Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

No. 11-1423 UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT LORI WIGOD Plaintiff-Appellant, v. WELLS FARGO BANK, N.A. d/b/a WELLS FARGO HOME MORTGAGE f/k/a WACHOVIA MORTGAGE, FSB, Defendant-Appellee.

On Appeal from the United States District Court For the Northern District of Illinois, Case No. 1:10-cv-2348 The Honorable Blanche M. Manning, United States District Judge. BRIEF FOR DEFENDANT-APPELLEE WELLS FARGO BANK, N.A. Michael J. Hayes Jessica A. Baer K&L GATES LLP 70 W. Madison St., 3100 Chicago, IL 60602 Tel: (312) 372-1121 Fax: (312) 312-8000 Irene C. Freidel (counsel of record) David D. Christensen K&L GATES LLP State Street Financial Center One Lincoln Street Boston, MA 02111 Tel: (617) 261-3100 Fax: (617) 261-3175 Counsel for Defendant-Appellee Wells Fargo Bank, N.A.

The Clerk's Office recommends that you save this file locally to your computer and then fill it out. This way you can file the document via ECF, retain an electronic copy for your records or print a personal copy for your files.

Save Form As
MS Word file

Clear Form
WordPerfect file

Case: 11-1423
Appellate Court No: 11-1423

CIRCUIT RULE 26.1

Document: 21 22

DISCLOSURE STATEMENT

Filed: 09/14/2011

Pages: 63

Short Caption: Lori Wigod v. Wells Fargo Bank, N.A. To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1. The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to complete the entire statement and to use N/A for any information that is not applicable if this form is used. [ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED AND INDICATE WHICH INFORMATION IS NEW OR REVISED.

(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3):
Wells Fargo Bank, N.A.

(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court:
K&L Gates LLP

(3) If the party or amicus is a corporation: i) Identify all its parent corporations, if any; and
Wells Fargo & Co.

ii) list any publicly held company that owns 10% or more of the partys or amicus stock:
N/A

Attorney's Signature:

/s/ Irene C. Freidel

Date: September 14, 2011

Attorney's Printed Name: Irene C. Freidel Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Address: Yes No

K&L Gates LLP, One Lincoln Street, State Street Financial Center
Boston, MA 02111

Phone Number: (617) 261-3100 E-Mail Address: irene.freidel@klgates.com

Fax Number: (617) 261-3175

rev. 01/08 AK
Save Form As Clear Form

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

TABLE OF CONTENTS I. II. III. IV. JURISDICTIONAL STATEMENT ..................................................................................1 STATEMENT OF ISSUES PRESENTED FOR REVIEW..............................................2 STATEMENT OF THE CASE..........................................................................................3 STATEMENT OF FACTS ................................................................................................5 A. The HAMP Program ............................................................................................5 1. 2. 3. B. V. VI. VII. The creation of HAMP .............................................................................5 The Servicer Participation Agreement...................................................6 HAMP guidelines .....................................................................................7

The Wigod Loan .................................................................................................10

SUMMARY OF ARGUMENT.......................................................................................11 STANDARD OF REVIEW .............................................................................................13 ARGUMENT ...................................................................................................................14 A. The District Court Correctly Held That Wigods State Law Claims Are An Impermissible End-Run Around The Lack Of A Private Right Of Action In EESA And HAMP .............................................................................14 Wigods State Law Claims As Applied Are Preempted ...............................21 1. 2. C. Wigods claims are barred under principles of conflict preemption ..............................................................................................21 Wigods state law claims are subject to field preemption by virtue of the Home Owners Loan Act (HOLA).............................25

B.

Wigod Failed To Allege A Breach Of Contract With Respect To Her TPP. .......................................................................................................................29 1. 2. 3. The TPP is not an enforceable offer. ................................................30 Wigod has not alleged facts reflecting consideration....................32 The TPP does not contain definite and certain terms....................34

- ii -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

D. E.

The District Court Properly Dismissed Wigods Promissory Estoppel Claim. ...................................................................................................................36 The District Court Correctly Held That Wigod Failed To Allege A Valid ICFA Claim. ..............................................................................................37 1. 2. 3. Wigod offers no well-pleaded factual allegations that Wells Fargo intended Wigod to rely on its alleged deception....................37 Wigod failed to allege that she suffered actual damages. ................38 The District Court properly held that Wigods claim that Wells Fargo engaged in unfair conduct did not state a claim under ICFA..........................................................................................................40

F.

The District Court Properly Dismissed Wigods Misrepresentation Claims Because She Failed To Plead That She Justifiably Relied Upon Statements In The TPP. ......................................................................................41 The Moorman Or Economic Loss Doctrine Bars Wigods NegligenceBased Claims; Wigod Failed To Sufficiently Allege The Elements Of

G.

Each Such Claim. ............................................................................................................44 1. 2. 3. Dismissal of Wigods negligence-based claims should be affirmed based on the economic loss doctrine. ..............................44 Dismissal of Wigods negligent hiring claim should be affirmed....................................................................................................46 The District Courts dismissal of Wigods negligent or fraudulent misrepresentation/concealment should be affirmed. ...47 (a) (b) (c) VIII. Wigod failed to allege with specificity facts showing that Wells Fargo had a scheme to defraud Wigod. ......................47 Wigod failed to allege that she was damaged by Wells Fargos conduct...........................................................................47 Wigod failed to allege that Wells Fargo owed her a duty. ...48

CONCLUSION................................................................................................................49

CERTIFICATE OF COMPLIANCE WITH FED. R. APP. PROC. 32(a)(7) ..........................50

- iii -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

TABLE OF AUTHORITIES Federal Cases A/S Apothekernes Laboratorium for Specialpraeparater v. I.M.C. Chemical Group, Inc., 873 F.2d 155 (7th Cir. 1989)............................................................................................30 Adams v. U.S. Bank, 2010 WL 2670702 (E.D. Mich. July 1, 2010) .................................................................48 American United Logistics, Inc. v. Catellus Development Corp., 319 F.3d 921 (7th Cir. 2003)............................................................................................45 Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) ..........................................................................................13, 40, 44 Association Benefit Services, Inc. v. Caremark RX, Inc., 493 F.3d 841 (7th Cir. 2007)......................................................................................29, 34 Aux Sable Liquid Products v. Murphy, 526 F.3d 1028 (7th Cir. 2008)..........................................................................................22 Ayers v. General Motors Corp., 234 F.3d 514 (11th Cir. 2000)........................................................................16, 17, 19, 21 Baltazar v. Premium Capital Funding, 2011 WL 3841450 (D. Utah Aug. 26, 2011) ..................................................................20 Barinaga v. JP Morgan Chase & Co., 749 F. Supp. 2d 1164 (D. Or. 2010)................................................................................34 Bell Atlantic v. Twombly, 550 U.S. 544 (2007) ..........................................................................................................13 Biggins v. Wells Fargo & Co., 266 F.R.D. 399 (N.D. Cal. 2009) .....................................................................................29 Bosque v. Wells Fargo Bank, N.A., 762 F. Supp. 2d 342 (D. Mass. 2011) ............................................................24, 25, 31-32 Bower v. Jones, 978 F.2d 1004 (7th Cir. 1992)..........................................................................................47 Boyd v. U.S. Bank, N.A., ex rel. Sasco Aames Mortgage Loan Trust, --- F. Supp. 2d ----, 2011 WL 1374986 (N.D. Ill. Apr. 12, 2011)............................21, 41 Broder v. Cablevision Systems Corp., 418 F.3d 187 (2d Cir. 2005).......................................................................................15, 16 Brown v. First Tennessee National Association, 753 F. Supp. 2d 1249 (N.D. Ga. 2009) ...............................................................16, 17, 24

- iv -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

Buckman Co. v. Plaintiffs Legal Committee, 531 U.S. 341 (2001) ..............................................................................................23, 24, 25 Business Systems Engineering, Inc. v. International Business Machines Corp., 547 F.3d 882 (7th Cir. 2008)............................................................................................34 Casey v. FDIC, 583 F.3d 586 (8th Cir. 2009)............................................................................................27 Catalan v. GMAC Mortgage Corp., 629 F.3d 676 (7th Cir. 2011)............................................................................................45 Cobb-Alvarez v. Union Pacific Corp., 962 F. Supp. 1049 (N.D. Ill. 1997)..................................................................................30 Conboy v. AT &T Corp., 241 F.3d 242 (2d Cir. 2001).................................................................................15, 16, 18 Contempo Design, Inc. v. Chicago & Northeast Illinois District Council of Carpenters, 226 F.3d 535 (7th Cir. 2000)............................................................................................33 Copeland-Turner v. Wells Fargo Bank, N.A, --- F. Supp. 2d ----, 2011 WL 2650853 ((D. Or. July 6, 2011) ................................26, 28 Costigan v. CitiMortgage, Inc., 2011 WL 3370397 (S.D.N.Y. Aug. 2, 2011) ...................................................................36 Cox v. Mortgage Electronic Registration Systems, Inc., 2011 WL 2600700 (D. Minn. June 30, 2011) .................................................8, 14, 17, 20 Cozzi Iron & Metal, Inc. v. U.S. Office Equipment, Inc., 250 F.3d 570 (7th Cir. 2001)............................................................................................44 Crawford Supply Group, Inc. v. Bank of Am., N.A., 2011 WL 3793913 (N.D. Ill. Aug. 25, 2011) ..................................................................15 Dersch Energies, Inc. v. Shell Oil Co., 314 F.3d 846 (7th Cir. 2002)............................................................................................15 Duffy v. Ticketreserve, Inc., 722 F. Supp. 2d 977 (N.D. Ill. 2010) ..............................................................................41 Edwards v. Aurora Loan Services, LLC, --- F. Supp. 2d ----, 2011 WL 2340939 (D.D.C. June 14, 2011)..................................7, 8 First Place Bank v. Skyline Funding, Inc., 2011 WL 3273071 (N.D. Ill. July 27, 2011)....................................................................45 Fletcher v. OneWest Bank, FSB, --- F. Supp. 2d ----, 2011 WL 2648606 (N.D. Ill. June 30, 2011)......................14, 20, 25 Freedom Mortgage Corp. v. Burnham Mortgage Corp., 750 F. Supp. 2d 978 (N.D. Ill. 2010). .............................................................................45

