Foreclosure Defense: Wachovia Knows About Fraud








Wachovia Corporation

JB Reed/Bloomberg News

The Wachovia Corporation was formed through a series of mergers over the years that not only made it one of the country’s largest financial institutions, but earned it a reputation as an acquisition machine. In 2006, it bought Golden West Financial, one of the last major independent banks on the West Coast, in a $26 billion deal. In May 2007, it swallowed up A. G. Edwards in a $6.8 billion deal that made Wachovia Securities the country’s second-largest retail broker after Merrill Lynch.

The month before the A.G. Edwards deal, an article in The New York Times detailed how Wachovia had provided bank services to fraudulent telemarketers who bilked the elderly of hundreds of millions of dollars. When the company was accused in a lawsuit of allowing such firms to use the bank’s accounts to steal the money, bank executives said they had been unaware of the thefts.

But documents from that lawsuit released in February 2008 showed that Wachovia had long known about allegations of fraud and that the bank, in fact, solicited business from companies it knew had been accused of telemarketing crimes.

Internal Wachovia e-mail, for example, showed that high-ranking employees at the nation’s fourth-largest bank frequently warned colleagues about telemarketing frauds routed through its accounts.The documents also showed that Wachovia was alerted by other banks and federal agencies about ongoing deceptions, but that it continued to provide banking services to multiple companies that helped steal as much as $400 million from unsuspecting victims.

–Feb. 6, 2008

The settlement, one of the largest penalties ever demanded by the federal Office of the Comptroller of the Currency, concludes an 18-month inquiry into Wachovia’s relationships with schemes that investigators say stole from thousands of victims, many of them elderly.

Though Wachovia did not admit or deny wrongdoing, the investigation found that Wachovia, one of the country’s largest banks, engaged in unsafe practices — failing to conduct suitable due diligence, failing to monitor accounts used by telemarketers and failing to follow normal procedures that would probably have uncovered the thefts.

The bank’s actions were “part of a pattern of misconduct” that resulted in Wachovia’s collecting millions of dollars in fees, regulators wrote.

Wachovia has agreed to pay a $10 million fine, contribute $8.9 million to consumer education programs and make restitution to victims that could top $125 million. In a statement, the bank said this “situation was unacceptable and we regret it happened.”

Last summer, after The New York Times reported the telemarketing schemes, Wachovia introduced fraud protections that now preclude the company from working with most telemarketers, a spokeswoman said.

The settlement on Friday does not cover a pending lawsuit against Wachovia filed by plaintiffs who said they were victims of the frauds.

Internal Wachovia e-mail messages and documents collected as part of that lawsuit showed that high-ranking employees long knew about accusations of fraud, but that some bank workers continued to solicit business from the telemarketing companies accused of crimes.

“YIKES!!!!” wrote one Wachovia executive in 2005, warning colleagues that an account used by telemarketers had drawn 4,500 complaints. “DOUBLE YIKES!!!!” But Wachovia continued processing fraudulent transactions for that account and others.

The settlement also does not preclude the United States attorney in Philadelphia, Patrick L. Meehan, from prosecuting Wachovia or bank employees. Mr. Meehan’s office is considering a criminal investigation, according to two people close to the matter who spoke on the condition of anonymity because they are not authorized to speak to the media.

A representative for Mr. Meehan said his office did not confirm the existence of investigations. In 2006, Mr. Meehan prosecuted one of the companies that had relied on Wachovia to commit fraud. That action did not name Wachovia as a defendant, but did show that the bank had received and ignored thousands of warnings.

“This is an important development, and it will have an effect on the industry,” said Tom Miller, the attorney general of Iowa, who also helped expose the crimes as part of a statewide investigation into telemarketing frauds. “These types of crimes are still occurring every day.”

On Friday, the Office of the Comptroller of the Currency also released new guidance to banks on monitoring accounts used by telemarketers. In particular, the agency said that banks should scrutinize so-called payment processors, companies that criminal telemarketers rely upon to make unauthorized withdrawals from victims’ accounts.

