Not for Publication in West's Federal Reporter 

United States Court of Appeals 

For the First Circuit 

No. 17-1631 

JONATHAN FOLEY, 

Plaintiff, Appellant, 

v. 

WELLS FARGO BANK, N.A., s/b/m Wells Fargo Bank Southwest, N.A., 

f/k/a Wachovia Mortgage FSB, f/k/a World Savings Bank FSB, 

Defendant, Appellee. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Leo T. Sorokin, U.S. District Judge] 

Before 

Lynch, Circuit Judge, 

Souter, Associate Justice, 

and Kayatta, Circuit Judge. 

David Hadas, with whom Drohan, Hitt & Hadas, LLC was on 

brief, for appellant. 

David M. Bizar, with whom Dallin R. Wilson, Robert J. 

Carty, Jr., and Seyfarth Shaw LLP were on brief, for appellee. 

July 24, 2018 

 

 Hon. David H. Souter, Associate Justice (Ret.) of the 

Supreme Court of the United States, sitting by designation. 
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SOUTER, Associate Justice. The plaintiff, Jonathan 

Foley, appeals from summary judgment entered for Wells Fargo 

Bank, N.A., in an action seeking to enjoin the bank's threatened 

foreclosure under Foley's existing mortgage, and alleging that 

the bank was in breach of contract in denying his application to 

rewrite the mortgage contract. We affirm. 

This is the second plaintiff's appeal in this action, 

the first having been for dismissing the case by treating the 

bank's motion to dismiss under FRCP Rule 12(b)(6) as one for 

summary judgment under Rule 56, but without affording Foley the 

full opportunity to adduce evidence that a summary judgment 

motion allows. See Foley v. Wells Fargo, 772 F.3d 63, 71-75 

(1st Cir. 2014). On remand the required Rule 56 procedure was 

observed, but with the same result. Our earlier opinion remains 

useful in providing a detailed recitation of procedural history, 

and our factual account this time will be limited to what is 

strictly necessary to understand the case in its present 

posture. 

Over a decade ago, Foley obtained money for a 

Massachusetts real estate purchase from a predecessor of Wells 

Fargo under a "Pick-a-Payment" plan, providing for a variablerate mortgage allowing the borrower to choose from a range of 

payment options. As the financial climate worsened, an action 

was brought in California against the bank by a class including 
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Foley upon a claim that the plan violated the federal Truth-inLending Act, 15 U.S.C. § 1601 et seq. A class settlement 

eventuated, which provided that the defendant bank would 

consider defaulting borrowers for substitute terms under a 

federal scheme with a name abbreviated as HAMP and under another 

alternative devised specifically for purposes of the settlement 

and known as MAP2R. One feature common to the criteria for each 

was a limit on the percentage that a new monthly payment or 

payments could bear to the borrower's monthly gross income: 42% 

under HAMP, 31% under MAP2R. If an application was denied, the 

bank was required to provide the borrower with a "written 

explanation." 

When Foley defaulted on his mortgage payments in 2010, 

the bank gave notice of foreclosure and furnished materials to 

apply for a superseding mortgage. What followed was a 

complicated exchange of letters, including duplicate letters, 

re-submitted applications, telephone conversations, and 

intervention by the Attorney General of Massachusetts. But 

there is no evidence or evidentiary proffer inconsistent with 

the conclusion that, by the time the sequence of communications 

was over, Foley had been told in writing that the bank had 

considered and denied relief under both schemes. Foley, 

dissatisfied, began this litigation in the Massachusetts courts, 

from which it was removed to federal district court. The full 
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details of the sequence of its procedural events need not be set 

out here, for this appeal is limited to a claim that there is a 

triable issue whether Wells Fargo's denial of Foley's 

application for relief under the MAP2R scheme was a breach of 

the settlement agreement, Foley being undisputedly a class 

member. Because the case was decided on a motion for summary 

judgment, we review de novo the district court's conclusion that 

there was no genuine issue of fact that could have been found in 

Foley's favor that would have stood in the way of concluding 

that the bank was entitled to judgment as a matter of law. See 

Prescott v. Higgins, 538 F.3d 32, 39-40 (1st Cir. 2008). 

Throughout the course of this litigation, Foley has 

charged that the bank has not complied with its obligations 

under the settlement agreement, an argument that covers two 

claims. First, he says that the bank failed to provide a 

sufficiently clear "written explanation" specific to the MAP2R 

application that went beyond a merely general and conclusory 

statement that the application was denied. The second is an 

argument that he satisfied the MAP2R criteria on the merits and 

was thus entitled to relief. We find no genuine issue of 

material fact on these points and agree with the district court 

that the bank is entitled to judgment. 