-v-

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

Frye v. LOreal USA, Inc., 583 F. Supp. 2d 954 (N.D. Ill. 2008) ..............................................................................38 Gade v. National Solid Wastes Management Association, 505 U.S. 88 (1992) ............................................................................................................22 Geier v. American Honda Motor Co., 529 U.S. 861 (2000) ..........................................................................................................23 Geva v. Leo Burnett Co., 931 F.2d 1220 (7th Cir. 1991)..........................................................................................36 Graham v. Midland Mortgage Co., 406 F. Supp. 2d 948 (N.D. Ill. 2005) ..............................................................................49 Grill v. BAC Home Loans Servicing LP, 2011 WL 127891 (E.D. Cal. Jan. 14, 2011)...............................................................31, 34 Grochowski v. Phoenix Construction, 318 F.3d 80 (2d Cir. 2003).........................................................................................15, 16 Haehl v. Wash. Mutual Bank, F.A., 277 F. Supp. 2d 933 (S.D. Ind. 2003) .............................................................................27 Hicklin Engineering, L.C. v. Bartell, 439 F.3d 346 (7th Cir. 2006)..............................................................................................1 Hollymatic Corp. v. Holly Systems, Inc., 620 F. Supp. 1366 (N.D. Ill. 1985)..................................................................................47 Hukic v. Aurora Loan Services, 588 F.3d 420 (7th Cir. 2009)............................................................................................13 Ibrahim v. Mid-Atlantic Air of DC, LLC, F. Supp. 2d, 2011 WL 3489110 (D.D.C. Aug, 10, 2011) ..............................................16 In re Ocwen Loan Servicing, LLC Mortgage Servicing Litigation, 491 F.3d 638 (7th Cir. 2007)................................................................................25, 26, 27 In re Orthopedic Bone Screw Products Liability Litigation, 193 F.3d 781 (3d Cir. 1999).............................................................................................16 In re Salvador, --- B.R. ----, 2011 WL 1833188 (Bankr. M.D. Ga. May 12, 2011) ..........................34, 36 Kim v. Carters Inc., 598 F.3d 362 (7th Cir. 2010)............................................................................................38 Lonberg v. Freddie Mac, 2011 WL 838943 (D. Or. Mar. 4, 2011)..........................................................................31 Lucia/Corvello v. Wells Fargo Bank, N.A., --- F.Supp.2d ----, 2011 WL 3134422 (N.D. Cal. Apr 22, 2011) ................20, 31, 36, 42

- vi -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

Lund v. CitiMortgage Inc., 2011 WL 1873690 (D. Utah May 17, 2011) .............................................................31, 42 Marcus & Millichap Inv. Services of Chicago, Inc. v. Sekulovski, 639 F.3d 301 (7th Cir. 2011)......................................................................................13, 44 Marks v. Bank of America, N.A., 2010 WL 2572988 (D. Ariz. June 22, 2010) ...................................................................17 McInroy v. BAC Home Loan Servicing, LP, 2011 WL 1770947 (D. Minn. May 9, 2011) .............................................................17, 19 Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) ..........................................................................................................24 Mehta v. Wells Fargo Bank, N.A., 737 F. Supp. 2d 1185 (S.D. Cal. Aug. 26, 2010)......................................................33, 34 Mizrahi v. Wells Fargo Home Mortgage, 2010 WL 2521742 (D. Nev. June 16, 2010) ...................................................................34 Morales v. Chase Home Finance LLC, 2011 WL 1670045 (N.D. Cal. Apr. 11, 2011).................................................................20 Nadan v. Homesales, Inc., 2011 WL 3584213 (E.D. Cal. Aug. 12, 2011).......................................................8, 20, 34 Nance v. Maxwell Federal Credit Union (MAX), 186 F.3d 1338 (11th Cir. 1999)..................................................................................16, 20 Nash v. GMAC Mortgage, LLC, 2011 WL 2470645 (D.R.I. May 18, 2011).......................................................................20 National Railroad Passenger Corp. v. National Association of Railroad Passengers, 414 U.S. 453 (1974) ..........................................................................................................15 Norman v. Niagara Mohawk Power Corp., 873 F.2d 634 (2d Cir. 1989).............................................................................................16 Olson v. Jenkens & Gilchrist, 461 F. Supp. 2d 710 (N.D. Ill. 2006) ..............................................................................49 Parmer v. Wachovia, 2011 WL 1807218 (N.D. Cal. Apr. 22, 2011).................................................................28 Poco v. Wachovia Mortgage Corp., 2011 WL 2633298 (N.D. Cal. July 5, 2011) ...................................................................28 Pommier v. People Bank Marycrest, 967 F.2d 1115 (7th Cir. 1992)..........................................................................................35 Prince-Servance v. BankUnited, FSB, 2007 WL 3254432 (N.D. Ill. Nov. 1, 2007) ....................................................................27

- vii -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

Rackley v. JPMorgan Chase Bank, National Assn, 2011 WL 2971357 (W.D. Tex. Jul 21, 2011).............................................................20, 33 Remo v. Wachovia Mortgage, 2011 WL 3448234 (N.D. Cal. Aug. 5, 2011)............................................................26, 28 Runnemede Owners, Inc. v. Crest Mortgage Corp., 861 F.2d 1053 (7th Cir. 1988)..........................................................................................43 Salgado v. Americas Servicing Co., 2011 WL 3903072 (D. Ariz. Sept. 6, 2011) ....................................................................33 Sato v. Wachovia Mortgage, FSB, 2011 WL 2784567 (N.D. Cal. July 13, 2011) .................................................................26 Schultz v. Prudential Insurance Co. of America, 678 F. Supp. 2d 771 (N.D. Ill. 2010) ..............................................................................41 Schilke v. Wachovia Mortgage, FSB, 758 F. Supp. 2d 549 (N.D. Ill. 2010) ..............................................................................27 Shurtliff v. Wells Fargo Bank, N.A., 2010 WL 4609307 (D. Utah Nov. 5, 2010) ....................................................................31 Siegel v. Shell Oil Co., 612 F.3d 932 (7th Cir. 2010)............................................................................................37 Silvas v. E*Trade Mortgage Corp., 514 F.3d 1001 (9th Cir. 2008)..........................................................................................27 Snyder v. Wachovia Mortgage, 2010 WL 2736945 (E.D. Cal. July 12, 2010) ..................................................................29 Steffens v. American Home Mortgage Servicing, Inc., 2011 WL 901812 (D.S.C. Jan. 5, 2011) .............................................................................8 Stolba v. Wells Fargo & Co., 2011 WL 3444078 (D.N.J. Aug 08, 2011)................................................20, 31, 42-43, 49 Teamsters Local 282 Pension Trust Fund v. Angelos, 839 F.2d 366 (7th Cir. 1988)............................................................................................44 Touche Ross & Co. v. Redington, 442 U.S. 560 (1979) ..........................................................................................................15 Umland v. PLANCO Financial Services, Inc., 542 F.3d 59 (3d Cir. 2008)...............................................................................................15 Vida v. OneWest Bank, F.S.B., 2010 WL 5148473 (D. Or. Dec. 13, 2010) ......................................................................31 Wachovia Bank, N.A. v. Schmidt, 546 U.S. 303 (2006) ............................................................................................................1

- viii -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

Warren v. Bank of America, 2011 WL 2116407 (S.D. Ga. May 24, 2011)...................................................................17 Williams v. Geithner, 2009 WL 3757380 (D. Minn. Nov. 9, 2009).........................................................8, 17, 19 Zarif v. Wells Fargo Bank, N.A., 2011 WL 108560 (S.D. Cal. Mar. 23, 2011)..............................................................28, 29 Zoher v. Chase Home Financing, 2010 WL 4064798 (S.D. Fla. Oct. 15, 2010) ...................................................................24 State Cases Adler v. William Blair & Co., 648 N.E.2d 226 (Ill. App. Ct. 1995)..........................................................................43, 44 Anand v. Marple, 522 N.E.2d 281 (Ill. App. Ct. 1988)................................................................................35 Chatham Surgicore, Ltd. v. Health Care Service Corp., 826 N.E.2d 970 (Ill. App. Ct. 2005)................................................................................47 Connick v. Suzuki Motor Co., 675 N.E.2d 584 (Ill. 1996)....................................................................................48, 49, 51 Cooney v. Chicago Public Schools, 943 N.E.2d 23 (Ill. App. Ct. 2010).................................................................................39 DiLorenzo v. Valve & Primer Corp., 807 N.E.2d 673 (Ill. App. Ct. 2004)................................................................................33 Duran v. Leslie Oldsmobile, Inc., 594 N.E.2d 1355 (Ill. App. Ct. 1992)..............................................................................37 Fox Associates, Inc. v. Robert Half International, Inc., 777 N.E.2d 603 (Ill. App. Ct. 2002)................................................................................45 Luciani v. Bestor, 436 N.E.2d 251 (Ill. App. Ct. 1982)................................................................................43 Magna Bank of Madison County v. Jameson, 604 N.E.2d 541 (Ill. App. Ct. 1992)..........................................................................48, 49 McErlean v. Union National Bank of Chicago, 414 N.E.2d 128 (Ill. App. Ct. 1980)..........................................................................34, 35 Mitchell v. Norman James Construction Co., 684 N.E.2d 872 (Ill. App. Ct. 1997)................................................................................46 Moorman Manufacturing Co. v. National Tank Co., 435 N.E.2d 443 (Ill. 1982)..........................................................................................44, 45

- ix -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

Morris v. Harvey Cycle and Camper, Inc., 911 N.E.2d 1049 (Ill. App. Ct. 2009)........................................................................38, 40 Mulligan v. QVC, Inc., 888 N.E.2d 1190 (Ill. App. Ct. 2008)..............................................................................38 Neptuno Treuhand-Und Verwaltungsgesellschaft Mbh v. Arbor, 692 N.E.2d 812 (Ill. App. Ct. 1998)................................................................................48 Oliveira v. Amoco Oil Co., 776 N.E.2d 151 (Ill. 2002)................................................................................................40 Petty v. Chrysler Corp., 799 N.E.2d 432 (Ill. App. Ct. 2003)................................................................................39 Price v. Philip Morris, Inc., 848 N.E.2d 1 (Ill. 2005)........................................................................................38, 39, 40 Ross v. May Co., 880 N.E.2d 210 (Ill. App. Ct. 2007)................................................................................32 Schmidt v. Landfield, 169 N.E2d 229 (Ill. 1988).................................................................................................43 Suburban 1, Inc. v. GHS Mortgage, LLC, 833 N.E.2d 18 (Ill. App. Ct. 2005)..................................................................................37 Teachers Insurance & Annuity Association of America v. LaSalle National Bank, 691 N.E.2d 881 (Ill. App. Ct. 1998)................................................................................49 Van Horne v. Muller, 705 N.E.2d 898 (Ill. 1998)................................................................................................46 State Statutes 815 ILL. COMP. STAT. 505/10a ..........................................................................................4, 37, 38 Federal Statutes and Regulations 12 C.F.R. 560.1 ..........................................................................................................................26 12 C.F.R. 560.2 ....................................................................................................................26, 27 12 U.S.C. 1461 ...........................................................................................................................25 12 U.S.C. 5201 .............................................................................................................................5 12 U.S.C. 5211 .............................................................................................................................5 12 U.S.C. 5213 .............................................................................................................................5 12 U.S.C. 5219 .............................................................................................................................5

-x-

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

12 U.S.C. 5220 .............................................................................................................................5 12 U.S.C. 5519 .......................................................................................................................5, 17 12 U.S.C. 1553 ...........................................................................................................................26 28 U.S.C. 1291 .............................................................................................................................2 28 U.S.C. 1332 .........................................................................................................................1, 2 28 U.S.C. 1348 .............................................................................................................................1 Pub. L. No. 111-203, Stat. 13776 (2010) ....................................................................................26 Other Authorities 3 SAMUEL WILLISTON, A TREATISE ON THE LAW OF CONTRACTS 7:18 (4th ed. 2008).....33-34

- xi -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

I.