The settlement, however, was not wholly greeted with applause.

Some critics of the settlement’s structure — including Representative Edward J. Markey, a Massachusetts Democrat and a senior member of the House Energy and Commerce Committee — complained that the agreement contained no guarantee that victims would be paid.

Under the terms of the settlement, victims will not automatically receive compensation from Wachovia. Instead, they will have to submit claims through a complicated bureaucracy. Because many of the victims are elderly or poorly educated, it is likely many of them will stymied by these obstacles, Mr. Markey said.

In previous cases, the comptroller’s office, also known as the O.C.C., has mailed checks to victims of fraud, rather than requiring them to file claims.

5 Responses

  1. *The Honorable Richard D. Cudahy, United States Circuit Judge for the Seventh Circuit,sitting by designation.NOT RECOMMENDED FOR FULL-TEXT PUBLICATIONFile Name: 06a0438n.06Filed: June 27, 2006No. 05-5750UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUITMARK HINTON,Plaintiff-Appellant,v.WACHOVIA BANK OF
    MORTGAGE CORPORATION,Defendants-Appellees._______________________________________)
    DISTRICT OF TENNESSEEO P I N I O NBefore: MOORE, GRIFFIN, and CUDAHY,*Circuit Judges.KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Mark Hinton appeals thedismissal, pursuant to a motion for summary judgment, of his claims for breach of contract andintentional infliction of emotional distress (“IIED”) under Tennessee law and for violation of theTennessee Consumer Protection Act (“TCPA”), TENN.CODE ANN.§ 47-18-104, against Defendants-Appellees Wachovia Bank of Delaware National Association (“Wachovia Bank”) and WachoviaMortgage Corporation (“Wachovia Corporation”) (collectively referred to as “Wachovia”). BecauseHinton breached the agreement he had with Wachovia and therefore suffered no damages from any2of Wachovia’s alleged wrongdoing, and because Wachovia’s conduct was not outrageous, weAFFIRM the grant of summary judgment.I. BACKGROUNDIn November 1998, Hinton and his then wife refinanced their home with HomEq, and in sodoing executed a Fixed Rate Note (“Note”) and a Deed of Trust (“Deed”). Wachovia Bank is thenote holder, and Wachovia Corporation services Wachovia Bank’s loans as HomEq. Hinton andhis wife divorced in 2001, and Hinton took full interest in their home. Under the Note, Hinton wasto make 360 consecutive monthly payments of $793.93 by the thirtieth day of each month. The Notestated that a default entitled Wachovia “to declare the entire unpaid balance of this writtenindebtedness due and payable at once and to foreclose any Security Instrument securing this Note.”Joint Appendix (“J.A.”) at 132 (Note at 2). Additionally, the Note provided that the “[f]ailure toexercise this option shall not constitute a waiver of the right to exercise the same in the event of asubsequent default.” Id.By January 2001, Hinton had defaulted on this agreement by making late payments, and thenfurther defaulted by failing to pay his 2001 property taxes. To protect its security interest in theproperty, Wachovia advanced the funds to pay the property taxes. HomEq notified Hinton that hewas in default on the basis of the late payments and the failure to pay property taxes and that hisproperty was at risk of foreclosure. Hinton then filed for bankruptcy. Wachovia did not take anyforeclosure action.On February 7, 2002, Hinton and Wachovia entered into their first of three DefaultForbearance Agreements (“DFA”). Each of these DFAs states that “Lender is not discontinuingforeclosure,” but “is only holding further foreclosure action in abeyance as long as the Borrower1Combined with the other charges owed by Hinton listed in the February DFA, Hinton oweda total of $8226.38. The $345.91 payment multiplied by the eighteen payments listed in the DFA
    plus the $2000 down payment equals $8226.38.3makes all regularly scheduled payments and arrears payments.” J.A. at 146 (Feb. DFA at 2), 149(May DFA at 2), 153 (Dec. DFA at 5). The DFAs also state that Wachovia can foreclose “without. . . mailing another demand/notice of intent to accelerate” if Hinton defaults. J.A. at 146 (Feb. DFAat 2), 149 (May DFA at 2), 153 (Dec. DFA at 5).The February DFA required Hinton to make a $2000 down payment by February 15, 2002and a monthly payment of $345.91 plus a “regular payment” by the tenth day of each monththereafter for eighteen months. J.A. at 145 (Feb. DFA at 1). The February DFA specifies thatHinton owed “7 Payment(s) due @ $793.94,” which totals $5557.58.1Id. Under the February DFA,Hinton’s monthly payment was $1139.85, which was $345.91 plus the “regular payment” of$793.94. Id. Hinton paid the $2000 down payment on February 15, 2002. However, Hinton’s nextpayment was