I. Statement Pursuant to CPLR § 2219 [a]

The following e-filed documents listed on NYSCEF (Motion No. 004) numbered 53-63 were read on this motion. The Court has considered the following papers in connection with the motion of Defendant Wells Fargo Bank, N.A. ("Wells Fargo"): (1) Notice of Motion to Dismiss dated August 12, 2025, with Affirmation of Angela A. Smedley, Esq., and exhibits annexed thereto; (2) Defendant's Memorandum of Law; (3) Plaintiff's Verified Amended Complaint dated July 23, 2025; and (4) all prior proceedings and filings in this action, including Plaintiff's original Complaint and the record of removal and remand from the United States District Court for the Eastern District of New York.

II. Facts

Plaintiff is the mortgagor of a residential property located at 61 Deirdre Court, Staten Island, New York. Having defaulted on his mortgage obligations in 2014, he applied for a trial loan modification under the Home Affordable Modification Program ("HAMP"). Wells Fargo, the then-servicer of the mortgage, determined that he did not qualify for the program and initiated foreclosure proceedings.

In July 2015, Plaintiff obtained a loan modification, which resolved the 2014 foreclosure action and permitted him to retain possession of his home. Nonetheless, in 2016, Plaintiff again defaulted, necessitating another foreclosure action. To cure that default, Plaintiff withdrew approximately $23,000.00 from his pension, incurring tax penalties and related consequences. In 2018, Wells Fargo transferred the servicing rights to Select Portfolio Servicing, Inc.

On April 21, 2021, Wells Fargo sent a letter acknowledging that Plaintiff had been erroneously denied a trial modification in 2014 and tendered $16,786.00 in compensation. Plaintiff remained in his home at the time of his Verified Amended Complaint, filed July 23, 2025.

This action was originally filed in December 2022, removed to federal court in January 2023, and remanded to this Court in March 2025 after federal claims against other defendants were dismissed. Plaintiff now asserts seven causes of action against Wells Fargo: (1) violation of General Business Law ("GBL") § 349; (2) fraud; (3) negligent misrepresentation; (4) breach of contract, styled also as promissory estoppel; (5) breach of contract as an alleged third-party beneficiary of the HAMP Servicer Participation Agreement ("SPA"); (6) negligence; and (7) violation of California's Unfair Competition Law ("UCL"). Each claim is grounded in the assertion that Wells Fargo's denial of the 2014 HAMP trial modification was wrongful.

Wells Fargo moves to dismiss pursuant to CPLR § 3211 [a] [7] for failure to state a cause of action, and as to fraud-based claims, under CPLR § 3016 [b].

III. Conclusions of Law

A motion under CPLR § 3211 [a] [7] tests the legal sufficiency of the pleading. The Court must accept the facts alleged as true and accord Plaintiff every favorable inference, but conclusory allegations and speculative assertions are insufficient. Fraud-based claims must further satisfy CPLR § 3016 [b], requiring detailed allegations of the misrepresentation, its speaker, timing, and circumstances.

A. Absence of a Private Right of Action under HAMP

At the heart of Plaintiff's pleading lies Wells Fargo's denial of his HAMP trial modification in 2014. It is well-settled that HAMP confers no private right of action, nor does it create third-party beneficiary rights in borrowers under SPAs. Courts have consistently rejected efforts to recast HAMP grievances as state-law claims sounding in contract, fraud, or consumer protection. Plaintiff's attempt to evade this prohibition by pleading alternate causes of action is unavailing.

B. Failure to Plead Causation

Even if HAMP obligations were privately enforceable, Plaintiff fails to plead a causal nexus between the 2014 denial and his alleged damages. The Verified Amended Complaint acknowledges that the 2015 modification allowed him to resolve the foreclosure and remain in his home. His subsequent 2016 default and withdrawal of pension funds cannot plausibly be traced to the earlier denial, particularly as Plaintiff does not allege that he could have performed under the 2014 modification or that its terms were superior to the 2015 modification he did receive. The chain of causation is thus speculative, broken, and legally insufficient.

C. Individual Claims

• GBL § 349: Plaintiff fails to allege materially deceptive conduct. An error, even if consequential, does not constitute a deceptive practice. Nor has Plaintiff pled actual injury directly caused by the denial.

• Fraud and Negligent Misrepresentation: The claims lack the requisite specificity under CPLR § 3016 [b]. Plaintiff identifies neither the speaker nor the circumstances of the alleged misrepresentation and fails to allege fraudulent intent with factual support.

• Negligence: Wells Fargo owed Plaintiff no duty of care beyond its contractual obligations as mortgagee. New York law rejects imposing negligence liability in an arm's-length lender-borrower relationship absent a special relationship, which is neither pled nor inferable.

• Breach of Contract (Count 4): The relationship is governed by express written instruments Note, Mortgage, and 2015 Modification Agreement. No term therein requires Wells Fargo to provide a HAMP modification. Implied covenant and promissory estoppel theories are barred where, as here, express contracts control.

• Breach of Contract as Third-Party Beneficiary (Count 5): Borrowers are not intended beneficiaries of HAMP SPAs. This claim fails as a matter of law.

• California UCL: Plaintiff, a New York resident, sues regarding a New York property. He alleges no California conduct. Moreover, the UCL affords only restitution and injunctive [*2]relief, not the compensatory damages he seeks. The claim is barred both substantively and remedially.

D. Improper Incorporation of Other Pleadings

Plaintiff's attempt to incorporate allegations from unrelated litigations is procedurally improper and fails to provide fair notice under CPLR § 3013. Such allegations must be stricken.

IV. Conclusion and Decretal Paragraphs

For the foregoing reasons, Plaintiff's Verified Amended Complaint is wholly deficient. Each cause of action is either barred as a matter of law or inadequately pled.

Accordingly, it is

ORDERED, that the motion of Defendant Wells Fargo Bank, N.A., to dismiss the Verified Amended Complaint is GRANTED in its entirety; and it is further

ORDERED, that Plaintiff's causes of action sounding in consumer protection, fraud, negligent misrepresentation, negligence, breach of contract, promissory estoppel, and violation of the California Unfair Competition Law are dismissed with prejudice pursuant to CPLR § 3211 [a] [7], and as to the fraud-based claims, pursuant also to CPLR § 3016 [b]; and it is further

ORDERED, that all allegations incorporated by reference from other proceedings are stricken as improper; and it is further

ORDERED, that the Clerk of the Court shall enter judgment accordingly in favor of Defendant Wells Fargo Bank, N.A., DISMISSING the Verified Amended Complaint in its entirety WITH PREJUDICE.