           Case: 13-10680   Date Filed: 02/03/2014   Page: 1 of 8


                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-10680
                        Non-Argument Calendar
                      ________________________

                  D. C. Docket No. 9:11-cv-80434-KLR

PETER BLOCH,
MARIA BLOCH,

                                                     Plaintiffs-Appellants,

                                  versus

WELLS FARGO HOME MORTGAGE,
BANK OF AMERICA MORTGAGE CAPITAL CORPORATION,
a Foreign Corporation,
a.k.a. Bank of America Corporation,

                                                     Defendants-Appellees.



                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     _________________________

                            (February 3, 2014)

Before MARCUS, MARTIN and BLACK, Circuit Judges.

PER CURIAM:
                Case: 13-10680       Date Filed: 02/03/2014      Page: 2 of 8



       Peter and Maria Bloch appeal the district court’s grant of summary judgment

to Wells Fargo Home Mortgage1 (Wells Fargo) in the Blochs’ diversity action.

After review,2 we affirm the district court’s grant of summary judgment to Wells

Fargo.

                                    I. BACKGROUND

       The Blochs entered into a mortgage and note in the amount of $324,000 on

November 18, 2002 (the loan). Wells Fargo is the servicer of the loan.

       In 2007, the Blochs defaulted on the loan by failing to make payments due.

A foreclosure action was filed against the Blochs in 2008. The Blochs then entered

into a loan modification/restructure of the mortgage loan, and, as a result the

foreclosure action was voluntarily dismissed on June 30, 2008.

       Subsequently, the Blochs defaulted on the modified loan, and a second

foreclosure action was filed. On September 20, 2009, Wells Fargo sent the Blochs

a letter inviting them to apply to participate in the federal Home Affordable

       1
           The Blochs also purport to appeal the district court’s grant of summary judgment to
Bank of America on their negligent misrepresentation claim, but offer no argument as to the
district court’s determination the Blochs “never had any conversations with anyone employed
with Bank of America concerning the loan,” and accordingly, “Bank of America could not have
made any misrepresentations to [the Blochs].” Accordingly, the Blochs have abandoned the
issue and we affirm the district court’s grant of summary judgment as it relates to Bank of
America.
       2
           We review a district court’s grant of summary judgment de novo, viewing the evidence
in the light most favorable to the non-moving party. Dawkins v. Fulton Cnty. Gov’t, 733 F.3d
1084, 1088 (11th Cir. 2013). “All reasonable inferences arising from the undisputed facts
should be made in favor of the nonmovant, but an inference based on speculation and conjecture
is not reasonable.” Id. (quotation omitted).
                                               2
              Case: 13-10680        Date Filed: 02/03/2014   Page: 3 of 8


Modification Program (HAMP). The Blochs completed and submitted their

application shortly thereafter. The Blochs made four trial payments of $2,162

while waiting for a decision regarding whether their loan qualified for a permanent

modification under the HAMP. After reviewing the relevant information, Wells

Fargo determined the Blochs did not qualify for a permanent loan modification

under the HAMP. As a result, the four trial payments were credited to the

outstanding balance on the Blochs’ modified loan.

      On January 11, 2010, the Blochs entered into a forbearance agreement with

Wells Fargo. The Special Forbearance Agreement provided that the “lender is

under no obligation to enter into any further agreement, and this forbearance shall

not constitute a waiver of the lender’s right to insist upon strict performance in the

future.” The Special Forbearance Agreement further provided that “[a]ll of the

provisions of the note and security instrument, except as herein provided, shall

remain in full force and effect.”

      The Blochs have not made any payments on their loan since April 2010. On

February 14, 2011, the Blochs were offered a permanent loan modification by

Wells Fargo, but they declined. The Blochs then filed an action in federal district

court in April of 2011. The Blochs filed a Third Amended Complaint on June 22,

2012, alleging several causes of actions. By the time the district court considered

Wells Fargo’s motion for summary judgment, the Blochs’ only remaining claims


                                            3
              Case: 13-10680     Date Filed: 02/03/2014    Page: 4 of 8


were (1) the portion of a promissory estoppel claim that related to the purported

representation that the Blochs were HAMP participants when they were not and

would be considered for loan modification when they were not; and (2) a negligent

misrepresentation claim as it related to the October 23, 2009, representation by

Wells Fargo employee Aerek Stephens that the Blochs were HAMP participants.

The Blochs appeal the district court’s grant of summary judgment to Wells Fargo

on both issues.

                                 II. DISCUSSION

A. Promissory Estoppel

      The Blochs contend that Wells Fargo’s September 2009 letter stating they

“may be eligible for a trial modification plan under [HAMP], and we estimate your

new payment amount to be $2,162,” takes this action outside the ambit of the bank

statute of frauds. They assert the district court overlooked critical evidence,

specifically, transcripts of telephone conversations with Wells Fargo

representatives that Peter Bloch recorded. The Blochs contend they detrimentally

relied on Wells Fargo’s promise to conduct a review of their HAMP application

and that Wells Fargo misled them about their status in the HAMP process for

months. The Blochs further argue the September 2009 letter constitutes a binding

promise that Wells Fargo would at least consider them for the HAMP program,

and that based on conversations with Wells Fargo representatives, they believe


                                          4
                Case: 13-10680        Date Filed: 02/03/2014       Page: 5 of 8


they were mistakenly dropped from and never actually considered for the HAMP

program. They contend they suffered damages because the promise to review their

HAMP application led them to not pursue a short sale or bankruptcy options.3

       The Blochs maintain their promissory estoppel claim is based on a

combination of Wells Fargo’s September 2009 letter and oral representations by

phone representatives of Wells Fargo. In Florida, the doctrine of promissory

estoppel “applies when there is (1) a promise which the promisor should

reasonably expect to induce action or forbearance, (2) action or forbearance in

reliance on the promise, and (3) injustice resulting if the promise is not enforced.”

