Opposition Brief — Meteku Negatu, Petitioner v. Wells Fargo Bank, N.A.

No. 18-559

In the Supreme Court of

the United States

METEKU NEGATU,

v.

Petitioner,

WELLS FARGO BANK, N.A.,

------------------------------------------

Respondent.

O N P E T I T I O N F O R W R I T O F C E RT I O R A R I T O

T H E D I S T RI C T O F C O L U M B I A C O U RT O F A P P E A L S

------------------------------------------

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

------------------------------------------

Virginia W. Barnhart

Counsel of Record

WOMBLE BOND

DICKINSON (US) LLP

100 Light Street, 26th Floor

Baltimore, MD 21202

Phone: (410) 545-5803

Virginia.Barnhart@wbd-us.com

Counsel for Respondent

GibsonMoore Appellate Services, LLC

206 East Cary Street ♦ Richmond, VA 23219

804-249-7770 ♦ www.gibsonmoore.net

i

QUESTION PRESENTED

Whether the Petition for Writ of Certiorari should

be denied because: (a) it fails to raise any of the

considerations required for certiorari review under

Part III, Rule 10 of the Rules of this Court; (b) the

“Question Presented” by the Petitioner (i.e., whether

his due process and equal protection rights were

violated by the District of Columbia Court of Appeals

in affirming the Superior Court for the District of

Columbia’s entry of summary judgment in favor of

Wells Fargo Bank, N.A.) was neither raised nor

preserved by the Petitioner below, and (c) the

Petitioner failed to present any evidence in the

Superior Court below to demonstrate a dispute of

material fact as to Wells Fargo’s right to foreclose,

even after being provided notice and the opportunity

to be heard?

ii

RULE 29.6 CORPORATE DISCLOSURE

Respondent, Wells Fargo Bank, N.A. (“Wells

Fargo”), is a subsidiary of Wells Fargo & Company.

Wells Fargo & Company is a bank holding company

trading under the symbol “WFC” on the New York

Stock Exchange. Wells Fargo Bank, N.A., is the

successor-in-interest to World Savings Bank, F.S.B.

iii

TABLE OF CONTENTS

Page:

QUESTION PRESENTED .......................................... i

RULE 29.6 CORPORATE DISCLOSURE ................. ii

TABLE OF AUTHORITIES ...................................... iv

STATEMENT OF FACTS .......................................... 1

SUMMARY OF ARGUMENT .................................... 5

REASONS FOR DENYING THE PETITION ........... 6

I. Mr. Negatu’s Constitutional Arguments

Were Not Raised or Preserved Below ............. 6

II. Summary Judgment Was Properly Entered

Below ................................................................ 8

A. Petitioner Admitted Below That Wells

Fargo Had Standing to Foreclose............... 9

B. Petitioner’s Defenses Were Waived and

Abandoned By His Failure to Preserve ... 10

1. The Foreclosure Action Was

Timely Filed ................................... 11

2. The Equitable Doctrine Of

Laches Does Not Apply .................. 14

CONCLUSION ......................................................... 15

iv

TABLE OF AUTHORITIES

Page(s):

Cases:

Bannum Inc. v. District of

Columbia Bd. Of Zoning Adjustment,

894 A.2d 423 (D.C. 2006) .................................... 14

Braxton v. United States,

500 U.S. 344 (1991) .............................................. 6

Bruno v. Western Union Fin. Servs., Inc.,

973 A.2d 713 (D.C. 2009) ................................ 9, 10

Burgess v. Square 3324 Hampshire Gardens

Apartments, Inc.,

691 A.2d 1153 (D.C. 1997) .................................. 13

Connecticut v. Doehr,

501 U.S. 1 (1991) ................................................... 7

Gonzalez v. Duenas-Alvarez,

549 U.S. 183 (2007)................................................ 7

Harrod v. Kelly Adjustment Co.,

179 A.2d 431 (D.C.1962) ................................... 13

Huntley v. Bortolussi,

667 A.2d 1362 (D.C. 1995)..................................... 12

Mathews v. Eldridge,

424 U.S. 319 (1976)................................................ 7

Murray v. Wells Fargo Home Mortg.,

953 A.2d 308 (D.C. 2008) ................................... 13

Phillips v. A & C Adjusters, Inc.,

213 A.2d 586 (D.C.1965) ..................................... 13

Rogers v. Advance Bank,

111 A.3d 25 (D.C. 2015) ......................................... 2

v

United States v. Jones,

565 U.S. 400 (2012)................................................ 7

Wood v. Milyard,

566 U.S. 463 (2012) ............................................. 11

Statutes:

