Metropolitan News-Enterprise


Thursday, May 30, 2019


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Ninth Circuit:

Bank Not Liable for Death of Woman Evicted Following Foreclosure


By a MetNews Staff Writer


The  Ninth U.S. Circuit Court of Appeals yesterday affirmed a summary judgment in favor of Wells Fargo in an action against it alleging the wrongful death of a 62-year-old woman it evicted from a home on which the bank foreclosed after she fell behind in her payments, having ceased working in light of having contracted breast cancer.

The decedent, Marsha Kilgore, died Oct. 16, 2013 “from inability to breathe” because, being homeless, she was unable to plug in her oxygen concentrator, according to the complaint in the case.

Her daughter, Brooke Noble, brought the action.

Ordered to Leave

Noble had lived with her mother in a Fresno condominium Kilgore had owned until the foreclosure. The complaint alleged that an agent of Wells Fargo told them to gather their belongings and leave, agreed to give them a 24-hour delay, returned the next day, and ordered them to quit the premises.

Wells Fargo had a policy of according financial assistance to persons who are evicted and leave willingly, but offered none to Kilgore.

Kilgore was a plaintiff in a class action against Wells Fargo based on a promised loan modification that never materialized.

District Court Decision

As District Court Judge Dale A. Drozd of the Eastern District of California summarized events following the eviction, his order granting summary judgment to the defendant on Aug. 9, 2017:

“Over the next five months, plaintiff and Ms. Kilgore struggled to find suitable shelter. During this time period, the two lived on the streets and at hotels, and Ms. Kilgore was hospitalized several times due to a lack of adequate oxygen….In September 2013, plaintiff and Ms. Kilgore had to leave a hotel due to the cost of electricity necessary for Ms. Kilgore’s oxygen concentrator….That same month, counsel for Ms. Kilgore informed Wells Fargo of Ms. Kilgore’s health condition and unsuccessfully attempted to reverse Ms. Kilgore’s eviction….Also in September, Ms. Kilgore was hospitalized and discharged after four days, despite pleas to stay longer due to her dependence on an oxygen concentrator….

“On October 9, 2013, Ms. Kilgore returned to the hospital….According to her death certificate, Ms. Kilgore died on October 16, 2013, due to acute chronic hypercapnic respiratory failure, a lung mass, and chronic obstructive pulmonary disease.”

He wrote:

“Here, viewing the evidence before the court on summary judgment in the light most favorable to plaintiff, the court concludes that defendant’s conduct in each instance did not give rise to a duty of care toward Ms. Kilgore.”

In yesterday’s memorandum opinion, a three-judge panel said:

“Wells Fargo had no obligation to offer financial assistance to Kilgore and  conferred a benefit upon her by allowing her extra time to pack her belongings.  Noble has not presented any evidence that the agent touched Kilgore or her  belongings, and the parties agree that the agent simply told Kilgore that it was time  to leave. Noble does not explain how this conduct rises to a wrongful or negligent  act. The district court therefore did not err in granting Wells Fargo summary  judgment on the wrongful death and [negligent infliction of emotional distress] claims.”

The panel also concluded that the elements of intentional infliction of emotional distress were absent.

The case is Noble v. Wells Fargo Bank, N.A., 16-16362.


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