contract claim arises under...

...deed of trust because CMI failed to properly consider her for various default-curing options, namely a loan modification under HAMP.FN 4 To the extent that Nolasco's allegation contends that defendants had an obligation to offer her a HAMP loan modification, that allegation must be grounded in an assertion that she is a third-party beneficiary of the servicing...

...burden to present facts evidencing legislative intent to provide borrowers with a cause of action for breach of contract under HAMP. As courts in this district have held, borrowers do not have standing to challenge compliance with the Guidelines, and in......


Masuku v. Bank of America, N.A.,
Not Reported in F.Supp.2d, 2012 WL 3528006, S.D.Tex., August 14, 2012 (NO. CIV.A. H-11-1443)

...that the Foreclosure Violated HAMP Guidelines Masuku also challenges the foreclosure on the ground that “Defendant failed to follow the HAMP guidelines and failed to offer the Plaintiffs the HAMP alternative before foreclosing on the homestead property.”FN 56 Barrett Daffin and BOA seek summary judgment on this cause of action, arguing that Masuku has no private right of action for violation of the Home Affordable Modification Program (“HAMP”).FN 57 [ FN56.] Masuku's Petition, Exhibit C–2 to Defendant's Notice of Removal, Docket Entry No. 1–3, p. 7 ¶...

...5–6; BOA's MSJ, Docket Entry No. 18, pp. 7–8. Numerous courts have held that a borrower has no private right of action to assert a HAMP violation. E.g., Cade v. BAC Home Loans Servicing, LP, 2011 WL 2470733, at *5 (S.D.Tex. June 20, 2011) “There is no private right of action under HAMP. Only the government can enforce compliance with HAMP regulations, and it is not required to do so.” ) (internal citation omitted); Denley v. Vericrest Fin., Inc., 2012 WL 2368325...

...Home Loans Servicing, LP, 2012 WL 3185968, at *9 (S.D.Tex. August 2, 2012) Even if Barrett Daffin and BOA were HAMP participants who failed to comply with HAMP guidelines, Masuku as the borrower has no cause of action for Barrett Daffin's and BOA's alleged HAMP violations. The court concludes that Barrett Daffin and BOA are entitled to summary judgment on Masuku's HAMP violation claim. IV. Conclusion For the reasons stated above, the court concludes that there are no genuine questions of material......


King v. HSBC Bank USA, N.A.,
Not Reported in F.Supp.2d, 2012 WL 3204190, W.D.Tex., August 03, 2012 (NO. SA-12-CV-592-XR)

...complaint. Based on the motion for injunction, it appears that Plaintiff is asserting either a private cause of action under HAMP/MHA or claims as a third-party beneficiary of Defendants' contract to participate in HAMP.FN 7 However, courts have routinely rejected such claims. See Miller v. Chase Home Finance, LLC, 677 F.3d 1113 (11th Cir.2012) (concluding that no private right of action exists under HAMP); Denley v. Vericrest Financial, Inc., Civ. A. No. H–12–992, 2012 WL 2368325, at *2 (S.D.Tex. June 21, 2012) “While the goal of HAMP is to facilitate relief for homeowners, HAMP does not confer upon mortgagors a private right of action.” Easley v. Fed. Nat'l Mortgage Ass'n, Civ. A. No. 4:10–CV–3734, 2011 WL 6002644 (S.D.Tex. Nov.30, 2011...

...L.P., No. 4:10–CV–667, 2011 WL 4421946 (E.D.Tex. Aug. 30, 2011) (dismissing plaintiff's claims for negligence because no private right of action for borrowers exists under HAMP); Cade v. BAC HomeLoans Serv., LP, No. H–10–4224, 2011 WL 2470733, at *2 (S.D.Tex. June 20, 2011) (declining to find a private right of action under HAMP and observing that the majority of courts have “declined to find a private right, and further rejected the theory that borrowers are intended third-party beneficiaries of the HAMP Servicer Participation Agreement” Akintunji v. Chase Home Finance L.L.C., No. H–11–389, 2011 WL 2470709, at *4 (S.D.Tex. June 20, 2011) “There is no private cause of action under HAMP.” Singh v. Wells Fargo Bank, No. 1:10–CV–1659 AWI SMS, 2011 WL 66167, at *7 (E.D.Cal.Jan.7, 2011) “[I]t is well established that there is no private cause of action under HAMP.” Hart v. Countrywide Home Loans, Inc., 735 F. Supp .2d 741, 748 (E.D.Mich.2010) (noting that there is no express or implied right to sue fund recipients under HAMP because HAMP does not create a private right of action); Zeller v. Aurora Loan Servs., LLC, No. 3: 10cv00044, 2010 WL 3219134, at *1 (W.D.Va. Aug.10, 2010) (determining that HAMP does not create a private right of action for a borrower to recover for an alleged breach of a loan modification); Wright v. Bank of Am., N.A., No. CV10–01723 JF (HRL), 2010 WL 2889117, at *4 (N.D.Cal. July 22, 2010) (stating that it is “obvious that [HAMP] does not secure an enforceable right for [borrowers]” Hoffman v. Bank of Am., N.A., No. C10–2171 SI, 2010 WL...