D.C. Code Ann. § 12-301(6) ...................................... 12

D.C. Code Ann. § 42-816 ......................................... 8, 9

Rules:

D.C. Super. Ct. R. 56 .................................................. 8

U.S. Sup. Ct. R. 10 .................................................. 5, 6

U.S. Sup. Ct. R. 10.1 ................................................... 6

1

STATEMENT OF FACTS

Petitioner, Meteku Negatu (“Mr. Negatu”),

obtained a mortgage loan from World Savings Bank,

F.S.B., a predecessor in interest to Wells Fargo, on or

about April 13, 2007, in the amount of $658,500.00. In

connection with that loan, Mr. Negatu executed a

promissory note payable to “World Savings Bank,

F.S.B., a FEDERAL SAVINGS BANK, ITS

SUCCESSORS AND/OR ASSIGNEES” (the “Note”),

which was secured by the Property and evidenced by

a Deed of Trust that was recorded in the land records

of the District of Columbia. Both the Note and Deed

of Trust were executed as documents under seal. In

the event of default, the Note referred to and

incorporated the rights set forth in the Deed of Trust,

including the Lender’s right to accelerate the loan and

sell the property pursuant to Paragraph 28 of the Deed

of Trust. Despite his contentions to the contrary

(raised for the first time before the D.C. Court of

Appeals), the record in the Superior Court was

undisputed that Wells Fargo is the successor in

interest to the original lender, World Savings Bank

F.S.B., and, as such, had the right to enforce the Note

and Deed of Trust.

In October 2009, Mr. Negatu admits that he

defaulted on the Note by failing to make the required

monthly payments. Despite receiving a notice of

default and demand letter in November 2009, Mr.

Negatu failed to cure the default. On or about April

1, 2015, the Substitute Trustees, Carrie M. Ward,

Howard N. Bierman, Jacob Geesing, Jason T. Kutcher,

Joshua P. Coleman and Joseph A. Delozier (the

“Substitute Trustees”), were appointed and, on June

19, 2015, the underlying Complaint for Judicial

2

Foreclosure Sale was filed in the Superior Court, Case

No. 2015 CA 004574 R(RP) (the “Foreclosure Action”).

Throughout his Petition, Mr. Negatu contends

that he was denied due process; however, the record

from the Foreclosure Action makes clear that Mr.

Negatu received notice of the Foreclosure Action and

actively participated therein. He filed an Answer to

the Complaint for Judicial Foreclosure Sale but raised

no affirmative or negative defenses therein, nor did

he file any counterclaim. The parties engaged in

discovery and attended two mediation sessions

(notably, mediation in judicial foreclosure actions is

not required by the statute). See Rogers v. Advance

Bank, 111 A.3d 25 (D.C. 2015). On December 21,

2016, the Substitute Trustees filed a Motion for

Summary Judgment which Mr. Negatu opposed on

January 10, 2017, raising matters that he did not

preserve in his Answer. On January 19, 2017, the

Substitute Trustees filed a reply memorandum in

support of their Motion for Summary Judgment.

On April 4, 2017, the Honorable Michael L. Rankin

issued an Order Granting the Substitute Trustees’

Motion for Summary Judgment and Decree for Sale of

Real Property (the “4/4/17 Order”). App. 7a-8a. In that

4/4/17 Order, Judge Rankin found that there was no

genuine dispute of material fact. Specifically, the

Court found that:

(1) [Mr. Negatu] is the record owner of the

property; (2) [Wells Fargo] is a beneficiary of the

Deed of Trust secured by the property; (3) [Wells

Fargo] is the current holder of the note; (4) [Mr.