not until April 3, 2002, when he made a payment of $1150. Hinton then made apayment of $1150 on May 13, 2002. This put Hinton in default of the February DFA for failing tomake timely payments in March, April, and May. Hinton received a letter notifying him that hishouse was subject to foreclosure.Hinton then entered into a second DFA with Wachovia on May 22, 2002. Under the MayDFA, Hinton was to pay a $1900 down payment by May 22, 2002, and then monthly payments of$389.66 plus a “regular payment” by the twenty-fifth day of each month thereafter for eighteenmonths. J.A. at 24-26 (May DFA at 1-3). The May DFA specified that Hinton owed “8 regular2In combination with the other charges Hinton owed, the May DFA states that Hinton owedWachovia a total of $8932.05. The $389.66 payment multiplied by the eighteen payments listed in
    the DFA plus the $1900 down payment equals $8913.88, which approximates the $8932.05 that
    Hinton owed under the May DFA.3It is not clear why the February DFA stated that the payment owed was $793.94, a one centincrease from the $793.93 required by the Note.4Additionally, although Hinton made his July payment on July 25, it did not post until July26, one day late.4payments,” which was followed by $7101.77.2Id. The May DFA does not specifically state a dollaramount for the “regular payment.” Id. The parties dispute the amount of the “regular payment”under the May DFA. Wachovia claims that it is $887.72, which is the $7101.77 divided by the eightpayments. Hinton claims that it continued to be $793.93 or $793.94,3as specified in the Note.Under Wachovia’s view, Hinton owed $1277.38 per month; under Hinton’s view, Hinton owed$1183.60 per month. The parties additionally dispute whether Hinton made the $1900 downpayment. As stated above, Hinton made a payment of $1150 on May 13, 2002, and then anotherpayment of $1150 on May 22, 2002. Hinton then made monthly payments of $1200 on June 25, July25, August 22, September 25, and October 24 of 2002. Wachovia accepted each of these paymentsexcept the last, which it refused based on its belief that Hinton was in breach because Hinton’smonthly payments each fell short of what it believed to be the required monthly payment of$1277.38.4Hinton again received notice that his house was subject to foreclosure.Hinton then entered into a third DFA with Wachovia on December 11, 2002. The DecemberDFA stated that Hinton owed a $2130 down payment by December 10, 2002, as well as monthlypayments of $811.32 plus the “regular payment” by the twenty-fifth day of each month thereafter5Hinton owed a total of $11,865.86 under the December DFA. The $811.32 paymentmultiplied by the twelve payments listed in the DFA plus the $2130 down payment equals the
    $11,865.86 that Hinton owed under the December DFA.6The Supreme Court ruled earlier this year that for purposes of diversity jurisdiction, anational bank, such as the Defendant-Appellee Wachovia Bank, is a citizen of the state “designated
    in its articles of association as its main office,” and not of each state in which it operates. Wachovia
    Bank, N.A. v. Schmidt, 126 S. Ct. 941, 952 (2006) (construing 28 U.S.C. § 1348 (“All national
    banking associations shall . . . be deemed citizens of the States in which they are respectively
    located.”)). A corporation such as Defendant-Appellee Wachovia Corporation is a citizen both of
    the state or states in which it is incorporated and the state in which its principal place of business
    is located. 28 U.S.C. § 1332. Because Wachovia Bank’s main office is in North Carolina,
    Wachovia Corporation is incorporated in North Carolina and also has its principal place of business
    there, and Hinton is a citizen of Tennessee, diversity of citizenship provided a proper ground for
    removal. 28 U.S.C. §§ 1332, 1348, and 1441; Wachovia Bank, N.A., 126 S. Ct. at 952.7Although Hinton also asks us to consider whether the district court abused its discretion indenying his motion to alter or amend the judgment, Hinton did not file a Notice of Appeal covering
    that order, and thus we decline to decide this question.5for twelve months.5J.A. at 151 (Dec. DFA at 1). The December DFA specifies that Hinton owed“7 payments @ 1061.26,” which totaled $7428.82. Id. Hinton paid the $2130 down payment onDecember 10, 2002. He then made payments of $1720 on January 31, 2003, $155 on February 8,2003, and $1900 on March 7, 2003. On April 28, 2003, HomEq sent Hinton a letter notifying himthat his account was delinquent and that his home was under review for foreclosure. Foreclosureoccurred in June 2003.On September 10, 2003, Hinton filed a complaint against Wachovia in Tennessee state courtalleging breach of contract, intentional infliction of emotional distress, and violations of the TCPA.Wachovia