...2635773, at *5 (N.D.Cal. June 30, 2010) “Lenders are not required to make loan modifications for borrowers that qualify under HAMP nor does the servicer's agreement confer an enforceable right on the borrower.” Simon v. Bank of Am., N.A., No. 10......


Kiper v. BAC Home Loans Servicing, LP,
884 F.Supp.2d 561, S.D.Tex., August 02, 2012 (NO. CIV.A. H-11-3008, CIV.A. H-11-3363)

...Parties 266k 215 Actions for Damages 266k 216 k. Between parties to mortgage or their privies. Home Affordable Modification Program (HAMP) does not create a private right of action against lenders and servicers. Emergency Economic Stabilization Act of 2008, Div. A, § 2 12 U.S.C.A. § 5201 [11] 379...

...complains that the loan servicers failed to give him a loan modification in accordance with the Home Affordable Modification Program (“HAMP”), 12 U.S.C. § 5201 HAMP does not create a private right of action against lenders and servicers. The Court agrees. See, e.g., Miller v. Chase Home Finance, LLC, 677 F.3d 1113 (11th...

...2011 WL 5057099, *2–3 (S.D.Tex. Oct. 24, 2011) (collecting cases to show “the majority of courts have held that HAMP does not create a private right of action in a borrower” No Implied Private Right of Action Under HAMP, 15 Consumer Financial Services Law Report 5 (2012) Here, too, the Court agrees. [11] [12] Next Defendants urge the Court......


Denley v. Vericrest Financial, Inc.,
Not Reported in F.Supp.2d, 2012 WL 2368325, S.D.Tex., June 21, 2012 (NO. CIV.A. H-12-992)

...founded upon two alternative theories. First, Plaintiff alleges that Defendant, as a mortgage servicer under the Home Affordable Mortgage Program (“HAMP”), 12 U.S.C. § 5201, et seq., breached a contractual duty to “review and process all [modification] applications in a fair and objective fashion.”FN 8 Plaintiff alleges she has satisfied all necessary requirements for a HAMP mortgage modification, and Defendant failed to meet its contractual requirements under HAMP.FN 9 While the goal of HAMP is to facilitate relief for homeowners, HAMP does not confer upon mortgagors a private right of action. See Cade v. BAC Home Loans Servicing, LP, No. H–10–4224, 2011 WL 2470733, at *5 (S.D.Tex. June 20, 2011) (Miller, J.) ( “Only the government can enforce compliance with HAMP regulations, and it is not required to do so.” see also Easley v. Fed. Nat. Mortg. Ass'n, No. 4:10...

...E.D.Tex. Aug.30, 2011) (Mazzant, M.J.) (collecting cases). Because there is no private cause of action for a violation of HAMP regulations, a breach of contract claim founded upon those regulations must be dismissed. [ FN8.] Document No. 1, ex. B–8......


Dempsey v. U.S. Bank Nat.,
Not Reported in F.Supp.2d, 2012 WL 2036434, E.D.Tex., June 06, 2012 (NO. 4:10CV679)

...the Note. MHA, HAMP and FIRREA Claims Defendants move for summary judgment on these claims asserting that there is no private right of action under MHA, HAMP, or FIRREA. Plaintiffs' Response fails to address their claims. This Court has already ruled that a borrower has no private right of action under MHA or HAMP. Pardy v. Chase Home Fin., L.L. C. No. 4:10–CV–684, 2012 WL 488708, at *4 (E.D.Tex. Jan.23......