JURISDICTIONAL STATEMENT Plaintiff-appellant Lori Wigod (Wigod) filed this action against Wells Fargo Bank,

N.A. (Wells Fargo) on April 15, 2010. (Dckt. 1.) Wigods jurisdictional statement is not complete or entirely correct. The District Court had original jurisdiction over Wigods suit pursuant to both 28 U.S.C. 1332(a) and 1332(d). First, there is diversity of citizenship. Wigod is a citizen of Illinois. (Amended Complaint (Dckt. 1) (AC) 11.)1 Wells Fargo is a national banking association with its main office in South Dakota. (AC 12.) For jurisdiction purposes, national banking associations are deemed citizens of the States in which they are respectively located. 28 U.S.C. 1348. This statutory language means that a national banking association is a citizen of the state in which its main office, as set forth in its articles of association, is located, Wachovia Bank, N.A. v. Schmidt, 546 U.S. 303, 318 (2006), and its principal place of business is not relevant to the jurisdictional analysis. See Hicklin Engg, L.C. v. Bartell, 439 F.3d 346, 347-48 (7th Cir. 2006). The amount in controversy exceeds $75,000. Wigod seeks specific performance of a purported contract to modify her $728,500 mortgage loan serviced by Wells Fargo. (Mortgage, Dckt. 30-1 E; AC 69-70, 83 & Prayer for Relief C, H.) Wigod also seeks compensatory and punitive damages, as well as attorneys fees. (AC, Prayer for Relief A-J.) Pursuant to 28 U.S.C. 1332(a), complete diversity exists.

Citations to the record are indicated by the relevant district court docket number (Dckt.) and page range. Citations to the Joint Appendix are indicated by App. and page range.
1

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

Jurisdiction also exists under the Class Action Fairness Act (CAFA), 28 U.S.C. 1332(d), because (i) the nationwide putative class consists of at least 100 proposed class members (AC 50); (ii) the citizenship of at least one putative class member is different from that of Wells Fargo (see supra and AC 9); and (iii) the aggregate amount in controversy exceeds $5,000,000, exclusive of interest and costs (AC 9, 51). On January 25, 2011, the District Court granted Wells Fargos Rule 12(b)(6) motion to dismiss with prejudice. (Dckt. 59 (Order), 60.) This Court has jurisdiction over Wigods appeal under 28 U.S.C. 1291, which vests the Courts of Appeals with jurisdiction of appeals from all final decisions of the district courts of the United States. 28 U.S.C. 1291. II. STATEMENT OF ISSUES PRESENTED FOR REVIEW A. Whether the District Court correctly dismissed Wigods claims seeking to establish a violation of federal law and Congress provided no private right action under that law. B. Whether the District Courts decision should be affirmed under principles of conflict preemption where the claims, if successful, would require Wells Fargo to provide Wigod with a loan modification for which she does not qualify. C. Whether the District Courts decision should be affirmed under principles of field preemption (under the federal Home Owners Loan Act) where those claims, if successful, would substantially interfere with the ability of Wells Fargo to service residential mortgage loans.

-2-

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

D. Whether the District Court correctly dismissed Wigods misrepresentation claims because she failed to plead that she justifiably relied upon statements in her HAMP Trial Period Plan. E. Whether the District Court correctly held that Wigod failed to plead the elements of a claim under the Illinois Consumer Fraud Act (ICFA), including that Wigods failure to plead that she relied on any alleged deception or that Wigod suffered actual damages when she continues to be bound by the terms of her original loan documents. F. Whether the District Court could have properly dismissed Wigods state law claims, including her claim for breach of contract, on other grounds in the record. III. STATEMENT OF THE CASE Wigod filed this lawsuit to challenge Wells Fargos determination that she was not eligible for a permanent mortgage loan modification under the federal governments Home Affordable Modification Program (HAMP) and applicable investor guidelines. Wigod claims that Wells Fargo breached its obligations to her by violating and/or ignor[ing] HAMP guidelines. (Pl. Brief 21, 22.) In her Amended Complaint, Wigod seeks to represent a putative class of [a]ll homeowners nationwide who have entered into a [Trial Payment Plan (TPP)] Agreement with Wells Fargo for the purposes of modifying their home mortgages and, despite having complied with all terms of the TPP Agreement, have not received from Wells Fargo an offer for permanent modification. (AC 47.) Alternatively, Wigod seeks to represent a similarly-defined putative class limited to Illinois homeowners. (AC 48.)

-3-

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

Because there is no private right of action under HAMP (or the federal statute under which the program was created), Wigod brings her claims under Illinois law. Specifically, Wigod seeks relief based on breach of contract (Count I), promissory estoppel (Count II), breach of the Servicer Participation Agreement as an intended third-party beneficiary (Count III), negligent hiring and supervision (Count IV), fraudulent misrepresentation/concealment (Count V), negligent misrepresentation/concealment (Count VI), and violation of the ICFA, 815 Ill. Comp. Stat. 505/1, et seq. (Count VII). Wigod seeks, among other things, contract damages, an order requiring Wells Fargo to offer Wigod and the putative class members permanent HAMP modifications, punitive damages, and injunctive relief with respect to Wells Fargos servicing practices and its training and supervision of its servicing employees. (AC, Prayer for Relief A-L.) On July 23, 2010, Wells Fargo filed a Motion to Dismiss the Amended Complaint. (Dckt. 28.) On January 25, 2011, the District Court granted the Motion with prejudice. The District Court held, in part, that Wigods alleged offer to modify came about and was made wholly under the rubric of HAMP, as were [Wigods] alleged actions in acceptance of the offer, i.e., submitting the required documentation ... [and] remitting reduced loan payments. (Order 9 (internal quotation omitted).) The court therefore found that Wigod fail[ed] to state a cause of action independent of HAMP, for which there is no private right of action. (Id.)

-4-

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

IV.

STATEMENT OF FACTS A. The HAMP Program 1. The creation of HAMP

In early 2009, the U.S. Department of the Treasury (Treasury) established HAMP pursuant to Sections 101 and 109 of the Emergency Economic Stabilization Act of 2008 (EESA). The purposes of EESA include (1) to immediately provide authority and facilities that the Secretary of the Treasury can use to restore liquidity and stability to the financial system of the United States; and (2) to ensure that such authority and such facilities are used in a manner that[inter alia] preserves homeownership[.] 12 U.S.C. 5201. When enacting EESA, Congress gave Treasury broad powers to stabilize the financial markets, including the mortgage arena. Congressional Oversight Panel, April Oversight Report, at 151-52 (Apr. 14, 2010) (April Report), available at http://cybercemetery.unt.edu/archive/cop/20110401223225/http://cop.senate.gov/r eports/; see 12 U.S.C. 5211(c), 5213(3). Specifically, Section 109, captioned Foreclosure Mitigation Efforts, requires [ ] the Secretary to implement a plan that seeks to maximize assistance for homeowners, and use the authority of the Secretary to encourage the servicers of those underlying mortgages to avail themselves [of] the HOPE for Homeowners Program . . . or other available programs to minimize foreclosures. In addition, the Secretary also may use loan guarantees and credit enhancements to facilitate loan modifications to prevent avoidable foreclosures. April Report at 162 (quoting 12 U.S.C. 5219(a)); see also 12 U.S.C. 5220(b). HAMP uses TARP funds to enhance participation in the program and

-5-

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

provides monetary incentive payments to borrowers, lenders, and servicers. April Report at 25; see also (Supplemental Directive (SD) 09-01, App. 22-25); SD 10-05 at 6-7, available at https://www.hmpadmin.com/portal/programs/guidance.jsp; MHA Handbook Version 3.3, at 106-108.2 2. The Servicer Participation Agreement

On April 13, 2009, Wells Fargo and Fannie Mae, as financial agent for the United States, executed a Commitment to Purchase Financial Instrument and Servicer Participation Agreement for HAMP (SPA). (App. 98-116.) Wells Fargo and Fannie Mae executed an Amended SPA on March 16, 2010. (Dckt. 30-4.) The SPA sets forth the terms and conditions relating to the respective roles and responsibilities of Program participants and other financial agents of the government. (App. 98.) Further, the SPA provides that Freddie Mac, also as financial agent of the United States, will fulfill a compliance role in connection with the Program , (id.) and that Wells Fargos performance of the Services and implementation of the Program shall be subject to review by Freddie Mac and its agents and designees, (id., 99, 2.D). By executing the SPA, Wells Fargo agreed to perform the loan modification and other services described therein and set forth in the Program guidelines and

Prior to August 19, 2010, Treasury published its guidelines in the form of Supplemental Directives, FAQs, among other documents. Since August 2010, Treasury has published a consolidated handbook of programmatic guidance for non-GSE loans, available at https://www.hmpadmin.com/portal/programs/servicer.jsp. This brief generally cites to the original guidance documents applicable to Wigods loan, available at https://www.hmpadmin.com/portal/programs/guidance.jsp.

-6-

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

procedures issued by the Treasury, including , without limitation, the net present value assessment requirements of the Program, and any other supplemental documentation, instructions, bulletins, letters, directives, or other communications issued by the Treasury, Fannie Mae, or Freddie Mac (Id., 1.A.) The SPA also provides that disputes between the parties, i.e., Wells Fargo and Treasury, regarding HAMP requirements will be resolved in accordance with federal law and through alternative dispute mechanisms. (Dckt. 30-4, 12.A.) The SPA states that the parties agree to take all reasonable steps to resolve disputes internally before commencing legal proceedings. (Id.; App. 104, 7.) Consistent with this theme, SD 0901 also provides for an issue/resolution appeal process for servicer assessments. (App. 26.) It is well-established that borrowers, like Wigod, are not intended third-party beneficiaries of the SPA, and they do not have standing to enforce Wells Fargos obligations under the SPA as to their loans. See, e.g., Edwards v. Aurora Loan Servs., LLC, -- F. Supp. 2d ----, 2011 WL 2340939, at *5-6 (D.D.C. June 14, 2011) (collecting cases). Indeed, Wigod does not appeal the District Courts ruling that she is not a third-party beneficiary of the SPA. (Pl. Br. 4, n.4.) Nonetheless, all of Wells Fargos obligations under HAMP at issue in this appeal directly flow from the SPA. 3. HAMP guidelines

On March 4, 2009, the Administration published detailed program guidelines that set forth the procedures and criteria to be used by servicers to evaluate each borrowers HAMP eligibility. See http://www.treasury.gov/press-center/press-

-7-

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

releases/Pages/200934145912322.aspx. Treasury has since issued supplemental guidance on numerous occasions to adjust and enhance different components of the program and to answer questions raised by program participants, primarily loan servicers. See supra, footnote 2. The program guidelines set forth a defined loan modification process based on government and investor criteria. Using the guidelines, the loan servicer evaluates whether an individual loan may be modified in such a way as to achieve a sustainable monthly payment amount. Not all loans serviced by Wells Fargo are eligible for consideration for HAMP. (See SD 09-01, App. 2-3.) For example, some investors do not participate in HAMP, a result contemplated by HAMP guidelines. (Id., 1, 4 (participating servicers must make an effort to remove investor prohibitions on modifications; loans with a negative NPV result cannot be modified without express investor approval).) Further, contrary to Wigods repeated statements, the participating servicer is not required to modify every HAMP-eligible loan. 3 Using the borrowers verified income information, HAMP guidelines require a servicer to apply steps known as the waterfall. The waterfall is designed to achieve a monthly mortgage payment that is not more than 31% of a borrowers total pre-tax