Negatu] defaulted under terms of Note and

Deed of Trust [in] October of 2009; (5) [Wells

Fargo] mailed a demand letter to [Mr. Negatu’s]

3

last known address stating the amount needed

to cure the default; and (6) [Mr. Negatu] failed

to cure the default...[and (7) that Wells Fargo]

has attached an affidavit which complies with

the Servicemembers Civil Relief Act.

4/4/17 Order, App. 7a-8a. Mr. Negatu appealed the

decision of the Superior Court to the District of

Columbia Court of Appeals in Appeal No. 17-CV-0412

(the “DC Appeal”). The DC Court of Appeals affirmed

the decision of the Superior Court by per curiam

Memorandum Opinion and Judgment dated July 31,

2018 (the “7/31/18 Opinion”). App. 1a-6a.

Nearly every argument offered by Mr. Negatu in

his brief in the Court of Appeals was raised for the

first time in that appeal and, thus, were not preserved

for review. In addition, those arguments were also

wholly unavailing. Mr. Negatu sought reversal of the

4/4/17 Order, arguing that Wells Fargo made false

representations in connection with his loan

modification review. While this argument had been

raised in the Foreclosure Action, Mr. Negatu did not

raise it by Counterclaim or in his Answer as an

affirmative defense. Instead, as found by the Court of

Appeals, he did so “for the first time in his unsworn

opposition to the motion for summary judgment,

[which] was worded in entirely conclusory terms and

was not supported by specific evidence that could

create a genuine issue of material fact.” See 7/31/18

Opinion at App. 3a.

As the remainder of the arguments raised by Mr.

Negatu were raised for the first time on appeal, the

Court of Appeals properly rejected them, noting that

it had no obligation to consider such arguments as

they had not been preserved below. See App. 3a-4a.

4

The Court of Appeals also dispensed with Mr.

Negatu’s challenge to Wells Fargo’s standing to

enforce the Note, finding that there was no material

dispute of fact as to Wells Fargo’s ownership of the

Note. The Court of Appeals also recognized that Mr.

Negatu had admitted in his Answer that Wells Fargo

was the beneficiary of the Deed of Trust secured by

the property and that he offered no evidence to refute

Wells Fargo’s response under oath to an interrogatory

that it was the owner of the note.

Similarly, again based on the undisputed

summary judgment record below, the Court of

Appeals held that Mr. Negatu’s argument that the

Foreclosure Action was untimely was without merit

as both the Note and Deed of Trust were documents

executed under seal, finding that the Foreclosure

Action thus “was governed by the twelve-year statute

of limitations applicable to documents under seal...”

App. 4a-5a. Finally, the Court of Appeals rejected Mr.

Negatu’s assertion that Wells Fargo failed to mitigate

damages, noting that Mr. Negatu had filed

bankruptcy and received a discharge and that “Mr.

Negatu ... failed to explain how, given those

circumstances, he could be injured by any failure of

Wells Fargo to mitigate damages.” App. 5a.

Mr. Negatu now petitions this Court for review of

the underlying decisions citing the same arguments

that the Court of Appeals properly found were not

preserved below and suggesting for the first time in

his Petition, that the District of Columbia courts’

willingness to grant summary judgment in

foreclosures of properties owned by African

Americans, like him, somehow violates due process

and equal protection. Not only has the District of

Columbia foreclosure process already been affirmed

5

as constitutional, but the record below demonstrates

that Mr. Negatu was given the opportunity to bring

forth evidence to oppose Wells Fargo’s summary

judgment motion below and failed to do so.

SUMMARY OF ARGUMENT

This Court should deny the Petition, as Mr.