Hanna v. RFC Deutsche Bank Nat. Trust Co.,
Not Reported in F.Supp.2d, 2012 WL 1969948, N.D.Tex., May 31, 2012 (NO. 3:11-CV-00346-BF)

...a last minute attempt to base their wrongful foreclosure claim on an alleged violation of the Home Affordable Modification Program (“HAMP”) and/or the Home Affordable Foreclosure Alternatives Program (“HAFA”), Plaintiffs did not plead claims under these acts, and indeed a private right of action does not exist under the acts. See Strange v. Flagstar Bank, FSB, 2012 WL 987484, at *2 (N.D.Tex. Mar. 22......



Cruz v. CitiMortgage, Inc.,
Not Reported in F.Supp.2d, 2012 WL 1836095, N.D.Tex., May 21, 2012 (NO. 3:11-CV-2871-L)

...this are included in Plaintiffs' pleadings. Plaintiffs' loan modification claim appears to be based on the Home Affordable Modification Program (“HAMP”). The vast majority of courts that have addressed similar claims by plaintiffs asserting entitlement to a permanent HAMP modification, based on a variety of different legal theories, have universally rejected these claims on the ground that HAMP does not create a private right of action for borrowers against lenders and servicers. See Geske v. Wells Fargo Bank, Nat'l Ass'n, No. 3:11–CV–3337–L...

...by monetary damages for their alleged loss. See Geske, 2012 WL 1231835, at *6 . The court therefore concludes that Plaintiffs' HAMP claim fails as a matter of law and should be dismissed. V. Injunctive Relief CitiMortgage contends that because Plaintiffs have......


Alsobrook v. GMAC Mortg., LLC,
Not Reported in F.Supp.2d, 2012 WL 1643220, N.D.Tex., April 13, 2012 (NO. 3:11-CV-00603-M BF)

...contract. Finally, Plaintiff makes a claim that Defendants failed to refinance Plaintiff's loan under the federal Home Affordable Modification Program (“HAMP”). (Pl.'s Pet. at ¶¶ 19–20.) Plaintiff asserts that she provided all the necessary information to GMAC, thus “[i]t is understandable that [she] cannot fathom why she has not received a HAMP refinance on her home's mortgage.” Id. However, Plaintiff fails to point to any contractual clause which guaranteed refinancing under HAMP, nor does she cite to any case law which supports a right to refinancing under HAMP. Instead, the Southern and Eastern Districts of Texas have both held that there is no private right of action for borrowers for failure to receive a HAMP modification. See Cade v. BAC HomeLoans Serv., LP, No. H–10–4224, 2011 WL 2470733, at *2 (S.D.Tex. June 20...

...to demonstrate that Defendants breached their contract or that Plaintiff has a right of action for failure to receive a HAMP modification. In sum, the Court finds that Plaintiff cannot prove a necessary element of a breach of contract claim, that......


Geske v. Wells Fargo Bank, Nat. Ass'n,
Not Reported in F.Supp.2d, 2012 WL 1231835, N.D.Tex., April 12, 2012 (NO. 3:11-CV-3337-L)

...to Dismiss Defendants contend that dismissal of this action under Rule 12(b) (6) is appropriate, because Plaintiffs have no private right of action to enforce HAMP. Because they have no viable cause of action under HAMP, Defendants argue that Plaintiffs' request for injunctive relief also fails. Plaintiffs do not address the various legal arguments or cases...

...Complaint does not refer to any alleged verbal agreements. The court thus considers only whether Plaintiffs' specific performance of the HAMP Agreement can survive dismissal under Rule 12(b)(6) In Texas, “[s]pecific performance is an equitable remedy that may be...

...the issue; however, the vast majority of courts that have addressed similar claims by plaintiffs asserting entitlement to a permanent HAMP modification, based on a variety of different legal theories, have universally rejected these claims on the ground that HAMP does not create a private right of action for borrowers against lenders and servicers. See Pennington v. HSBC Bank USA, Nat'l Ass'n, No. A–10–CA–785 LY......


Montalvo v. Bank of America Corp.,
864 F.Supp.2d 567, W.D.Tex., March 30, 2012 (NO. SA-10-CV-360-XR)

...possibly other loan modifications as a result of Defendant's wrongful conduct. [ FN14.] The foreclosure appears to be a violation of HAMP procedures, since lenders are not permitted to foreclosure during the loan modification process, and Plaintiff's evidence shows that she was in compliance with her obligations for the loan modification process at the time BAC foreclosed. Plaintiff cannot assert a private right of action under HAMP, but it appears relevant to whether Plaintiff reasonably relied on Defendants' representations that she need not cure the default and that no foreclosure would occur during the HAMP process. Because Defendants did not expressly move for summary judgment on this claim, it remains pending. Defendant may file an......