EESA does not mandate loan modifications. Williams v. Geithner, 2009 WL 3757380, at *6 (D. Minn. Nov. 9, 2009); see also Nadan v. HomeSales, Inc., 2011 WL 3584213, at *8 (E.D. Cal. Aug. 12, 2011) (Defendants are correct that lenders retain the right to reject or structure modifications as appropriate to the individual circumstances of the borrower.); Cox v. Mortgage Elec. Registration Sys., Inc., 2011 WL 2600700, at *2 (D. Minn. June 30, 2011); Edwards, 2011 WL 2340939, at *6; Steffens v. Am. Home Mortgage Servicing, Inc., 2011 WL 901812, at *4 (D.S.C. Jan. 5, 2011).
3

-8-

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

monthly income. (SD 09-01, App. 8-10.) First, the servicer will reduce the interest rate to as low as 2%. (Id., 9.) Next, if necessary, the servicer will extend the loan term up to 40 years. (Id.) Finally, if necessary, the servicer will forebear repayment of principal until the loan is paid off and will waive interest on the deferred amount. (Id., 9-10.) Servicers are also permitted, at their discretion, to forgive principal to achieve the target monthly payment ratio where principal reduction is not otherwise required. (Id., 10.) If application of the waterfall does not result in an affordable payment, the loan does not qualify for a permanent modification. (Id., 8-10.) If application of the waterfall does produce an affordable payment, the servicer then subjects the loan to a net present value (NPV) test. If the NPV test produces a negative result (that is, losses from foreclosure are less than losses from modification), the servicer is not obligated to modify the loan. (Id., 4.) The servicer retains certain discretion as to how the NPV test is calculated. (Id., 5.). If a borrower qualifies for a permanent modification, she, among other things, must successfully complete a trial period plan or TPP. (Id., 17-18.) Significantly for purposes of this appeal, under original HAMP guidelines and initial Treasury policy, a participating servicer was authorized to place a borrower in a TPP before the servicer had obtained all information from the borrower necessary to make a final determination as to whether the borrower qualified for a permanent modification. (Id., 5-6, 17 ([s]ervicers are not required to verify financial information prior to the effective date of the trial period).) The servicer would thereafter permanently modify the borrowers loan only if all required conditions were met, including the borrower submitting all necessary income documentation from which the

-9-

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

servicer can verify the borrowers qualifications for a permanent modification, the borrower making all timely payments under the TPP, and the servicer ensuring that all investor criteria for a modification are satisfied. (Id., 1, 4, 8-9, 17-18.) As a Congressional Oversight Panel noted in its April Report, the Treasury initially decided to allow servicers to offer [TPPs] based on stated or verified income so that the program could reach a larger number of borrowers in the shortest amount of time in order to stem the flood of foreclosures that many saw coming. This was part of a general decision to roll out HAMP very quickly. (App. 132.) Under this policy, numerous borrowers were placed in a TPP before they had submitted all of the necessary documentation from which the servicer could make a final eligibility determination. As a result, thousands of TPP borrowers like Wigod did not convert to permanent modifications. On January 28, 2010, Treasury issued SD 10-01, which effective June 1, 2010 required servicers to verify borrower eligibility for a permanent modification prior to offering a TPP. (App. 39-51.) Wigods loan preceded this significant program change.4 B. The Wigod Loan

Wigod obtained a mortgage loan from Wachovia Mortgage, FSB on or about September 4, 2007. (AC 29.) (Wachovia later merged into Wells Fargo.) The $728,500 loan was secured by Wigods condominium. At some time thereafter, Wigod found herself in imminent default on her mortgage loan. In April 2009, she contacted Wells

Wells Fargo independently made this change in March 2010.

- 10 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

Fargo to apply for a loan modification. (Id. 30.) Determining that she was eligible to start a TPP modification under the new HAMP program, Wells Fargo provided Wigod with a trial plan in May 2009. (Id. 31, 34.) After receiving and executing her TPP, Wigod alleges that she sent further documents to Wells Fargo that were necessary to determine her eligibility. (Id. 32.) Wigod also made each of the four modified payments due under her TPP. (Id. 37.) At the end of the trial period, Wells Fargo did not provide Wigod with a permanent modification agreement. (Id. 39.) On November 13, 2009, Wells Fargo sent Wigod a letter stating that it could not adjust the terms of her mortgage because we are unable to get you to a modified payment amount that you could afford per the investor guidelines on your mortgage. (App. 121.) On November 15, 2009, Wells Fargo notified Wigod that it considered her loan to be in default. (AC 42.) Over the next several months, Wigod unsuccessfully challenged Wells Fargos decision not to permanently modify her loan. (Id. 43.) Wigod believes that Wells Fargo wrongfully concluded that she did not qualify for an offer for permanent modification. (Id.) V. SUMMARY OF ARGUMENT The District Court properly dismissed this lawsuit as a matter of law and numerous grounds support affirmation of the District Courts judgment. Wigod is not entitled to a permanent modification under HAMP, and Wells Fargo was under no obligation to permanently modify Wigods loan solely because Wigod made payments under her TPP and provided Wells Fargo with requested documentation. A critical component of

- 11 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

the loan modification process is verification by the servicer that the borrower satisfies all government and investor criteria for a permanent modification. Wigod did not satisfy these criteria, and she does not allege that she did. Instead, Wigod attempts to use state law to compel Wells Fargo to permanently modify her loan under HAMP even though doing so would directly contradict HAMP guidelines and Wells Fargos contractual obligations to the United States. Wells Fargos HAMP obligations flow directly from its SPA with the Treasury. Wigod is not an intended third-party beneficiary under the agreement, nor does she have a private right of action to enforce the programs requirements. Numerous federal cases establish that state laws should not be used as a stand-in for a federal cause of action when Congress provided no such rights in the governing statute. Further, Wigods state law claims, as applied, are subject to both conflict and field preemption. As to the first, compliance with Wigods proposed standards and those imposed on Well Fargo under HAMP guidelines directly conflict and, as to the latter, Wigods claims would substantially interfere with Wells Fargos ability to service residential mortgage loans. In addition, Wigods claims would frustrate Congressional objectives by discouraging servicer participation in HAMP, interfering with federal oversight and enforcement of the program, and imposing fifty states laws on an already complex, but defined, federal modification program. To the extent that Wigod is permitted to enforce HAMP through state law, she has nonetheless failed to plead the required elements of each of her claims. For example, Wigod could not plead misrepresentation because she has not and could not allege

- 12 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

that she justifiably relied on statements in her TPP where that document clearly stated that Wigod would not receive a permanent HAMP modification unless all conditions were met. Wigod could not plead a violation of ICFA because, among other things, she has not alleged that Wells Fargo intended that she rely on any alleged deception or that she suffered any actual damages. While Wigod ceased making mortgage payments long ago (even though she continues to live in her property), she has never been relieved of her obligations under her original loan documents and Wells Fargo has never waived its right to collect such payments as Wigods loan servicer. For all of the reasons stated by the District Court, and on grounds discussed more fully below, Wells Fargo respectfully requests that this Court affirm the District Courts judgment in full. VI. STANDARD OF REVIEW This Court reviews de novo a district courts dismissal for failure to state a claim. Hukic v. Aurora Loan Servs., 588 F.3d 420, 434 (7th Cir. 2009). When reviewing a motion to dismiss, the Court must ask whether the plaintiff has made allegations that raise a right to relief above the speculative level and state a claim to relief that is plausible on its face. See Bell Atl. v. Twombly, 550 U.S. 544, 555, 570 (2007); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). In addition, the Court may affirm dismissal on any grounds in the record below, even where those grounds were not the basis of the district courts opinion. See Marcus & Millichap Inv. Servs. of Chi., Inc. v. Sekulovski, 639 F.3d 301, 312 (7th Cir. 2011).

- 13 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

VII.

ARGUMENT A. The District Court Correctly Held That Wigods State Law Claims Are An Impermissible End-Run Around The Lack Of A Private Right Of Action In EESA And HAMP.

HAMP provides the determinative law that governs the outcome of Wigods claims; those claims, to be resolved, would require litigation of contested issues of federal law, for example, regarding the requirements that Wells Fargo was obligated to follow under HAMP, and whether Wells Fargo satisfied those requirements. Because the outcome of Wigods claims depends almost, if not, entirely upon application of federal law standards, her claims cannot be resolved under state law. For that reason, Wigods claims are HAMP claims in disguise, and the District Court correctly concluded that they are an end-run around the lack of a private right of action in EESA and HAMP. If Congress had intended courts to be adjudicating whether a borrower qualified for a loan modification under EESA or HAMP, it would have provided a private right of action but it chose not to do so.5 The District Courts decision that Wigod fail[ed] to state a cause of action independent of HAMP, for which there is no private right of action should be affirmed. While Wigod asserts that there is no rule of law that supports the District Courts holding (Pl. Br. 18, and citing Fletcher v. OneWest Bank, FSB, --- F. Supp. 2d ----, 2011 WL 2648606, at *4 (N.D. Ill. June 30, 2011)), she is incorrect. It is a principle of statutory construction that when legislation expressly provides a particular remedy or remedies, It is beyond dispute (as Wigod recognizes) that neither EESA nor HAMP provides borrowers with the right to privately enforce its terms to obtain a permanent HAMP modification. See, e.g., Cox, 2011 WL 2600700, at *3; (Pl. Br. 12-13, 15-16.)
5

- 14 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

courts should not expand the coverage of the statute to subsume other remedies. Conboy v. AT &T Corp., 241 F.3d 242, 253 (2d Cir. 2001) (quoting Natl R.R. Passenger Corp. v. Natl Assn of R.R. Passengers, 414 U.S. 453, 458 (1974)); Dersch Energies, Inc. v. Shell Oil Co., 314 F.3d 846, 857 (7th Cir. 2002); see also Umland v. PLANCO Fin. Servs., Inc., 542 F.3d 59, 67 (3d Cir. 2008) (reading federal law into contract would contradict Congresss decision not to include expressly a private right of action). [W]hen Congress wished to provide a private damage remedy, it knew how to do so and did so expressly. Touche Ross & Co. v. Redington, 442 U.S. 560, 572 (1979). Congress did not provide a private remedy to borrowers who seek to challenge HAMP eligibility determinations. Broder v. Cablevision Systems Corp., 418 F.3d 187 (2d Cir. 2005), is instructive. There, a cable TV customer sued Cablevision for breach of contract because, by offering certain rates to some but not all of its customers, Cablevision violated the uniform rate requirement of 47 U.S.C. 543(d), among other laws. Id. at 192. Through state law, Broder sought a declaratory judgment stating that Cablevision had violated 47 U.S.C. 543(d). Id. at 195. Federal law provided cable customers with no private right of action, and the court held that the lack of a private right of action could not be avoided via a breach of contract claim because a federal court should not strain to find in a contract a state-law right of action for violation of a federal law under which no private right of action exists. Id. at 198 (citing Grochowski v. Phoenix Constr., 318 F.3d 80 (2d Cir. 2003)). The Second Circuit similarly held in Grochowski that a state-law suit for breach of a construction contract referencing prevailing wage schedules under the