Negatu has waived and abandoned his arguments

regarding the timely filing of the Foreclosure Action

by the undisputed owner of the Note with standing

and the right to enforce it, which is central to his

appeal herein. Even if the Court were to overlook his

waiver and abandonment of defenses, Mr. Negatu has

not offered any compelling reason for this Court to

grant certiorari in accordance with Supreme Court

Rule 10. Nowhere in his Petition does Mr. Negatu

identify any decision by a federal Court of Appeals on

a matter relevant to his case that is in conflict with a

decision by another federal Court of Appeal. Nor has

he identified a decision by a federal Court of Appeal

on an important federal question relevant to his case

that conflicts with a decision by a state court of last

resort or a relevant decision of this Court. The

Petition also failed to identify any departure from the

accepted and usual course of judicial proceedings by

the lower courts in this case. Thus, the established

criteria for granting further review in this Court have

not and cannot be met. While couched in due process

terms, the Petition merely consists of a challenge to

the factual findings of the Superior Court below and

its application of the well settled rule of law

concerning summary judgments.

Under such

circumstances, a “petition for a writ of certiorari is

rarely granted.” U.S. Sup. Ct. R. 10.

6

The Court should not be swayed by Mr. Negatu’s

unsubstantiated conjecture that unnamed borrowers

of certain racial and ethnic backgrounds are deprived

of due process under the judicial foreclosure process

set forth in the District of Columbia Code, as there is

no evidence in the record to support his position.

Instead, the record shows that prior to the entry of

summary judgment below, Mr. Negatu was given

notice and the opportunity to present evidence of a

dispute of material fact below and failed to do so. As

such, Mr. Negatu’s assertions are not proper for this

Court’s review, as they are merely “a challenge to the

factual findings of the court and/or a misapplication

of a properly stated rule of law.” U.S. Sup. Ct. R. 10.

REASONS FOR DENYING THE PETITION

The principal purpose for certiorari review “is to

resolve conflicts among the United States courts of

appeals and state courts concerning the meaning of

provisions of federal law.” Braxton v. United States,

500 U.S. 344, 347 (1991) (citing Supreme Court Rule

10.1). Here no such conflict exists, nor has one been

properly preserved.

I. Mr. Negatu’s Constitutional Arguments Were

Not Raised or Preserved Below

Nowhere in his Petition or in the record below is

there any evidence which supports Mr. Negatu’s

conclusory assertion in his petition that he (and other

unnamed borrowers) were denied due process or

equal protection under the District of Columbia’s

judicial foreclosure process. Instead, Mr. Negatu

spends six pages of argument in his Petition setting

forth

overgeneralizations

and

unsupported

suppositions in an effort to persuade this Court to

grant review. Petition pp. 4-11.

7

New arguments cannot be raised for the first time

in a Petition for Certiorari. See United States v. Jones,

565 U.S. 400, 412 (2012) (stating that an argument

raised for the first time in the Supreme Court may be

forfeited); Gonzalez v. Duenas-Alvarez, 549 U.S. 183,

194 (2007) (“[T]he lower court did not consider the

claims, and we decline to reach them in the first

instance.”).

Accordingly, the Court should not

consider Mr. Negatu’s due process or equal protection

arguments. Even if the Court elects to consider such

arguments, they would fail as the record demonstrates

that Mr. Negatu has had sufficient notice and

opportunity to be heard and present evidence prior to

the entry of summary judgment below.

“The fundamental requirement of due process is

the opportunity to be heard at a meaningful time and

in a meaningful manner.” Mathews v. Eldridge, 424

U.S. 319, 333 (1976) (citations omitted). In an attempt

to generate a federal question for this Court’s review,

Mr. Negatu argues for the first time on Pages 24-25 of

his Petition, that the Superior Court’s single

paragraph of factual findings in the 4/4/17 Order

violated his right to due process. In support of this

newly advanced position that the judicial foreclosure

process violates a borrower’s due process rights, Mr.

Negatu relies on Connecticut v. Doehr, 501 U.S. 1

(1991). Doehr is plainly distinguishable from this

case because it concerned an ex parte prejudgment

attachment remedy which, unlike the summary

judgment process below, did not provide for prior

notice or hearing. Id. at 24.