Strange v. Flagstar Bank, FSB,
Not Reported in F.Supp.2d, 2012 WL 987584, N.D.Tex., March 22, 2012 (NO. 3:11-CV-2642-B)

...N.A., No. C 10–05138 WHA, 2012 WL 27783, at *1(N.D.Cal. Jan.5, 2012) Litigation involving banks' compliance with HAMP is evolving, but is not unchartered territory. Judge Miller of the United States District Court for the Southern District of Texas recently summarized the current view of HAMP litigation as follows: [T]he majority of courts faced with HAMP questions have determined that no private right of action to enforce lender compliance exists under HAMP. This majority has declined to find a private right, and further rejected the theory that borrowers are intended third-party beneficiaries of the HAMP Servicer Participation Agreement (“SPA”), an agreement that incorporates obligations arising under the Emergency Economic Stabilization Act, and records a loan...

...U.S. Dist. LEXIS 125235, 2009 WL 3738177 (S.D.Cal. November 5, 2009) , (finding a claim of breach of contract of the HAMP SPA based on a third-party beneficiary theory to be plausible)). This Court finds Judge Miller's reasoning in Cade persuasive......


Pardy v. Chase Home Finance, L.L.C.,
Not Reported in F.Supp.2d, 2012 WL 488708, E.D.Tex., January 23, 2012 (NO. 4:10-CV-684)

...not provide Plaintiff with a good or service under the DTPA; and (5) Plaintiff's claims fail because there is no private right of action under the Making Home Affordable Program (“HAMP”). Motion for Summary Judgment (“MSJ”) at 2–3. Defendant first argues that Plaintiff's breach of contract claim and claims under...

...Plaintiff is not a “consumer” with respect to the home loan or modification. Finally, Defendant argues that there is no private right of action under HAMP. The Court agrees; however, Plaintiff is not asserting a private right of action under HAMP, and this argument is moot. Motion to Strike Plaintiff's Request for Jury Trial Defendant asserts that Plaintiff's request for a......


Mahmood v. Bank of America, N.A.,
Not Reported in F.Supp.2d, 2012 WL 527902, N.D.Tex., January 18, 2012 (NO. 3:11-CV-3054-M-BK)

...a duty of good faith and fair dealing in their transactions. Finally, to the extent Plaintiff makes a claim under HAMP, such claim fails because HAMP does not create a private right of action. Easley v. Federal Nat. Mortg. Ass'n, No. 4:10–CV–3734, 2011 WL 6002644 at *5 (S.D.Tex.2011) (collecting cases......


Easley v. Federal Nat. Mortg. Ass'n,
Not Reported in F.Supp.2d, 2011 WL 6002644, S.D.Tex., November 30, 2011 (NO. 4:10-CV-03734)

...acted upon. Therefore, BANA is entitled to summary judgment on Easley's fraud claim. Finally, Easley asserts that the foreclosure violated HAMP. As there is no private cause of action under HAMP, Easley's HAMP claim fails. Cade v. BAC Home Loans Servicing, LP, No. H–10–4224, 2011 WL 2470733, at *2–3 (S.D.Tex...

...L.P., No. 4:10–CV–667, 2011 WL 4421946 (E.D.Tex. Aug. 30, 2011) (dismissing plaintiff's claims for negligence because no private right of action for borrowers exists under HAMP); Cade v. BAC HomeLoans Serv., LP, No. H–10–4224, 2011 WL 2470733, at *2 (S.D.Tex. June 20, 2011) (declining to find a private right of action under HAMP and observing that the majority of courts have “declined to find a private right, and further rejected the theory that borrowers are intended third-party beneficiaries of the HAMP Servicer Participation Agreement” Akintunji v. Chase Home Finance L.L.C., No. H–11–389, 2011 WL 2470709, at *4 (S.D.Tex. June 20, 2011) “There is no private cause of action under HAMP.” Singh v. Wells Fargo Bank, No. 1:10–CV–1659 AWI SMS, 2011 WL 66167, at *7 (E.D.Cal. Jan.7, 2011) “[I]t is well established that there is no private cause of action under HAMP.” Hart v. Countrywide Home Loans, Inc., 735 F.Supp .2d 741, 748 (E.D.Mich.2010) (noting that there is no express or implied right to sue fund recipients under HAMP because HAMP does not create a private right of action); Zeller v. Aurora Loan Servs ., LLC, No. 3:10cv00044, 2010 WL 3219134, at *1 (W.D.Va. Aug.10, 2010) (determining that HAMP does not create a private right of action for a borrower to recover for an alleged breach of a loan modification); Wright v. Bank of Am., N.A., No. CV10–01723 JF (HRL), 2010 WL 2889117, at *4 (N.D.Cal. July 22, 2010) (stating that it is “obvious that [HAMP] does not secure an enforceable right for [borrowers]” Hoffman v. Bank of Am., N.A., No. C10–2171 SI, 2010 WL...