- 15 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

Davis-Bacon Act could not avoid that Acts lack of a private right of action to enforce those wage schedules. 318 F.3d at 85; see also Ibrahim v. Mid-Atl. Air of DC, LLC, --- F. Supp. 2d ----, 2011 WL 3489110, at *2 (D.D.C. Aug, 10, 2011) (same). Broder also held that the lack of a private right of action could not be avoided by bringing claims under New Yorks deceptive practices statute (GBL 349). There, the court cited its earlier decision in Conboy, 241 F.3d 242, where the Second Circuit held that a plaintiff cannot circumvent the lack of a private right of action for violation of a New York state law by pleading his claim under GBL 349. Broder, 418 F.3d at 199. The Broder court noted, [w]ere we to hold that GBL 349 may be used to assert a private right of action for violation of a federal law otherwise lacking one, we would essentially be attributing to the New York legislature an intent to thwart Congresss intentions on a significant scale. Id.; see also Ayers v. Gen. Motors Corp., 234 F.3d 514, 524-25 (11th Cir. 2000) (borrower cannot use federal or state RICO to enforce federal regulations that lack private right of action); In re Orthopedic Bone Screw Prods. Liab. Litig., 193 F.3d 781, 791 (3d Cir. 1999); Nance v. Maxwell Fed. Credit Union, 186 F.3d 1338, 1342-43 (11th Cir. 1999) (affirming dismissal of state law conspiracy claim because enforcement of rights secured by federal law without private right of action would permit plaintiffs to make an end run around [the] federal statutory structure); Norman v. Niagara Mohawk Power Corp., 873 F.2d 634, 637-38 (2d Cir. 1989) (same); Brown v. First Tenn. Natl Assn, 753 F. Supp. 2d 1249, 1260 (N.D. Ga. 2009) (plaintiff could not use federal and state RICO to enforce VA lending guidelines where Congress provided only

- 16 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

administrative remedies and lender participation was encouraged). The same principle applies here. Congress placed responsibility on Treasury for implementing HAMP and for issuing guidance that sets forth the HAMP standards to be applied by servicers. See 12 U.S.C. 5519(a); see also Cox, 2011 WL 2600700, at *2; Williams, 2009 WL 3757380, at *3. Freddie Mac, the United States financial agent, is responsible for enforcing HAMP and ensuring that servicers comply with HAMP guidance. (App. 25, 98); Warren v. Bank of Am., 2011 WL 2116407, at *3 (S.D. Ga. May 24, 2011); McInroy v. BAC Home Loan Servicing, 2011 WL 1770947, at *3 (D. Minn. May 9, 2011) (HAMP designates Freddie Mac as the programs sole enforcement agent and provides consumers with a procedure for filing complaints with Freddie Mac.); Marks v. Bank of Am., N.A., 2010 WL 2572988, at *6 (D. Ariz. June 22, 2010) ([b]y delegating compliance authority to one entity, Freddie Mac, Congress intended that a private cause of action was not permitted).6 It would be inconsistent with HAMPs structure to provide borrowers with a right to seek judicial enforcement of HAMP guidelines through state law thus shifting interpretation of HAMPs requirements from the Treasury, and its agents, to the courts. See, e.g., Ayers, 234 F.3d at 524-25; Brown, 753 F. Supp. 2d at 1258. Not only would

Wigod seeks to challenge not only Wells Fargos determination that she did not qualify for a permanent HAMP modification, but also Wells Fargos procedures for complying with HAMP, including the manner in which it hired and supervised employees to meet its HAMP obligations. These obligations flow to Wells Fargo through its SPA. The Treasury is authorized, and uses its authority, to monitor and enforce the manner in which servicers are meeting their obligations under the SPA, and Wigod has no standing to do so.
6

- 17 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

numerous federal judges begin interpreting HAMP but, under Wigods approach, each states laws would be added to the mix, thus offering the prospect of numerous different interpretations being applied to the same servicer. This would undermine authority provided exclusively to governmental agencies by Congress.7 Nothing in the case law or EESA supports this result. As the Second Circuit noted analogously in Conboy, where a federal agency (there, the FCC) is responsible for interpreting and implementing a federal statute, a private right of action would be inconsistent with those powers because [p]rivate litigation tends to transfer regulatory interpretation and discretion from the agency to the courts. 241 F.3d at 253 (quoting Conboy v. AT&T Corp., 84 F. Supp. 2d 492, 501 (S.D.N.Y. 2000). The Second Circuit continued: a private right of action would place the FCCs interpretive function squarely in the hands of private parties and some 700 federal district judges, instead of in the hands of the Commission The result would be to deprive the FCC of necessary flexibility and authority in creating, interpreting, and modifying communications policy. New England Tel. & Tel. Co. v. Public Utils. Commn, 742 F.2d 1, 6 (1st Cir. 1984) [Breyer, J.]. It is highly unlikely, therefore, that Congress intended to create a private right of action for violations of FCC regulations. Such a right would threaten[] the sound development of a coherent nationwide communications policy a central objective of the [Communications] Act. Id. at 5.

EESA appoints a Special Inspector General of the Trouble Asset Relief Program (SIGTARP), which includes HAMP. The SIGTARP conducts audits and investigations, with subpoena power, with respect to TARP. The SIGTARP is also responsible for issuing quarterly reports to Congress. 12 U.S.C. 5231. EESA also gives oversight authority to the Financial Stability Oversight Board to make recommendations to Treasury, submit reports to Congress, and report fraud to the Attorney General or the Special Inspector General for TARP. 12 U.S.C. 5214. The Treasury also issues monthly and quarterly reports regarding servicers compliance with HAMP. (See, e.g., Dckt. 30-3.)
7

- 18 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

241 F.3d at 253; see also Ayers, 234 F.3d at 524-25; Brown, 753 F. Supp. 2d at 1258. A finding by this Court affirming the District Courts decision would not mean that Wigod or any other borrower would be without a remedy. A borrower who wishes to challenge a HAMP determination, or pursue a HAMP complaint, has several options including, for example: (1) using the extensive escalation process initiated by calling the HOPE Hotline (see Williams, 2009 WL 3757380, at *3); (2) submitting a complaint to Freddie Mac (see McInroy, 2011 WL 1770947, at *3); or (3) submitting a complaint to the OCC, the agency that oversees national banks, including Wells Fargo.8 More specifically, Fannie Mae contracts with the non-profit Homeownership Preservation Foundation to operate the HOPE Hotline through which borrowers may escalate concerns regarding how their HAMP application was handled.9 See Congressional Oversight Panel, December Oversight Report at 78, (Dec. 14, 2010), available at http://cybercemetery.unt.edu/archive/cop/20110401223225/ http://cop.senate.gov/reports/. Complaints from borrowers asserting that their modifications were wrongly denied are escalated to HUD-approved counselors who will initiate a three-way call with the servicer and borrower to resolve the issue. Id. If the counselor is unable to resolve the issue, the complaint may then be sent to the
8 9

See http://www.helpwithmybank.gov/contact-us/contact-the-occ.html.

Fannie Mae requires servicers to provide a Borrower Notice, which must include the HOPE Hotline number (and an explanation that the borrower can seek free assistance from HUD-approved housing counselors and can request assistance in understanding the notice by asking for MHA HELP), to all borrowers who have been evaluated for HAMP but were not offered a TPP, were not offered a HAMP modification, or are at risk of losing eligibility for HAMP because they have failed to provide required financial documentation. (See SD 09-08, Dckt. 47-4, 1-4.) - 19 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

counseling agencies management who will consult with higher-level officials at the servicer. Id. If the complaint remains unresolved at this stage, it is escalated to the HAMP Solution Center at Fannie Mae. Id. Complaints alleging that the servicer did not adhere to HAMP guidelines can be further escalated to the MHA Compliance Committee at Treasury, which is authorized to require the servicer to change a modification decision. Id. at 79. Accordingly, the lack of a private right of action does not leave a borrower who seeks to challenge a negative HAMP outcome without a process to do so. Numerous courts in federal jurisdictions around the country agree with the District Court in this case that a plaintiff may not pursue a state law cause of action that seeks to do nothing more than enforce HAMP. See, e.g., Baltazar v. Premium Capital Funding, 2011 WL 3841450, at *4 (D. Utah Aug. 26, 2011) (dismissing state law claims that are nothing more than disguised HAMP claims.); Nadan, 2011 WL 3584213, at *8; Stolba v. Wells Fargo & Co., 2011 WL 3444078, at *3 (D.N.J. Aug 08, 2011) (citing Wigod decision); Rackley v. JPMorgan Chase Bank, Natl Assn, 2011 WL 2971357, at *3 (W.D. Tex. Jul 21, 2011) (same); Cox, 2011 WL 2600700, at *3 (dismissing state law claims predicated on HAMP); Nash v. GMAC Mortgage, LLC, 2011 WL 2470645, at *12 (D.R.I. May 18, 2011); Lucia/Corvello v. Wells Fargo Bank, N.A., --- F. Supp. 2d ----, 2011 WL 3134422, at *6-7 (N.D. Cal. Apr 22, 2011) (same); Morales v. Chase Home Fin. LLC, 2011 WL 1670045, at *5 (N.D. Cal. Apr. 11, 2011) (same).10

The two cases that have expressly rejected Judge Mannings decision are in the Northern District of Illinois: Fletcher v. OneWest Bank, FSB, --- F. Supp. 2d ----, 2011 WL
10

- 20 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

HAMP was not intended to benefit every borrower, and, in EESA, Congress recognized that not every foreclosure is avoidable. Indeed, placing borrowers in modified loans that they cannot afford would perpetuate, rather than alleviate, the financial circumstances that EESA was intended to address. Wigods state law claims are not contract claims or unfair and deceptive practices claims. At their core, they are challenges to Wells Fargos determination that Wigod did not qualify for a HAMP modification agreement. Because Wigod does not have a right to seek a private remedy for a HAMP denial, the District Court properly dismissed her claims as a matter of law. See Ayers, 234 F.3d at 525.11 B. Wigods State Law Claims As Applied Are Preempted. 1. Wigods claims are barred under principles of conflict preemption.