The instant case and the foreclosure process in the

District

Columbia

Code

are

completely

distinguishable from the ex parte prejudgment

attachment remedy at issue in Doehr. Here, the

8

record below makes clear that not only did Mr. Negatu

have ample notice and opportunity to be heard, he

participated in the Foreclosure Action.

First

representing himself and subsequently with the

assistance of counsel, Mr. Negatu filed an Answer

(admitting Wells Fargo’s rights as note holder),

engaged in discovery, attended mediations, and

opposed the motion for entry of summary judgment

(albeit without offering evidence). That his arguments

in opposition to the motion for summary judgment

were not accepted by the Superior Court does not

constitute a deprivation of due process nor did the

Superior Court’s brief recitation of factual findings in

support of its summary judgment order.

Thus, Mr. Negatu’s effort to generate a federal

question in his Petition by asserting for the first time

therein, constitutional arguments that were not

raised or preserved below, and which are not

supported by the record below, falls far short of

meeting the standards for certiorari review by this

Court.

II. Summary Judgment Was Properly Entered

Below

Summary judgment is properly entered where

there is no genuine dispute of material fact, and the

moving party is entitled to judgment as a matter of

law. D.C. Super. Ct. R. 56. Here, the Superior Court

properly found that, pursuant to Section 42-816 of the

D.C. Code, the undisputed record reflected that Mr.

Negatu executed the Note and Deed of Trust, that he

defaulted on the Note, that the default was not cured,

and that, as the acknowledged owner of the Note,

Wells Fargo was entitled to enforce the Note and Deed

of Trust. See 4/4/17 Order, App.7a, n.1. Thus, the

9

Superior Court properly “order[ed] and decree[d] that

said property be sold and the proceeds be brought into

court to be applied to the payment of the debt secured

by said mortgage.” D.C. Code Ann. § 42-816. Mr.

Negatu never offered any evidence to dispute any of

these facts which entitled Wells Fargo to judgment.

Bruno v. Western Union Fin. Servs., Inc., 973 A.2d

713, 717 (D.C. 2009). As such, summary judgment

was properly entered by the Superior Court and

properly affirmed by the Court of Appeals.

Because the record is void of evidence sufficient to

generate a dispute of the material fact, Mr. Negatu

instead attempted to challenge well-settled law by

asserting several arguments for the first time in the

Court of Appeals and by attempting to assert a

constitutional challenge for the first time in his

Petition (which fails for the reasons stated in Section

I above). As none of these arguments were preserved

in the Superior Court, they should not be considered

in support of the Petition. However, to the extent this

Court elects to entertain Mr. Negatu’s arguments,

they nevertheless fail.

A. Petitioner Admitted Below That Wells

Fargo Had Standing to Foreclose

In Section IV of his Petition, Mr. Negatu questions

Wells Fargo’s standing to enforce the Note and Deed

of Trust because it has not been “proven factually ...

at the Trial level.” Petition 22-23. Mr. Negatu then

offers a summary of commercial law and negotiable

instruments. Notably, in the Foreclosure Action, Mr.

Negatu did not plead a defense of lack of standing in

his Answer, nor did he ever attempt to amend that

Answer. In fact, he admitted that Wells Fargo was

the beneficiary under the Deed of Trust with the right

10

to enforce, and never offered any evidence to refute

Wells Fargo’s discovery responses under oath that it

was the Noteholder and successor in interest to the

originating lender. Under the summary judgment

standard, the non-moving party must “show the

existence of an issue of material fact ... at least enough

evidence to make out a prima facie case in support of

[his] position.” Bruno v. Western Union Fin. Servs.,

Inc., 973 A.2d 713, 717 (D.C. 2009). There is nothing

in the record below that would give rise to a factual

dispute as to Wells Fargo’s status as the beneficiary

of the Deed of Trust and current holder of the Note.

As such, by his own admissions, Mr. Negatu’s

contention that Wells Fargo’s standing had to be

determined at the “trial level” fails.