...2635773, at *5 (N.D.Cal. June 30, 2010) “Lenders are not required to make loan modifications for borrowers that qualify under HAMP nor does the servicer's agreement confer an enforceable right on the borrower.” Simon v. Bank of Am., N.A., No. 10......


Christensen v. Bank of America, N.A.,
Not Reported in F.Supp.2d, 2011 WL 7070568, N.D.Tex., November 04, 2011 (NO. 5:10-CV-176-C)

...denial of his HAMP application. Whether or not Plaintiff's application was reviewed properly is of no moment. Defendants argue that HAMP does not create a private right of action, and the Court agrees. See Cade v. BAC Home Loans Serv., L.P., No. H–10–4224, 2011 U.S. Dist. LEXIS 65045, at *6–8 & n. 2 (S.D.Tex. June 20, 2011) “[T]he majority of courts faced with HAMP questions have determined that no private right of action to enforce lender compliance exists under HAMP.” ) (collecting cases). Because Defendants' treatment of Plaintiff's HAMP application is not actionable as a matter of law, the Court GRANTS Defendants' Motion for Summary Judgment as to this......


Backal v. Wells Fargo,
Not Reported in F.Supp.2d, 2011 WL 5999044, E.D.Tex., November 03, 2011 (NO. 4:11-CV-563)

...claim. Scanlan, 343 F.3d at 536 Analysis Wells Fargo asserts that Plaintiff's alleged claim against it for violation of HAMP and its foreclosure alternatives program, HAFA, must be dismissed because it is well settled that there is no private right of action available to Plaintiff under HAMP, and because Plaintiff cannot show he is an “eligible borrower” under HAMP. The Court agrees. See Cade v. BAC Home Loans Servicing, LP, No. H–10–4224, 2011 WL 2470733, at *2...

...H–11–389, 2011 WL 2470709, at *4 (S.D.Tex. Jun.20, 2011) Because HAFA is part of and subject to HAMP guidelines, it follows that there is no private right of action available to Plaintiff under HAFA. Therefore, Plaintiff's apparent claim for violation of the HAMP/HAFA guidelines is inherently defective, and fails as a matter of law. Furthermore, Plaintiff does not meet the requirements for eligibility under HAMP per the publicly available HAMP guidelines. In order to be considered eligible for any of the homeowner relief options under HAMP, Plaintiff must occupy the Property as his primary residence. Wells Fargo also moves to dismiss Plaintiff's claim for injunctive relief......


Hung Quang Tran v. BAC Home Loans Servicing, LP,
Not Reported in F.Supp.2d, 2011 WL 5057099, S.D.Tex., October 24, 2011 (NO. 4:10-CV-03514)

...III. ANALYSIS Although the Fifth Circuit has yet to rule on the issue, the majority of courts have held that HAMP does not create a private right of action in a borrower. Mortberg v. Litton Loan Servicing, L.P., No. 4:10–CV–667, 2011 WL 4421946 (E.D.Tex. Aug. 30, 2011) (dismissing plaintiff's claims for negligence because no private right of action for borrowers exists under HAMP); Cade v. BAC HomeLoans Serv., LP, No. H–10–4224, 2011 WL 2470733, at *2 (S.D.Tex. June 20, 2011) (declining to find a private right of action under HAMP and observing that the majority of courts have “declined to find a private right, and further rejected the theory that borrowers are intended third-party beneficiaries of the HAMP Servicer Participation Agreement” Akintunji v. Chase Home Finance L.L.C., No. H–11–389, 2011 WL 2470709, at *4 (S.D.Tex. June 20, 2011) “There is no private cause of action under HAMP.” Singh v. Wells Fargo Bank, No. 1:10–CV–1659 AWI SMS, 2011 WL 66167, at *7 (E.D.Cal. Jan.7, 2011) “[I]t is well established that there is no private cause of action under HAMP.” Hart v. Countrywide Home Loans, Inc., 735 F.Supp.2d 741, 748 (E.D.Mich.2010) (noting that there is no express or implied right to sue fund recipients under HAMP because HAMP does not create a private right of action); letter v. Aurora Loan Servs., LLC, No. 3:10cv00044, 2010 WL 3219134, at *1 (W.D.Va. Aug.10, 2010) (determining that HAMP does not create a private right of action for a borrower to recover for an alleged breach of a loan modification); Wright v. Bank of Am., N.A., No. CV10–01723 JF (HRL), 2010 WL 2889117, at *4 (N.D.Cal. July 22, 2010) (stating that it is “obvious that [HAMP] does not secure an enforceable right for [borrowers]” Hoffman v. Bank of Am., N.A., No. C10–2171 SI, 2010 WL...