filed a Notice of Removal to remove the case to the Eastern District of Tennessee, andthe case was properly removed.6On March 28, 2005, the district court granted Wachovia’s motionfor summary judgment on each of Hinton’s claims. Hinton filed a motion to alter or amend thejudgment, which the district court denied. Hinton appeals the March 28 judgment.76II. ANALYSISA. Standard of ReviewWe review de novo the district court’s dismissal of Hinton’s breach of contract, IIED, andTCPA claims pursuant to Wachovia’s motion for summary judgment. Johnson v. Karnes, 398 F.3d868, 873 (6th Cir. 2005). Summary judgment should be granted when “the pleadings, depositions,answers to interrogatories, and admissions on file, together with the affidavits, if any, show thatthere is no genuine issue as to any material fact and that the moving party is entitled to a judgmentas a matter of law.” FED.R.CIV.P.56(c). We review motions for summary judgment viewing allthe facts and the inferences drawn therefrom in the light most favorable to the nonmoving party.Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).When we review a summary judgment decision in a breach of contract case, we apply thefollowing “special interpretive framework”:“[A] contract can be interpreted by the court on summary judgment if (a) the
    contract’s terms are clear, or (b) the evidence supports only one construction of the
    controverted provision, notwithstanding some ambiguity. . . . If the court finds no
    ambiguity, it should proceed to interpret the contract — and it may do so at the
    summary judgment stage. If, however, the court discerns an ambiguity, the next step
    — involving an examination of extrinsic evidence — becomes essential. . . .
    Summary judgment may be appropriate even if ambiguity lurks as long as the
    extrinsic evidence presented to the court supports only one of the conflicting
    interpretations.”United Rentals (N. Am.), Inc. v. Keizer, 355 F.3d 399, 406 (6th Cir. 2004) (alteration and omissionsin original) (quoting Gencorp, Inc. v. Am. Int’l Underwriters, 178 F.3d 804, 818 (6th Cir. 1999)).B. Breach of ContractTo show a breach of contract under Tennessee law, a party must prove “(1) the existence ofa contract, (2) breach of the contract, and (3) damages [that] flow from the breach.” Life Care Ctrs.8Wachovia arrives at this calculation by taking the $389.66 per month payment specified inthe May DFA plus Hinton’s “regular payment” of $887.72. J.A. at 24 (May DFA at 1). Wachovia
    determines the “regular payment” to be $887.72 by dividing $7101.77, the total of the eight “regular
    payments,” by eight. Id.7of Am., Inc. v. Charles Town Assocs. Ltd. P’ship, LPIMC, Inc., 79 F.3d 496, 514 (6th Cir. 1996).The crux of Hinton’s breach claim is that Wachovia breached the May DFA by refusing to accepthis October 24, 2002 payment of $1200 and then initiating foreclosure proceedings on his house.Hinton also claims that Wachovia breached the May DFA by failing to specify the amount of the“regular payment” that he owed Wachovia. Neither party disputes that the May DFA constituteda contract between the parties.Wachovia claims that Hinton breached the May DFA in two ways: (1) by failing to makethe required $1900 down payment, and (2) by coming $77.38 short on each of his monthlypayments. In Wachovia’s view, Hinton owed $1277.38 per month but paid $1200 per month.8TheMay DFA to which Hinton and Wachovia agreed states that if Hinton breaches, Wachovia is entitledto foreclose on the property. On this basis, Wachovia contends that it was entitled to reject Hinton’sOctober payment and initiate foreclosure proceedings on the home.Hinton’s claim that Wachovia breached the May DFA by failing to state a sum certain forthe “regular payment” amount is without merit. Hinton cites no authority for this proposition, andwe have found none. An ambiguous term in the contract does not amount to a breach by the drafter.Rather, a significant disagreement over the meaning of a contract term could vitiate mutual assent,and thus no contract would ever have been formed. See Higgins v. Oil, Chem. & Atomic WorkersInt’l Union, Local #3-677, 811 S.W.2d 875, 879-81 (Tenn. 1991) (holding that both the lack ofmutual assent and the indefiniteness of contract terms negate the existence of a contract);8RESTATEMENT (SECOND)OF CONTRACTS § 20(1) (1981) (“There is no manifestation of mutual assentto an exchange if the parties attach materially different meanings to their manifestations and (a)neither party knows or has reason to know the meaning attached by the other; or (b) each partyknows or each party has reason to know the meaning attached by the other.”). Hinton does not makesuch arguments.Hinton contends that he did not fail to make the required down payment under the May DFA.He asserts