The opinion of the court was delivered by: Anita B. Brody, J.
Plaintiff Marie Vassalotti *fn1 brings this action against Defendant Wells Fargo Bank, N.A. d/b/a America's Servicing Company ("Wells Fargo"), claiming that Wells Fargo failed to service her mortgage loan in accordance with the terms of the original note and mortgage, two loan modification agreements, and state and federal law.
Wells Fargo moves for summary judgment on the three remaining claims in Vassalotti's Third Amended Complaint ("3AC"): *fn2 breach of contract (Count II), violation of the Fair Credit Reporting Act ("FCRA") (Count IV), and violation of Pennsylvania's Unfair Trade Practices and Consumer Protection Law ("UTPCPL") (Count V). *fn3
Vassalotti seeks the following forms of relief against Wells Fargo: declaratory judgment and damages for breach of contract; civil damages under the FCRA; actual, treble, and punitive damages for violation of the FCRA; and reasonable attorney's fees, litigation expenses, and costs of suit.
In August 2007, Wells Fargo, as servicer of Vassalotti's mortgage loan, filed a foreclosure action against Vassalotti because she failed to make the required payments under her mortgage agreement. *fn4 Pl.'s Resp. 1. On November 14, 2007, Wells Fargo sent Vassalotti a letter describing four potential solutions for distressed borrowers, including its loan modification program. *fn5 Pl.'s Resp., Ex. D. Loan modification programs generally assist delinquent borrowers by extending their overdue payment obligations over the remaining term of the loan. Typically, the borrower's deficit ("capitalized amount") is added to the original loan's remaining balance, to create an increased overall balance. The borrower then agrees to make payments toward the modified balance and has no further obligations with respect to the original shortfall. The "capitalized amount" may include delinquent interest, taxes and/or insurance payments. The latter two are generally grouped together under "escrow." An escrow account is an "account that a servicer establishes or controls on behalf of a borrower to pay taxes, insurance premiums (including flood insurance), or other charges with respect to a federally related mortgage loan."
In the November 14, 2007 letter, Wells Fargo described its own loan modification program as follows: "This program adds the delinquent interest, taxes, and/or insurance payments to your unpaid balance if applicable. If you qualify, we may be able to extend the repayment of the past due amounts over the remaining term of your loan." Pl.'s Resp., Ex. D. Over the next six months, Vassalotti and Wells Fargo executed two loan modifications ("LM1" and "LM2"). This action arises in part out of a dispute over whether LM1 and LM2 cured the deficit in Vassalotti's escrow account by including it in the total deficit amount that was capitalized -- and regardless, whether the loan modification agreements were themselves deceptive.
On December 14, 2007, Wells Fargo sent Vassalotti LM1. Pl.'s Resp., Ex. B. LM1 included a cover letter stating:
This letter will confirm the formal approval of a loan modification/restructure of your mortgage loan. . . . Please sign the enclosed loan modification agreement and return it, along with any payment(s) and/or contribution due as reflected in the terms of this letter. . . . The terms of your modification/restructure are outlined below:
1. Due date of first payment: 03/01/2008
2. New principal and interest payment amount: $2,624.88
3. Required escrow payment based on previous analysis: $322.03
4. Estimated new net payment: $2,946.91
5. Modified Maturity Date: 12/01/2035
6. Interest rate: 9.650% . . .
This proposal is valid for five (5) days from the date of this letter. . . .
Pl.'s Resp., Ex. B. A five-page agreement followed the two-page cover letter. The monetary figures listed in the agreement make no reference to a required escrow payment of $322.03. The only reference to "escrow" appears in the fourth paragraph of page 2, which states:
Borrower also will comply with all other covenants, agreements, and requirements of the Security Instrument, including without limitation, Borrower's covenants and agreements to make all payments of taxes, insurance premiums, assessments, escrow items , impounds, and all other payments that Borrower is obligated to make under the Security instrument . . . .
Pl.'s Resp., Ex. B (emphasis added). Vassalotti accepted and signed LM1, and Wells Fargo cancelled the pending Sheriff's sale of her home that was scheduled for January 18, 2008. Pl.'s Resp. 1. She paid the mutually agreed upon contribution of $5,120.35 *fn6 listed in the first paragraph of the cover letter and made the first two months of payments. Pl.'s Resp., Ex. B.
On January 16, 2008, Vassalotti filed for bankruptcy. Vassalotti's
primary purpose for filing for bankruptcy was to discharge credit card
debt. Vassalotti Dep. 54:23-24. On February 12, 2008, Wells Fargo
"inadvertently placed [LM1] on hold due to the bankruptcy status of
the loan." Pl.'s Resp., Ex. E. This meant that in spite of accepting
Vassalotti's payments, Wells Fargo did not apply them towards her
account and instead considered her to be delinquent. *fn7
On April 18, 2008, Vassalotti ...