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Ruivo v. Wells Fargo Bank, N.A.

United States Court of Appeals, First Circuit

September 8, 2014

LINDA M. RUIVO, Plaintiff, Appellant,
v.
WELLS FARGO BANK, N.A., a/k/a WACHOVIA MORTGAGE, DIVISION OF WELLS FARGO BANK, 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 NEW HAMPSHIRE. Hon. Paul J. Barbadoro, U.S. District Judge.

Affirmed.

David H. Bownes, with whom Law Office of David H. Bownes, P.C. was on brief, for appellant.

David M. Bizar, with whom Kiran A. Seldon and Seyfarth Shaw LLP were on brief, for appellee.

Before Howard, Stahl and Lipez Circuit Judges.

OPINION

Page 88

LIPEZ, Circuit Judge.

Linda Ruivo appeals the district court's dismissal of counts one and five of her First Amended Complaint. Ruivo argues that count one, captioned " N.H.R.S.A. 397-A:2(VI)," adequately pleaded a state common law claim of fraud, and that count five sufficiently pleaded, consistent with its caption, a promissory estoppel claim. Agreeing with the district court that both claims were inadequately pleaded, we affirm the district court's dismissal.

I.

In reviewing the grant of a motion to dismiss, we recount the facts as alleged in the operative complaint. Grajales v. P.R. Ports Auth., 682 F.3d 40, 43 (1st Cir. 2012). Here the pertinent complaint is the First Amended Complaint.

In July of 2007, Ruivo's property, consisting of a primary residence and cottage in Moultonborough, New Hampshire, was subject to a $500,000 mortgage. In the

Page 89

fall of 2007, Ruivo had begun to consider refinancing her mortgage. To that end, during the late winter and early spring of 2008, she discussed refinancing with Wachovia Mortgage, FSB, a predecessor in interest to defendant-appellee Wells Fargo Bank, N.A. (hereinafter " Wells Fargo" ) and Scott Farah, a mortgage broker at Financial Resources Mortgage, Inc.[1] Based on those discussions, she believed that refinancing her property on more favorable terms was possible, but that she needed to make some improvements to her property to increase its appraised value. Hence, before refinancing, she began to make improvements on her property, drawing on various lines of credit. Ruivo then applied to Wachovia for a thirty-year fixed interest rate mortgage with cash out. In June of 2008, Farah informed her that she had been approved for a loan.

At the July 11, 2008[2] closing for the refinancing, without prior notice, the terms of the refinancing were unfavorably changed to an interest-only loan with an interest rate increasing every six months. Farah, who was present as the Mortgage Advisor at the closing for the refinancing, advised Ruivo that there were no other options but to sign. Faced with the large debt from her property improvements, Ruivo moved forward with the refinancing. Farah nonetheless assured Ruivo that further refinancing at a later date was " a realistic option." In subsequent discussions, he " ...


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