that he made the down payment in two installments of $1150, paid on May 13, 2002 andMay 22, 2002. Wachovia counters that only the May 22 payment can be considered towards thedown payment of the May DFA because the May 13 payment was made before the May DFA wasentered into on May 22, 2002. Additionally, Wachovia argues that the May 13 payment cannot beseen as part of the down payment because it was in an amount — $1150 — that Hinton had beenpaying for his monthly payments under the February DFA.Hinton breached the May DFA by failing to make the requisite down payment of $1900. Thefirst payment of $1150 made on May 13, 2002 cannot be considered part of his down paymentbecause at the time he made that payment, the May DFA had not yet been created, and Hinton wasobligated at that time to pay this sum towards the February DFA. The May 13 payment musttherefore be seen as a monthly payment to fulfill his obligations under the February DFA, as he hadnot yet paid his May monthly payment under the February DFA. Because Hinton already owedWachovia that $1150 to meet his obligations under the February DFA, that $1150 payment cannotbe considered part of the down payment under the May DFA, which was not entered into until May22, 2002. The $1150 payment made on May 22 is $750 short of the required down-paymentamount. Hinton’s failure to pay the required down payment on the May DFA constituted a breach9Further exploration of this claim reveals that Hinton read and signed the May DFA, and heunderstood that he could be charged additional fees under the agreement. However, Hinton claims
    that he did not understand that the “regular payment” amount for each month’s payment under the
    May DFA was $887.72 rather than $793.94. Wachovia sent Hinton letters in February 2002 and
    December 2002 indicating that “[t]he noted reinstatement amount may change daily as additional
    legal costs, and late charges are incurred.” J.A. at 157 (Feb. 7, 2002 HomEq Letter), 158 (Dec. 10,
    2002 HomEq Letter). The $887.72 figure could be determined by a simple calculation of division,
    and could be fairly implied by “8 regular payments” followed by “$7101.77.” J.A. at 24 (May DFA
    at 1). It is also the case, however, that the May DFA does not make clear that this is the amount that
    should be applied to the “regular payment” that is paid each month. HomEq’s assistant vice
    president of the late-stage loss mitigation department suggested that Hinton’s “regular payment”
    beginning March 30, 2002 was $1061.26. In any event, Hinton’s breach of the May DFA for failure
    to pay the full down payment amount before the regular payments were due warranted Wachovia’s
    initiation of foreclosure proceedings.10Hinton also claims that Wachovia’s establishment of an escrow account constituted abreach because neither the Note nor the Deed expressly permit such action. However, neither
    document explicitly bars the use of an escrow account, and Hinton makes no argument as to why
    Wachovia should not be permitted to utilize an escrow account under the agreements that he entered
    with Wachovia. In any event, because Hinton has not stated any damages that the escrow account
    caused him, he cannot state a claim for breach on this ground. See Life Care Ctrs. of Am., 79 F.3d
    at 514 (concluding that damages are an essential element of a breach of contract under Tennessee
    law).9on his part, and this entitled Wachovia to foreclose on the property. Therefore, whether the MayDFA permits separate payments, as Hinton argues, is of no consequence.Hinton also argues that he made all of the required payments according to his understandingof the “regular payment” amount, and, therefore, he was not in breach, Wachovia was not entitledto initiate foreclosure proceedings, and Wachovia’s initiation of such proceedings amounts to abreach. We need not reach this issue because Hinton breached the contract by failing to make thedown payment before any regular payments were due, and Wachovia was entitled to foreclose onthis basis.9, 1010C. Tennessee Consumer Protection ActThe TCPA states that “[a]ny person who suffers an ascertainable loss of money or property,real, personal, or mixed, or any other article, commodity, or thing of value wherever situated, as aresult of the use or employment by another person of an unfair or deceptive act or practice declaredto be unlawful by this part, may bring an action individually to recover actual damages.” TENN.CODE ANN.