The Court should reject Wigods argument on appeal that her claims are not preempted by federal law.12 As applied and if successful, Wigods state law claims would mandate a result directly at odds with HAMP, that is, the provision of HAMP

2648606 (N.D. Ill. June 30, 2011) and Boyd v. U.S. Bank, N.A., ex rel. Sasco Aames Mortgage Loan Trust, Series 2003-1, --- F. Supp. 2d ----, 2011 WL 1374986 (N.D. Ill. Apr. 12, 2011). For all of the reasons set forth above, including the supporting authority cited herein, Wells Fargo respectfully believes that Boyd and Fletcher were incorrectly decided. Neither EESAs savings clause (Pl. Br. 19) nor HAMPs caution to servicers that they must be in compliance with all federal, state, and local laws changes the analysis; neither of these provisions provides a private right of action. Indeed, HAMP guidelines state that servicers must be in compliance with Section 5 of the FTC Act (App. 12), under which private individuals have no right of action.
11

Wigod did not offer any arguments to the District Court regarding preemption. However, because she does so here, Wells Fargo responds.
12

- 21 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

loan modifications to borrowers who do not meet the Treasurys guidelines for qualification. Under those circumstances, state law [would] stand[] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Gade v. Natl Solid Wastes Mgmt. Assoc., 505 U.S. 88, 98 (1992) (internal quotations omitted). As this Court stated in Aux Sable Liquid Products v. Murphy, 526 F.3d 1028, 1034 (7th Cir. 2008): To determine whether state and federal law are in conflict, it is necessary to examine the federal statute as a whole and identify its purpose and intended effects. This analysis requires that we consider the relationship between state and federal laws as they are interpreted and applied, not merely as they are written. the crucial inquiry is whether state law differs from federal law in such a way that achievement of the congressional objective ... is frustrated. (internal quotations and citations omitted). Here, Wigods state law claims, if successful, would frustrate Congressional objectives in enacting EESA, which was, in part, to stabilize the economy and provide a program to mitigate avoidable foreclosures.13 Wigod seeks an order that her TPP was a contract that obligated Wells Fargo to provide her with a permanent modification once she made her trial payments and provided requested documentation. If Wigod were to obtain the relief she seeks, Wells Fargo could be ordered to either modify her loan, leading to the perverse result of placing Wells Fargo in default of its SPA with the government, (App. 102, 6.A.1), pay Wigod damages, or both.

13

EESA does not contain an express preemption provision.

- 22 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

Moreover, the Treasurys authority, and the remedies it utilizes, would be skewed by imposing on servicers private claims to enforce HAMP brought under the various states statutory and common laws. See, e.g., Buckman Co. v. Plaintiffs Legal Committee, 531 U.S. 341, 348 (2001). State law claims challenging servicers HAMP determinations and efforts to comply with the program would inevitably conflict, not only with HAMP guidelines themselves, but with the Treasurys responsibility to enforce HAMP consistently with the Administrations judgment and objectives. Id. at 349-50 (complying with the FDAs detailed regulatory scheme in the shadow of 50 States tort regimes will dramatically increase the burdens facing program participants, burdens not contemplated by Congress in enacting the federal statutes at issue). In Geier v. Am. Honda Motor Co., 529 U.S. 861 (2000), the Supreme Court held that a negligence action, based on a failure to install drivers side airbags, was impliedly preempted because it would have impermissibly conflicted with a Department of Transportation standard that required manufacturers to install such airbags in only certain cars. Id. at 881-82. In reaching its conclusion, the Court noted that the rules of law that judges and juries create or apply in such suits may themselves similarly create uncertainty and even conflict, say, when different juries in different States reach different decisions on similar facts. Id. at 871. By imposing after-the-fact private claims on a servicer that is bound to apply the Treasurys HAMP standards to each borrower, a servicer will be subjected to standards that not only differ from federal law (and its contractual requirements under the SPA), but also from the standards set in courtrooms in different states. The imposition on

- 23 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

participating servicers of legal duties at odds with the requirements of EESA and HAMP would render compliance with the varying standards impossible. As in Buckman, servicers as HAMP participants could be discouraged from engaging in HAMP altogether to avoid being exposed to unpredictable civil liability in connection with the public modification program. See Zoher v. Chase Home Financing, 2010 WL 4064798, at *4 (S.D. Fla. Oct. 15, 2010) ([f]inding an implied private right of action for mortgagors would discourage servicers from participating in the program because they would be exposed to significant litigation expenses); see also Brown, 753 F. Supp. 2d at 1255. While Wigod argues that subjecting servicers to state enforcement actions would encourage better performance under HAMP (Pl. Br. 22), she neglects to consider that HAMP is a largely voluntary, not mandatory, program designed to benefit the public at large by bringing greater stability to the housing market. Exposing servicers to varying state standards and class action penalties under this remedial program not to mention putting borrowers in modified loans they still cannot afford would serve to frustrate, not further EESAs purpose. Significantly, and contrary to Wigods argument, that some or all of Wigods state law claims are preempted does not mean that all state law claims against a servicer that supposedly touch upon the HAMP (Pl. Br. 11) would be barred. For example, tort causes of action based on fraudulent conduct could parallel federal HAMP requirements. See Medtronic, Inc. v. Lohr, 518 U.S. 470, 481-82 (1996).14 But, these are not

In Bosque v. Wells Fargo Bank, N.A., the court rejected the perceived argument that no HAMP related claims could proceed under state law. But that is not the argument
14

- 24 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

the types of claims present here. Wigod is not suing for damages under state law based on an established violation of federal law; by this lawsuit, she is seeking to use state law as a vehicle to establish that a violation of federal standards occurred in the first instance. Under the precedent of the Supreme Court and this Court, conflict preemption alone supports affirmation of the District Courts decision. See, e.g.,Buckman, 531 U.S. at 353. 2. Wigods state law claims are subject to field preemption by virtue of the Home Owners Loan Act (HOLA).

In her brief, relying in large part on Fletcher, Wigod argues that her claims are not subject to field preemption under HAMP. (Pl. Br. 20-21.) She also expressly states that the claims are not preempted by the National Bank Act. (Id. 22 n.13.) But this argument is misplaced. First, there is no dispute that HAMP does not occupy the field of mortgage servicing or loan modifications and thus field preemption under HAMP is not relevant to the analysis of whether Wigods claims should be preempted by federal law. Second, Fletcher misapplied this Courts decision in In re Ocwen Loan Servicing, LLC Mortgage Servicing Litig., 491 F.3d 638 (7th Cir. 2007). Ocwen stands, in part, for the proposition that, under the facts presented there, the Home Owners Loan Act, 12 U.S.C. 1461, et seq. (HOLA) did not preempt a basic breach of contract claim. Id. at

presented here (and, in fact, it was not the argument presented in Bosque). 762 F. Supp. 2d 342, 351 (D. Mass. 2011). Wells Fargo does not urge the Court to find that any state law claim that has any connection to HAMP is barred, but instead only those claims that seek relief based on conduct directly regulated by HAMP.

- 25 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

643-44. Wigods claims are not analogous because they implicate federal legislative purposes not at issue in Ocwen. However, as a matter of law, Wigods breach of implied contract, concealment, negligent hiring/supervision, and ICFA claims are preempted by HOLA, and implementing regulations promulgated by the Office of Thrift Supervision (OTS), 12 C.F.R. 560.1, et seq., because the claims would substantially interfere with Wells Fargos ability to service residential mortgage loans.15 HOLA empowered the OTS to regulate federal savings banks, including the preemption of conflicting state laws. Ocwen, 491 F.3d at 642. Indeed, HOLAs implementing regulations state that [the] OTS hereby occupies the entire field of lending regulation for federal savings associations. 12 C.F.R. 560.2(a) (emphasis added).16

While Wells Fargo is a national bank regulated by the National Bank Act rather than HOLA, Wigods loan was originated and initially serviced by Wachovia Bank FSB, a federal savings bank regulated by HOLA. (AC 29; App. 119 (TPP signed by Wachovia)). See Remo v. Wachovia Mortgage, 2011 WL 3448234, at *2 n.5 (N.D. Cal. Aug. 5, 2011) (applying HOLA preemption to loan originated by Wachovia in 2008). Wells Fargo subsequently acquired Wachovia, which is now a division of Wells Fargo. (AC 29.) Because Wachovia originated and initially serviced Wigods loan, including executing Wigods TPP, the HOLA preemption analysis applies to Wigods claims. See, e.g., Sato v. Wachovia Mortg., FSB, 2011 WL 2784567, at *5 (N.D. Cal. July 13, 2011). Regardless, the preemption analysis under either HOLA or the National Bank Act is the same. See Copeland-Turner v. Wells Fargo Bank, N.A., --- F. Supp. 2d ----, 2011 WL 2650853, at *9 n.6 (D. Or. July 6, 2011).
15

The preemptive scope of HOLA was modified with the passage of the DoddFrank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, 124 Stat. 13776 (2010). However, the Act does not apply to transactions predating the Acts July 21, 2010 effective date. See 12 U.S.C. 1553. Here, Wigods loan was originated in 2007 and the TPP was dated in 2009, and thus any changes to HOLA are inapplicable to the instant analysis.
16

- 26 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

OTS regulations specifically preempt state laws that purport to impose requirements regarding, among other activities, the [p]rocessing [and] servicing of mortgage loans as well as disclosures concerning loans. 12 C.F.R. 560.2(b)(9), (10). Accordingly, federal law preempts any actions that obstruct a federal savings banks ability to fully exercise its residential mortgage credit activities, including its right to service mortgage loans without state law interference. See Casey v. FDIC, 583 F.3d 586, 594-95 (8th Cir. 2009). The preemptive scope of HOLA includes state laws of general application which more than incidentally affect the lending operations of federal savings banks. See 12 C.F.R. 560.2(c). The application of Section 560.2(c) is to be interpreted narrowly and any doubts to be resolved in favor of preemption. Silvas v. E*Trade Mortgage Corp., 514 F.3d 1001, 1005 (9th Cir. 2008). Further, whether a claim brought under a state law of general application, such as Wigods ICFA claim, is preempted by HOLA turns on the conduct at issue, not the label given to the putative cause of action. Schilke v. Wachovia Mortgage, FSB, 758 F. Supp. 2d 549, 556-57 (N.D. Ill. 2010) (citing Ocwen, 491 F.3d at 646); see also Fletcher, 2011 WL 2648606, at *6-7 (ICFA claims preempted); Prince-Servance v. BankUnited, FSB, 2007 WL 3254432, at *5 (N.D. Ill. Nov. 1, 2007); Haehl v. Wash. Mut. Bank, F.A., 277 F. Supp. 2d 933, 942-43 (S.D. Ind. 2003). Here, Wigods state law breach of implied contract, concealment, negligent hiring/servicing, and ICFA claims, if enforced, would impermissibly impinge upon Wells Fargos ability to service mortgage loans including deciding (1) whether and under what circumstances to modify a loan; (2) how to staff its servicing operations; (3)

- 27 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

how to process loan modification applications; and (4) how to disclose implications of the loan modification process to borrowers. For example, Wigod alleges that Wells Fargo failed to properly perform servicing functions with respect to HAMP loan modifications (AC 73(a), 126) and failed to properly hire, train and supervise its servicing employees (id. 73(b), 93, 94, 126; see also id. 73(c), 110). Wigods emphasis on Wells Fargos purported one-call resolution policy is a perfect example of her attempt to regulate Wells Fargos servicing practices. (Pl. Br. 41-42.) Regardless of whether Wells Fargo actually had such a policy Wigods ICFA claim, if successful, would necessarily establish new standards for servicers customer relation policies, a result directly at odds with the presumption of preemption established by HOLA. Indeed, in Fletcher, upon which Wigod heavily relies, the district court held that claims based on alleged violations of HAMP guidelines cannot create an ICFA claim because such claims would be preempted by HOLA. See Fletcher, 2011 WL 2648606, at *6-7. Because the challenged activities go to the heart of Wells Fargo servicing functions, the District Courts dismissal of Wigods breach of the implied contract, concealment, negligent hiring/supervision, and ICFA claims should be affirmed on this alternative ground. See Remo, 2011 WL 3448234, at *5 (dismissing as preempted state law claims based on refusal to modify loan); Copeland-Turner, 2011 WL 2650853, at *8-9 (dismissing as preempted state law claims predicated on representations during modification process); Poco v. Wachovia Mortgage Corp., 2011 WL 2633298, at *5 (N.D. Cal. July 5, 2011) (same); Parmer v. Wachovia, 2011 WL 1807218, at *1 (N.D. Cal. Apr. 22, 2011) (claims based on misleading representations concerning a loan modification preempted); Zarif

- 28 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

v. Wells Fargo Bank, N.A., 2011 WL 1085660, at *3 (S.D. Cal. Mar. 23, 2011) (HOLA preempts state law claims predicated on challenges to processing of loan modification applications); Snyder v. Wachovia Mortgage, 2010 WL 2736945, at *7-9 (E.D. Cal. July 12, 2010); Biggins v. Wells Fargo & Co., 266 F.R.D. 399, 417 (N.D. Cal. 2009). C. Wigod Failed To Allege A Breach Of Contract With Respect To Her TPP.