B. Petitioner’s Defenses Were Waived and

Abandoned By His Failure to Preserve

In his Petition and in his brief in Court of Appeals,

Mr. Negatu asserted that the Superior Court erred in

failing to address the following questions – which

were not presented, raised or preserved in the Superior

Court – before ruling on summary judgment: (1)

whether the statute of limitations applied to bar the

foreclosure, (2) whether the equitable doctrine of

laches applied to bar the foreclosure, (3) whether

Wells Fargo was the “holder” of the note and

beneficiary of the Deed of Trust (despite the fact that

Mr. Negatu admitted the same in his Answer, in his

Requests for Admissions, and did not challenge the

same below), (4) whether Wells Fargo had standing to

bring the foreclosure action, and (5) whether there

was an obligation to mitigate damages.

As these issues were not properly preserved below,

they should not be considered as grounds for

11

certiorari review. “For good reason, appellate courts

ordinarily abstain from entertaining issues that have

not been raised and preserved in the court of first

instance. That restraint is all the more appropriate

when the appellate court itself spots an issue the

parties did not air below, and therefore, would not

have anticipated in developing their arguments on

appeal.” Wood v. Milyard, 566 U.S. 463, 473 (2012).

Here, while the Court of Appeals ultimately

considered the arguments, it found them ineffective

(for the reasons stated herein) and affirmed the

Superior Court’s ruling, the defenses were never

raised and should be deemed waived. Further, none

of these arguments merit certiorari review, as they do

not give rise to a question of federal law or an

inconsistency between courts.

1. The Foreclosure Action Was Timely

Filed

“Ordinarily in civil litigation, a statutory time

limitation is forfeited if not raised in a defendant’s

answer or in an amendment thereto. An affirmative

defense, once forfeited is excluded from the case, and,

as a rule cannot be asserted on appeal.” Wood, 566

U.S. at 470 (2012) (citations omitted) (considering

whether a court of appeal can sua sponte raise a

question regarding the timeliness of a habeas

petition). The record below reflects that Mr. Negatu

did not raise an affirmative defense of statute of

limitations or an equitable defense of laches in his

Answer, his opposition to the motion for summary

judgment, or at any time in the trial court

proceedings. As such, it must be excluded from the

case.

12

To the extent this Court considers the arguments

set forth in the Petition at pages 16-22, Mr. Negatu’s

position that the Foreclosure Action was untimely

filed is a red herring. The Court of Appeals correctly

found that both the Note and Deed of Trust were

documents under seal given that both contained the

word “(SEAL)” at the end of the signature line on

which Mr. Negatu signed. Thus, the documents are

subject to the twelve-year limitations period. D.C.

Code Ann. § 12-301(6). As he did in the Court of

Appeals, Mr. Negatu argues herein that the word

“Seal” on the Deed of Trust was not sufficient to create

a sealed instrument in the promissory note and cites

Huntley v. Bortolussi, 667 A.2d 1362 (D.C. 1995) in

support.

Yet Mr. Negatu’s reliance on Huntley

remains misplaced and his argument ignores that his

signature on both the Deed of Trust and the Note were

followed by the word “Seal”.

Unlike the Note at issue herein, in Huntley, the

subject promissory note did not include the word “seal”

next to the borrower’s name while the deed of trust did.

As such, in Huntley, the Court of Appeals concluded

that because the deed of trust did not independently

contain a promise to pay (like the promissory note did),

an action to seek a personal judgment on the basis of

the promissory note was subject to the three-year

limitations period, as distinguished for an action for

foreclosure. Huntley, 667 A.2d at 1364. Where, as

here, the undisputed record shows that both the Note

and Deed of Trust were signed under seal, the

Petitioner’s reliance on Huntley is erroneous.

Mr. Negatu’s citation to Maryland and Virginia

law also ignores the clear pronouncement from the

DC Court of Appeals that:

13

When the instrument is made by an

individual, the word “seal” next to the

signature is “standing alone, sufficient to

create a sealed instrument entitled to the

twelve-year statute of limitations.”