§ 47-18-109(a)(1). The TCPA prohibits “unfair or deceptive acts or practices” affectingcommerce, including “[f]ailing to disclose that a charge for the servicing of any goods in whole orin part is based on a predetermined rate or charge, or guarantee or warranty, instead of the value ofthe services actually performed,” and “[e]ngaging in any other act or practice which is deceptive tothe consumer or to any other person.” Id. § 47-18-104(a), (b)(15), and (b)(27). A “deceptivepractice” can be demonstrated by evidence of “a material representation, practice or omission likelyto mislead a reasonable consumer.” Ganzevoort v. Russell, 949 S.W.2d 293, 299 (Tenn. 1997). Noshowing of deceptive intent is required. Menuskin v. Williams, 145 F.3d 755, 767-68 (6th Cir.1998).Hinton asserts that Wachovia’s adding charges to the “regular payment” amount withoutdisclosure and without giving Hinton a proper accounting of the additional charges or a sum certainthat reflected those additional charges violated the TCPA. In particular, Hinton takes issue withWachovia’s failure to specify the dollar amount of his “regular payment” under the May DFA andalleges that the charges for the “Corporate Advances Recoverable” were duplicative of expensesunder “Estimated Foreclosure Fees,” “Escrow Shortage,” “Miscellaneous Expenses,” and “LateCharges Due.” Appellant Br. at 26. Wachovia’s failure to state the sum certain of the “regularpayment” amount under the May DFA could mislead the reasonable consumer. It is not clear from11Wachovia’s conduct, even if deceptive, might not be covered by the TCPA because it isnot clear under Tennessee law that such actions related to a forebearance agreement would be seen
    as affecting commerce. See Pursell v. First Am. Nat’l Bank, 937 S.W.2d 838, 840-42 (Tenn. 1996)
    (holding that a claim for deception regarding lender’s repossession of debtor’s collateral was not
    covered by the TCPA but explicitly refraining from exempting banking activities from the TCPA).11the May DFA how much Hinton was supposed to pay each month. Even if Hinton were to dividethe $7101.77 amount by eight, it is still not clear that this amount refers to the forthcoming regularpayments rather than the eight missed regular payments that are part of the total arrears due. Wedo not understand why Wachovia would not state the payment obligations more clearly. Wachoviawould be well advised to do so in the future, as we have no sympathy for a lender that makes itdifficult for its debtors to comply with payment obligations. However, Hinton’s TCPA claim stillfails because the ambiguity as to the “regular payment” amount did not lead to any damages due tothe fact that Hinton breached the May DFA by failing to make the requisite down payment beforeany of the regular payments were due. See TENN.CODE ANN.§ 47-18-109(a)(1) (limiting coverageto those who sustain “an ascertainable loss of money or property”). Hinton failed to presentevidence that the corporate advances Wachovia sought to recover were duplicative of othercharges.11D. Intentional Infliction of Emotional DistressTo establish an IIED claim under Tennessee state law, a plaintiff must demonstrate that: “(1)the defendant’s conduct was intentional or reckless; (2) the defendant’s conduct was so outrageousthat it cannot be tolerated by civilized society; and (3) the defendant’s conduct resulted in seriousmental injury to the plaintiff.” Lourcey v. Estate of Scarlett, 146 S.W.3d 48, 51 (Tenn. 2004). Asuccessful claim requires showing that the defendant’s actions were “‘so outrageous in character,and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as12atrocious, and utterly intolerable in a civilized community.’” Id. (quoting Miller v. Willbanks, 8S.W.3d 607, 614 (Tenn. 1999)).Hinton describes the following mental anguish he suffered as a result of Wachovia’s conduct:“I couldn’t sleep, I couldn’t eat, I couldn’t hardly work, . . . breaking out in hives, and like I say, youcan’t eat, can’t sleep, wake up in the middle of the night ‘cause it’s always on my mind; still is.”J.A. at 121 (Hinton Dep. at 82). As discussed above, Wachovia was entitled to initiate foreclosureproceedings on Hinton’s home based on Hinton’s failure to pay the full amount of the down paymentunder the May DFA. Therefore, the only conduct of Wachovia of which Hinton can complain is itsfailure to state a sum certain for the “regular payment” amount under the May DFA. This failurecannot be deemed “so outrageous” as to exceed “all possible bounds of decency.” Lourcey, 146S.W.3d at 51; see also Menuskin, 145 F.3d at 768. Moreover, although Hinton need not provideexpert proof to support his IIED claim, Hinton’s testimony regarding his mental distress does notdemonstrate that it was “so severe that no reasonable [person] could be expected to endure it,” asrequired to state an IIED claim under Tennessee law. Miller v. Willbanks, 8 S.W.3d 607, 615 n.4(Tenn. 1999) (quoting RESTATEMENT (SECOND)OF TORTS § 46 cmt. j (1965)).III. CONCLUSIONBecause we conclude that Hinton breached the May DFA, we AFFIRM the grant ofWachovia’s motion for summary judgment.