Wigod asserts that her TPP was a valid contract that required Wells Fargo to offer her a permanent modification once Wigod made her trial payments and submitted necessary documentation to verify her eligibility. (AC 61.) In addition to the reasons set forth by the District Court, this Court should affirm the dismissal of Wigods breach of contract claim, because Wigod has not alleged facts that would establish the existence of a valid contractnamely offer and acceptance, consideration, definite and certain terms, performance of all required conditions, and damages. See Assn Benefit Servs., Inc. v. Caremark RX, Inc., 493 F.3d 841, 849 (7th Cir. 2007). Absent a contract, Wigod cannot plead a breach. As an initial matter, analyzing the TPP as a potential contract is improper. As stated above, under SD 09-01, Wells Fargo was obligated to consider Wigods eligibility for HAMP. (App. 1.) Wigods suggestion that she did not receive the benefit of her bargain in the form of a permanent modification rests on the same faulty assumption that Wigod asserts throughout briefingthat she was eligible for and entitled to a permanent HAMP modification. (Pl. Br. 38; see also id. 33; AC 37, 32, 34-38, 43, 66, 79, 86-89.) But there was no bargain between Wigod and Wells Fargo, and whether

- 29 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

Wigod obtained a permanent modification was not subject to negotiation, but rather dictated by federal guidelines. 1. The TPP is not an enforceable offer.

The test for an offer is whether it induces a reasonable belief in the recipient that she can, by accepting, bind the sender. See Cobb-Alvarez v. Union Pac. Corp., 962 F. Supp. 1049, 1053-54 (N.D. Ill. 1997). A partys suggestion is not an offer if it contains suitable language conditioning the formation of a contract on some further step ... such as approval by corporate headquarters. Cobb-Alvarez, 962 F. Supp. at 1054; see also A/S Apothekernes Laboratorium for Specialpraeparater v. I.M.C. Chem. Group, Inc., 873 F.2d 155, 157 (7th Cir. 1989). Here, Wigods TPP cannot be reasonably viewed as an offer, the acceptance of which could bind Wells Fargo to permanently modify Wigods loan. A TPP has never been a guarantee of a loan modification.17 The language of the TPP confirms that permanent modification of Wigods loan was conditioned on the receipt and review by Wells Fargo of additional documentation and the satisfaction of all necessary conditions to render Wigod eligible for a permanent modification. When signing the TPP, Wigod acknowledged that she understood that the [TPP] is not a modification of the Loan Documents and that the Loan Documents will not be modified unless and until (i) I meet all of the conditions required for modification, (ii) I receive a fully executed copy

Indeed, SD 10-01 (requiring that all TPPs are based on verified financial data) would not have been issued if Wigods theory that a trial plan guarantees a permanent HAMP modification if three timely payments were made was correct. (See Dckt. 30-5.)
17

- 30 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

of a Modification Agreement, and (iii) the Modification Effective Date has passed. (App. 118, 2.G; see also AC 61 (admitting that Wigods eligibility was not determined when she signed and returned the TPP).) Indeed, the TPP, by its express terms, terminated if Wells Fargo had not delivered a fully executed TPP and Modification Agreement by November 1, 2009. (App. 118, 2.F). Yet nowhere does Wigod allege because she cannot that she received a modification agreement from Wells Fargo. Numerous federal courts have dismissed TPP-based contract claims on this ground alone. See, e.g., Lonberg v. Freddie Mac, 2011 WL 838943, at *7 (D. Or. Mar. 4, 2011) (citing collection of cases); Lucia/Corvello, 2011 WL 3134422, at *7; Grill v. BAC Home Loans Servicing LP, 2011 WL 127891, at *4 (E.D. Cal. Jan. 14, 2011); Vida v. OneWest Bank, F.S.B., 2010 WL 5148473, at *6 (D. Or. Dec. 13, 2010) (The [TPP] is explicitly not an enforceable offer for loan modification.); Lund v. CitiMortgage Inc., 2011 WL 1873690, at *2 (D. Utah May 17, 2011) (the [TPP] makes clear that the modification is subject to qualification .); Shurtliff v. Wells Fargo Bank, N.A., 2010 WL 4609307, at *4 (D. Utah Nov. 5, 2010) (same); Stolba, 2011 WL 3444078, at *3; Rackley, 2011 WL 2971357, at *4. Bosque v. Wells Fargo Bank, N.A., 762 F. Supp. 2d 342 (D. Mass. 2011), does not support a finding that Wigods TPP is an enforceable offer to permanently modify her loan. Bosque noted that the plaintiffs asserted that they were merely entitled to a decision by Wells Fargo as to whether they will receive a permanent modification by the modification effective date specified in section 2 of the TPP. Id. at 349. The Bosque court held only that the TPP contains all essential and material terms necessary to

- 31 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

govern the trial period repayments and the parties related obligations. Id. at 352 (emphasis added). Here, however, the central issue of Wigods claim is not about the timing of Wells Fargos decision, but rather the decision itself to deny her application for a permanent modification. (AC 69-70, 83.) As discussed above, there is no legal support for Wigods claim. 2. Wigod has not alleged facts reflecting consideration.

Wigod has not alleged and cannot allege that she provided valid consideration for a permanent modification. The essential element of consideration is a bargained-for exchange of promises or performances . Ross v. May Co., 880 N.E.2d 210, 215 (Ill. App. Ct. 2007). Here, there was no bargained-for exchange of promises. Wigod was already obligated to make monthly payments under the original terms of her mortgage. (Mortgage, Dckt. 30-1.) Under Wigods TPP, Wells Fargo agreed to accept reduced monthly payments on Wigods representations of financial hardship. (App. 117-119.) The monthly payment amounts under Wigods TPP were substantially less than the monthly amount owed under Wigods original secured obligation to Wells Fargo. (Id.) When signing the TPP, Wigod also agreed that: all terms and provisions of the Loan Documents remain in full force and effect; nothing in this Plan shall be understood or construed to be a satisfaction or release in whole or in part of the obligations contained in the Loan Documents. The Lender and I will be bound by, and will comply with, all of the terms and provisions of the Loan Documents. (App. 119, 4.D.) The submission of partial payment of an amount undisputedly due and secured by Wigods property cannot as a matter of law be considered bargained-for - 32 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

consideration or the result of a reciprocal agreement. As the Illinois Appellate Court stated in DiLorenzo v. Valve & Primer Corp., where a party does what it is already legally obligated to do, there is not consideration. 807 N.E.2d 673, 679 (Ill. App. Ct. 2004); see also Contempo Design, Inc. v. Chi. & Ne. Ill. Dist. Council of Carpenters, 226 F.3d 535, 550 (7th Cir. 2000) (en banc); Salgado v. Americas Servicing Co., 2011 WL 3903072, at *2 (D. Ariz. Sept. 6, 2011) (TPP payments fail to satisfy consideration requirement); Rackley, 2011 WL 2971357, at *3 (TPP payments and provision of financial information do not constitute consideration for permanent HAMP modification). Accordingly, where as here a party has a pre-existing duty to perform under the terms of an original contract, a modification of that contract with no additional consideration does not result in the formation of a new, enforceable contract.18 Whatever actions Wigod undertook or promises she made in connection with the TPP, such as providing income information and documentation, were nothing more than conditions that Treasury required she satisfy so that she could obtain the benefits of HAMP. As discussed above, HAMP is a taxpayer-funded program and part of a plan to stabilize the economy. Wigod stood to obtain a financial incentive if she qualified for benefits under the program. Any actions undertaken by Wigod in compliance with HAMP constituted conditions, not bargained-for consideration paid for the benefit of Wells Fargo. See 3 SAMUEL WILLISTON, A TREATISE ON THE LAW OF CONTRACTS (Williston Wigods promise to keep her information current and to make the temporary payments on time, (AC 63), cannot serve as valid consideration for a permanent modification. See Mehta v. Wells Fargo Bank, N.A., 737 F. Supp. 2d 1185, 1197 (S.D. Cal. 2010).
18

- 33 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

on Contracts) 7:18 (4th ed. 2008); see also Grill, 2011 WL 127891, at *4; Barinaga v. JP Morgan Chase & Co., 749 F. Supp. 2d 1164, 1174-75 (D. Or. 2010); Mehta, 737 F. Supp. 2d at 1197-98; Mizrahi v. Wells Fargo Home Mortgage, 2010 WL 2521742, at *3 (D. Nev. June 16, 2010). 3. The TPP does not contain definite and certain terms.

There are no allegations in the Amended Complaint that would show that the parties ever reached a meeting of the minds with respect to any of the material terms of a permanent modification. A valid contract must contain definite and certain terms to ensure that the parties in fact have reached an agreement and to provide courts with a basis for enforcing the obligations that the parties sought to impose upon one another. Assn Benefit Servs. Inc., 493 F.3d at 850; see also Bus. Sys. Engg, Inc. v. Intl Bus. Mach. Corp., 547 F.3d 882, 888 (7th Cir. 2008) (offer must be definite as to its material terms). Among the essential terms in a contract to lend money are the applicable rate of interest, duration of the loan, and mode of repayment. McErlean v. Union Natl Bank of Chi., 414 N.E.2d 128, 132 (Ill. App. Ct. 1980); see also Nadan, 2011 WL 3584213, at *6-7 (dismissing breach of contract claim because TPP does not provide essential terms); In re Salvador, --- B.R. ----, 2011 WL 1833188, at *6-7 (Bankr. M.D. Ga. May 12, 2011) (same). Wigods TPP does not contain any of the definite and certain terms that reflect an agreement by the parties for a permanent loan modification, let alone one that could be enforced. (App. 117-119.) Indeed, the applicable form permanent modification agreement provided to servicers by Treasury contains numerous blanks to be filled in, including the yearly interest rate, the interest rate change date, the monthly principal

- 34 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

and interest payment, estimated monthly escrow payment amount, total monthly payment, payment start date, number of monthly payments per interest rate period, and principal balance. (Id. 123.) Yet, Wigod has not alleged nor could she that any of this information is set forth in her TPP, even though many if not all of such terms may be modified. (Id. 8-10.). This is so because the TPP is not a permanent modification nor an enforceable promise to provide a permanent modification. SD 09-01 distinguishes between the TPP and the final form Agreement: Servicers must use a two-step process for HAMP modifications. Step one involves providing a Trial Period Plan outlining the terms of the trial period, and step two involves providing the borrower with an Agreement that outlines the terms of the final modification. (Id. 14.) If the trial modification form contained all of the information necessary for a legal and binding permanent modification, the step two final Agreement would not be necessary, but it is. (Id. 15 ([i]n step two, servicers must calculate the terms of the modification using verified income, taking into consideration amounts to be capitalized during the trial period).) Because the TPP is silent with respect to what the parties agreed to as to any permanent modification, it cannot be enforced in a court of law.19 See McErlean, 414 N.E.2d at 132; Anand v. Marple, 522 N.E.2d 281, 281 (Ill. App. Ct. 1988) (affirming dismissal where parties made only an agreement to agree and there was no meeting of the minds).