...2635773, at *5 (N.D.Cal. June 30, 2010) “Lenders are not required to make loan modifications for borrowers that qualify under HAMP nor does the servicer's agreement confer an enforceable right on the borrower.” Simon v. Bank of Am., N.A., No. 10...

...cv–00300–GMN–LRL, 2010 WL 2609436, at *10 (D.Nev. June 23, 2010) “Other courts have consistently held that the [HAMP] does not provide borrowers with a private cause of action against lenders.” Marks v. Bank of Am., N.A., No. 03......


Mortberg v. Litton Loan Servicing, L.P.,
Not Reported in F.Supp.2d, 2011 WL 4431946, E.D.Tex., August 30, 2011 (NO. 4:10-CV-668)

...this claim because it is barred by the economic loss doctrine. Further, Litton asserts that the Home Affordable Modification Program (“HAMP”) does not create a private right of action, and Plaintiff's pleadings are insufficient to state a claim for relief. The acts of a party to a contract may...

...for negligent loan processing and foreclosure should be dismissed. Litton also argues that Plaintiff's negligence claims should be dismissed because HAMP does not create a private right of action in a borrower. The Court agrees. The majority of courts that have addressed questions related to HAMP found that no private right of action for borrowers exist. Cade v. BAC HomeLoans Serv., LP, No. H–10–4224, 2011 WL 2470733, at *2 (S.D.Tex. June...

...v. Aurora Loan Servs., LLC, Civil No. 3:10cv00044, 2010 WL 3219134, at *1 (W.D.Va. Aug.10, 2010) (noting that HAMP does not create a private right of action for a borrower to recover for an alleged breach of a loan modification); Wright v. Bank of Am., N.A., No. CV 10–01723 JF (HRL), 2010 WL 2889117, at *4 (N.D.Cal. July 22, 2010) “It is obvious that [HAMP] does not secure an enforceable right for [borrowers]. A loan modification is never guaranteed.” Adams v. U.S. Bank, No. 10......


Cade v. BAC Home Loans Servicing, LP,
Not Reported in F.Supp.2d, 2011 WL 2470733, S.D.Tex., June 20, 2011 (NO. CIV.A. H-10-4224)

...in their briefings. Dkt. 17 ¶ 11, Dkt. 10 at 5. The court, therefore, applies Texas law in this matter. HAMP is a program established by the U.S. Department of the Treasury, the Federal Housing Finance Agency, Fannie Mae, and Freddie...

...Mac, pursuant to the authority provided in the Emergency Economic Stabilization Act of 2008. 12 U.S.C. § 5201 et seq. HAMP litigation is new and yet emerging; the majority of courts faced with HAMP questions, however, have determined that no private right of action to enforce lender compliance exists under HAMP.FN 2 This majority has declined to find a private right, and further rejected the theory that borrowers are intended third-party beneficiaries of the HAMP Servicer Participation Agreement (“SPA”), an agreement that incorporates obligations arising under the Emergency Economic Stabilization Act, and records a loan...

...3d 150, 163 (Tex.App.-San Antonio, 2008, pet. denied) (collecting cases). BACHLS argues in its motion to dismiss that a HAMP claim forms the underlying basis of the Cades' claim of estoppel, and recites again the absence of a private right of action for borrowers under HAMP. Dkt. 10 at 7. BACHLS then attacks the existence of an enforceable promise in BACHLS's alleged promise to “consider [the......
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416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association

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