The controversy about adequacy of detail as raised in 

the first claim risks submerging it in a dispute about whether a 
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required explanation for denying relief must be "clear," as our 

earlier opinion assumed in passing that it must be. See Foley, 

772 F.3d at 69, 76. If clarity of explanation is required, so 

Foley's argument implicitly goes, a failure to mention "MAP2R" 

in the first denial letter and a subsequent letter's reference 

to excessive monthly debt obligations, or an excessive 

obligation-income ratio, could not suffice. In reply, the bank 

argues that in drafting the settlement agreement a proposed 

express clarity requirement was dropped, resulting in the final, 

unadorned "written explanation" term, implying a relaxed 

standard of explanation. Foley counters that by arguing that 

California's parol evidence rule would bar the bank's argument 

based on drafting history. We find the controversy irrelevant 

to this case. 

As for the bank's failure to refer expressly to the 

MAP2R application in a denial letter, we have already held that 

such express labeling is unnecessary so long as the reason for 

the denial is conveyed, see Foley, 772 F.3d at 76, and Foley 

offers no evidence raising a genuine doubt that it was.1 Indeed, 

 1 In the district court Foley presented a more general 

argument for the inadequacy of the "written explanation," in 

characterizing the first and subsequent letters as "vague" and 

"contradictory." Although we do not see self-contradiction in 

the cycle of notification letters, we agree that some of them 

that were meant to refer to MAP2R were opaque on their face, and 

we will be candid to say that the months spent by the two 

parties arguing over the "written explanation" requirement tend 
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the letter accurately stated that the bank was unable to offer a 

loan modification because Foley had "excessive financial 

obligations." In any event, a further denial letter some five 

months later did make reference to each plan expressly. 

As for the failure to specify more than debt 

obligations, when the bank spoke of unacceptably high liability 

for payment on debt, it could be understood only as referring to 

the basis for calculating the percentage of monthly obligations 

compared with monthly income. There can be no doubt that it 

thus informed the borrower of the underlying facts and 

computations he must revisit if he wished to appeal the bank's 

denial. 

In his submission to this court, Foley of course 

recognizes this, as is clear from his final challenge to the 

adequacy of the bank's explanation, in which he attacks the 

 

to confirm the criticism of other courts that have expressed 

doubts about Wells Fargo's capacity or willingness to rewrite 

mortgage loans under the terms of the settlement. See, e.g., In 

re Wachovia Corp."Pick-a-Payment" Mortg. Mktg. & Sales Practices 

Litig., 2014 WL 2905056, at *4 (N.D. Cal. June 26, 2014); In re 

Wachovia Corp. "Pick-A-Payment" Mortg. Mktg. & Sales Practices 

Litig., 2013 WL 5424963, at *5-6 (N.D. Cal. Sept. 25, 2013). 

But Foley's citations to these cases are beside the point in 

this case, and in any event the explanatory cycle ended with a 

letter that made it abundantly clear that Foley's applications 

were denied for failure to show that the revised monthly 

payments would be within the percentages of the borrower's 

monthly gross income necessary to qualify under the two schemes 

in question, HAMP and MAP2R. The time required to reach this 

elementary degree of clarity has not been claimed as an 

independent basis for awarding any relief to Foley. 
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underlying figures used to compute the ultimate obligationincome percentage calculation. If the figures he presented to 

the district court were accepted, his monthly installment under 

the new mortgage agreement would indeed be no more than 31% of 

monthly gross income as allowed under the MAP2R plan. But one 

of his numbers was patently wrong under the plan's terms, as the 

district court came to realize in performing its own 

determination of the crucial percentage. As to monthly income, 

the court gave Foley the benefit of some doubt and used his 

number, but Foley's monthly installment obligation figure was 

too egregiously inaccurate to indulge. The MAP2R definition of 

that monthly obligation included the monthly homeowners' 

association fee and homeowners' insurance premium for the 

mortgaged property, each of which Foley had omitted. When they 

were added, the resulting installment came out above the 

allowable 31%, thus mandating a finding of ineligibility. 

We are unable to find any basis to dispute the court's 

correction; Foley has not responded on the record by challenging 

the definition as the court understood it or the factual 

correctness of the two numbers added to the figure Foley himself 

had used. The consequence is that by accepting Foley's own 

assumptions, subject to the undisputed correction, Foley is 

shown to be ineligible for MAP2R relief, based on a computation 

about which there is no genuine dispute. 

Affirmed.