Burgess [v. Square 3324 Hampshire Gardens

Apartments, Inc., 691 A.2d 1153, 1156–57

(D.C. 1997]. See also Phillips v. A & C

Adjusters, Inc., 213 A.2d 586, 586–87

(D.C.1965). To that end, we have said that the

presence of the word “seal,” in parentheses,

and opposite the signature “ ‘undoubtedly

evinces an intention to make the instrument a

sealed instrument [.]’ ” Burgess, supra, 691

A.2d at 1156 (quoting Harrod v. Kelly

Adjustment Co., 179 A.2d 431, 432

(D.C.1962)).

Murray v. Wells Fargo Home Mortg., 953 A.2d 308,

318 (D.C. 2008) (emphasis added).

As noted by the Petition, in Murray, the Court of

Appeals was asked to consider whether a settlement

agreement was subject to the three-year general

statute of limitations or the twelve-year limitations

period for documents under seal. In that case, the

settlement agreement at issue did not contain the

word “seal” and, thus, was subject to the three-year

limitations period. Unlike the Murray settlement

agreement and the note in the Huntley case, the Note

and Deed of Trust in this case both contained the

word “(SEAL)” after the signature of Mr. Negatu.

Accordingly, both documents are subject to the

twelve-year statute of limitations applicable to sealed

instruments under D.C. law and, thus, the Court of

Appeals correctly found that the Foreclosure Action

was timely.

14

2. The Equitable Doctrine Of Laches Does

Not Apply

Mr. Negatu also argues that the Foreclosure Action

should be barred by laches, another defense which was

not preserved in his Answer or his Opposition to the

Motion for Summary Judgment below, but rather was

raised for the first time in his brief in the Court of

Appeals. The Court of Appeals properly held that the

defense of laches had not been preserved and did not

apply. In his Petition, Mr. Negatu merely recites the

standard for the defense of laches, but points to no

evidence in the record to support such a defense or

how the application of the undisputed facts herein to

the well-settled law, constitutes a compelling reason

for certiorari review.

The record is void of any evidence of prejudice to

Mr. Negatu as a result of an alleged unreasonable

delay. Bannum Inc. v. District of Columbia Bd. Of

Zoning Adjustment, 894 A.2d 423, 431 (D.C. 2006).

Instead, the delay in foreclosing was in part due to the

Saving D.C. Homes From Foreclosure Act of 2010

(legislation passed in an attempt to remedy, in part,

the due process questions that arose from non-judicial

foreclosure sales) and, thus, was not unreasonable.

Moreover, Mr. Negatu has not (and could not) offer

evidence of prejudice in any way as he continued to

enjoy the benefits of residing in or owning a property

for which he did not pay for more than nine years.

To the extent Mr. Negatu contends that he has

somehow been prejudiced because Wells Fargo failed to

“mitigate its damages” (see Petition 23-24), this

assertion also fails. Mr. Negatu filed for bankruptcy in

December 2008 and received a discharge in April 2009.

App. 5a. Accordingly, the Court of Appeals properly

15

found that because Mr. Negatu had been discharged

from any personal liability he could not be pursued for

any deficiency over and above the sale price of the

Property at foreclosure and, therefore, any increase in

costs or interest resultant from the “delay” in filing the

Foreclosure Action caused him no harm. Id. Thus, Mr.

Negatu’s belated and unpreserved argument that this

foreclosure action is barred by laches, like his other

arguments, lacked merit and fails to meet the

standard for further review by this Court.

CONCLUSION

For the foregoing reasons, the Petitioner has not

offered any compelling reason in support of certiorari

review. As such, Wells Fargo respectfully requests

that the Petition for a Writ of Certiorari be denied.

Respectfully Submitted,

/s/ Virginia W. Barnhart

Virginia W. Barnhart

Counsel of Record

WOMBLE BOND

DICKINSON (US) LLP

100 Light Street, 26th Floor

Baltimore, MD 21202

Phone: (410) 545-5803

Virginia.Barnhart@wbd-us.com