DK Arena, Inc. v. EB Acquisitions I, LLC, 112 So. 3d 85, 96 (Fla. 2013). Florida

law also provides “the judicial doctrine of promissory estoppel may not be used to

circumvent” the Statute of Frauds. Id. at 97.

       A letter stating that they might be eligible for a trial modification under

HAMP was not “a binding promise” the Blochs would receive a loan modification

under HAMP. To the extent the Blochs contend it was a binding promise they

would be considered for a loan, the evidence demonstrates the Blochs’ loan was in

fact reviewed to determine whether they qualified for a HAMP modification.


       3
           This Court has held there is no private cause of action under HAMP for a lender’s
refusal to permanently modify a loan. Miller v. Chase Home Fin., LLC, 677 F.3d 1113, 1116
(11th Cir. 2012). In Miller, we also held a lender cannot be liable pursuant to a theory of
promissory estoppel under Georgia law for declining to issue a permanent loan modification if
there is no promise upon which the plaintiff reasonably relied. Id. at 1117 (citing O.C.G.A. § 13-
3-44(a)).
                                                5
              Case: 13-10680     Date Filed: 02/03/2014   Page: 6 of 8


After reviewing the relevant information, Wells Fargo concluded the Blochs did

not qualify for a permanent loan modification under the HAMP.

      Additionally, to the extent the Blochs attempt to add verbal conversations to

the purported “promise,” such addition is barred by section 687.0304 of the Florida

Statutes, known as “Florida’s Banking Statute of Frauds.” See Coral Reef Drive

Land Dev., LLC v. Duke Realty Ltd. P’ship, 45 So. 3d 897, 902-03 (Fla. 3d DCA

2010) (finding promissory estoppel claim legally insufficient under the Banking

Statute of Frauds where borrower alleged lender agreed to forbear repayment and

to make financial accommodations to borrower in a phone call). The Banking

Statute of Frauds provides that a borrower may not maintain an action on an

agreement by a creditor to take certain actions, such as entering into a new credit

agreement, forbearing from exercising remedies under prior credit agreements, or

extending installments due under prior credit agreements, unless the agreement is

in writing, expresses consideration, sets forth the relevant terms and conditions,

and is signed by the creditor and the debtor. § 687.0304, Fla. Stat.

      It is undisputed there is no signed written agreement expressing

consideration and setting forth the relevant terms and conditions of the purported

HAMP modification. The purported agreement for a HAMP modification does




                                          6
                Case: 13-10680       Date Filed: 02/03/2014      Page: 7 of 8


not meet the requirements of the Banking Statute of Frauds, and the district court

did not err in determining Bloch’s promissory estoppel claim fails. 4

B. Negligent Misrepresentation

       The Blochs allege that on October 23, 2009, Wells Fargo representative

Aerek Stephens informed their former counsel that they were participants in the

HAMP program. They contend that if they had been aware Wells Fargo never

intended to modify their loan, they would have attempted to sell their home at the

outset, foregoing the modification process.

       Under Florida law, negligent misrepresentation requires:

       (1) misrepresentation of a material fact; (2) the representor must either
       know of the misrepresentation, must make the representation without
       knowledge as to its truth or falsity, or must make the representation
       under circumstances in which he ought to have known of its falsity;
       (3) the representor must intend that the representation induce another
       to act on it; (4) injury must result to the party acting in justifiable
       reliance on the misrepresentation.

Rocky Creek Ret. Props., Inc. v. Estate of Fox ex rel. Bank of Am., 19 So. 3d 1105,

1110 (Fla. 2d DCA 2009) (quotation omitted).

       The Blochs alleged injury is speculative. Evidence of damages must be

concrete, not based on speculation and conjecture. George Hunt, Inc. v. Dorsey

Young Constr., Inc., 385 So. 2d 732, 733 (Fla. 4th DCA 1980).; see also


       4
           Additionally, the Special Forbearance Agreement signed by the Blochs after the
purported representation that they were in the HAMP, provided the provisions of the note and
security instrument were to remain in full force and effect.
                                               7
               Case: 13-10680    Date Filed: 02/03/2014   Page: 8 of 8


Colandrea v. Johnson, 632 So. 2d 284, 285 (Fla. 2d DCA 1994). The Blochs do

not allege they have paid any more than what was due under the loan, and admit

they defaulted on the loan, as modified by the permanent loan modification they

received, by failing to pay all amounts due under the loan. The district court did

not err in determining the Bloch’s negligent misrepresentation claim also fails.

                                III. CONCLUSION

      Accordingly, we affirm the district court’s grant of summary judgment to

Wells Fargo.

      AFFIRMED.




                                          8
