               Not for Publication in West's Federal Reporter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.
           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 variable-

rate 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-in-

Lending    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


                                            - 3 -
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


                                        - 4 -
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


                                        - 5 -
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.


                                     - 6 -
underlying    figures        used    to    compute    the    ultimate        obligation-

income 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.


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