  2. Is anyone aware of any persons that have been charged by Wachovia for fire insurance even though they already had their own? Wachovia charged ( tried to ) me $600 per month for fire insurance thru, guess who ( The Wachovia Fire Insurance Co. ) That’s 1200% over what I pay for fire insurance, What crooks! They refused to take any of my payments unless I submitted to their extortion. I know two other people personally that the same thing happened to, Is there a pattern here?

  3. Wachovia did the same to me.1200 shares of Fannie Mae;$30,000;they told me they were buying a insured CD. I have filed a complaint. Should I file a class action suit? I have filed a complaint with Wachovia. My portfolio was to be only safe, insured funds. Only now, have I learned that they purchased perferred stock!

  4. Could you please address the single transaction approach in regards to the mortage process. If in your mortage it states that they may or may not sell your mortage does that release them from any misdeeds, also do you need an attorney versed in tax and securities law for this. Very inportant to me is how to stop eviction after a sheriffs sale ,I requested the original note before the sheriffs sale and was given the recorded copy from the county and a payment schedule from the lender,is this the same. What if any thing can be done to have this taken away from the courts.Attorneys have just said that although I was dupped legally when I signed the mortage I did sign it .I have not been able to secure a job so bankruptcy is not an option. In michigan no one including the AG and the govenor seem to be involved. Homeowners are just walking away because they cannot do anything,200 homes were at the sheriffs sale in may and theres an auction in sept. for another 850. Anything?!

  5. I wonder if the man who cried “yikes” was fired for being a whistle blower….

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