Because Wigod has failed to allege the existence of a contract, the dismissal of her implied covenant claim (AC 71-73) should also be affirmed. Pommier v. People Bank Marycrest, 967 F.2d 1115, 1120-21 (7th Cir. 1992).
19

- 35 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

D.

The District Court Properly Dismissed Wigods Promissory Estoppel Claim.

A plaintiff may invoke the doctrine of promissory estoppel only where, among other things, there is a promise unambiguous in terms and there is reasonable and justifiable reliance thereon by the promisee. Geva v. Leo Burnett Co., 931 F.2d 1220, 1223 (7th Cir. 1991). As discussed above, no promise existed that was unambiguous in its terms. See supra, section VII.C.3; In re Salvador, 2011 WL 1833188, at *6-7. The TPP governed the trial period only and Wells Fargo could not have expected Wigod to rely on it as a permanent modification of her loan, particularly where the TPP states that the original loan documents remain in full force and effect. (App. 119 (all terms and provisions of the Loan Documents remain in full force and effect; nothing in this Plan shall be understood or construed to be a satisfaction or release in whole or in part of the obligations contained in the Loan Documents).) Moreover, as stated above, HAMP guidelines clearly contemplated that a TPP was not a guarantee that a permanent loan modification would be offered. Wigod thus could not have reasonably relied upon the TPP to promise a permanent modification. See Costigan v. CitiMortgage, Inc., 2011 WL 3370397, at *7 (S.D.N.Y. Aug. 2, 2011) ([T]he TPP agreement unequivocally states that it does not constitute a permanent modification of [plaintiffs] loan. (emphasis added)); Lucia/Corvello, 2011 WL 3134422, at *8 (at the time Plaintiffs were offered Trial Period modifications, there was no promise that Plaintiffs would be found eligible for permanent loan modification on which Plaintiffs could reasonably rely).

- 36 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

E.

The District Court Correctly Held That Wigod Failed To Allege A Valid ICFA Claim.

To adequately plead a violation of ICFA, Wigod is required to allege: (1) a deceptive or unfair act or practice by Wells Fargo; (2) Wells Fargos intent that Wigod rely on the deception or unfair practice; (3) that the deceptive or unfair practice occurred in the course of conduct involving trade or commerce; (4) actual damage to Wigod; and (5) such damages were proximately caused by the deception. See Siegel v. Shell Oil Co., 612 F.3d 932, 934-35 (7th Cir. 2010); see also 815 ILL. COMP. STAT. 505/10a. Wigod failed to do so, and the District Courts decision dismissing Wigods ICFA claim should be affirmed. 1. Wigod offers no well-pleaded factual allegations that Wells Fargo intended Wigod to rely on its alleged deception.

Wigod argues that the District Court applied the wrong standard by requiring her to allege that Wells Fargo intended to deceive her, rather than that Wells Fargo intended that Wigod rely on its alleged deceptive conduct. (Pl. Br. 34-37.) Regardless of which standard applies, Wigod has not identified any allegations that Wells Fargo intended Wigod to rely on any alleged deception. Indeed, Wigod cannot do so as the Amended Complaint is devoid of any such allegations. (AC 123-127.) See Suburban 1, Inc. v. GHS Mortgage, LLC, 833 N.E.2d 18, 22 (Ill. App. Ct. 2005).20

Contrary to Wigods argument, (Pl. Br. 35 n.21), reliance remains an element of a private cause of action [under the ICFA]. See Duran v. Leslie Oldsmobile, Inc., 594 N.E.2d 1355, 1362 (Ill. App. Ct. 1992).
20

- 37 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

2.

Wigod failed to allege that she suffered actual damages.

The Court also should reject Wigods attempts to argue that she suffered actual damages under ICFA. The actual damage element of a private ICFA action requires that Wigod suffered actual pecuniary loss. See Kim v. Carters Inc., 598 F.3d 362, 365 (7th Cir. 2010) (actual damage element requires that the plaintiff suffer actual pecuniary loss); Mulligan v. QVC, Inc., 888 N.E.2d 1190, 1196-97 (Ill. App. Ct. 2008). ICFA provides remedies for purely economic injuries, and the failure to allege specific actual damages in the form of specific economic injuries precludes an ICFA claim. Morris v. Harvey Cycle & Camper, Inc., 911 N.E.2d 1049, 1053 (Ill. App. Ct. 2009). Actual damages must be calculable and measured by the plaintiffs loss. Id. (citation omitted). With regard to claims for consumer fraud, Illinois courts have adopted the benefit-of-the-bargain rule. Mulligan, 888 N.E.2d at 1196; see also Frye v. LOreal USA, Inc., 583 F. Supp. 2d 954, 957 (N.D. Ill. 2008). The rule is based on the theory that plaintiff is entitled to be placed in the same financial position she would have been absent the misrepresentation. Frye, 583 F. Supp. 2d at 957 (citing Price v. Philip Morris, Inc., 848 N.E.2d 1, 5-6 (Ill. 2005)). Wigod has not pled a viable claim for actual damages. Wigods suggestion that the District Courts dismissal of the ICFA claim was based on the presumption that Wigods reduced payments under the TPP would leave her with more financial resources, rather than fewer, is erroneous. (See Pl. Br. 37.) Wigod was obligated to make monthly principal and interest payments under the terms of her original loan documents, an amount that exceeded the reduced TPP payments. (TPP, App. 117-119.) In light of Wigods pre-existing indebtedness to Wells Fargo, the District

- 38 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

Court concluded, not presumed, that the TPP left Wigod with more resources than she would have been without a TPP and thus, as a matter of law, failed to allege pecuniary loss caused by Wells Fargos alleged conduct.21 Wigod also does not allege actual pecuniary loss under the benefit of the bargain test. Like the plaintiff in Frye, Wigod alleges that she would not have entered into a TPP absent Wells Fargos misrepresentation. (AC 105.) Wigod did not, however, allege how she would have spent the money that she otherwise paid under her TPP. While Wigod complains that her money could have been put towards other potential remedies that she might otherwise have pursued to save her home, (Id. 75, 125), she does not allege what those might have been. Nor does Wigod allege that the value of her home was diminished during the trial plan period. Accordingly, Wigod has failed to adequately allege that her TPP had any economic consequences. Last, Wigods assertions that missed opportunities constitute actionable injuries fails for a number of reasons. (See Pl. Br. 38, 39; AC 75, 125.) Under Illinois law, [t]heoretical harm and damages predicated on mere speculation, hypothesis, conjecture or whim are insufficient. Price v. Philip Morris, Inc., 848 N.E.2d 1, 5 (Ill. 2005); Cooney v. Chi. Pub. Schs., 943 N.E.2d 23, 31 (Ill. App. Ct. 2010); Petty v. Chrysler Corp., 799 N.E.2d 432, 439 (Ill. App. Ct. 2003). Rather, Wigod must have been harmed in a concrete, ascertainable way. Price, 848 N.E.2d at 5. Wigods allegations regarding

Wigod also stopped making her mortgage payments in May 2010, but, upon information and belief, continues to live in her condominium while her taxes are paid by Wells Fargo.
21

- 39 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

missed opportunities are purely theoretical and allege no ascertainable damages. Nothing prevented Wigod from filing for bankruptcy or attempting to sell her home. (SD 09-01, App. 2 (borrower actively involved in a bankruptcy proceeding is eligible for the HAMP at the servicers discretion); TPP, App. 117-119). Nor does Wigod provide any factual basis for the notion that she could have sold her home at all, let alone on undefined favorable terms. Wigods allegations cannot support her claim for relief. See Morris, 911 N.E.2d at 1053; Price, 848 N.E.2d at 5; Iqbal, 129 S. Ct. at 1949-50.22 3. The District Court Properly Held That Wigods Claim That Wells Fargo Engaged In Unfair Conduct Did Not State A Claim Under ICFA.

Wigod also contends that the District Court erred by dismissing her unfairness claim under ICFA. But Wigod alleged no facts specific to her loan to support such a claim. Wigod offered only a litany of complaints against Wells Fargo that Wigod labeled unfair, immoral and unscrupulous practices. (Pl. Br. 41-42; see also AC 126.) The District Courts silence on this argument does not indicate a failure to consider the claim, but more likely a conclusion that the claim fails and does not warrant discussion. See Crawford Supply Group, Inc. v. Bank of Am., N.A., 2011 WL 3793913, at *2-3 (N.D. Ill. Aug. 25, 2011) (court not required to address every argument in decision). The conduct alleged in sub-paragraphs (a) through (i) of paragraph 126 of the Amended Complaint, including Wells Fargos alleged one call resolution policy, Wigod also did not allege a basis for a finding of proximate causation. She does not allege that Wells Fargo prevented her from seeking bankruptcy relief, from selling her home, or from pursuing any alternative and more preferable solutions to address her debt obligations. See Oliveira v. Amoco Oil Co., 776 N.E.2d 151, 155 (Ill. 2002) (affirming dismissal because no proximate causation).
22

- 40 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

consists of a general complaint that provides no connection to Wigods loan modification application. Nothing in paragraph 126 sets forth well-pleaded factual allegations that taken as true would establish conduct that violated ICFA as to Wigods loan. [N]amed plaintiffs who [seeks to] represent a class must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent. Schultz v. Prudential Ins. Co. of Am., 678 F. Supp. 2d 771, 782 (N.D. Ill. 2010). None of Wigods general allegations explains how Wells Fargos conduct vis--vis Wigod violated ICFA or differed from Wigods alleged breach of contract claim. See Duffy v. Ticketreserve, Inc., 722 F. Supp. 2d 977, 992-93 (N.D. Ill. 2010). Accordingly, the District Court properly dismissed Wigods ICFA claim.23 F. The District Court Properly Dismissed Wigods Misrepresentation Claims Because She Failed To Plead That She Justifiably Relied Upon Statements In The TPP.

Wigod alleges that Wells Fargo misrepresented that it would permanently modify her loan if she made her TPP payments and submitted the supporting documentation required by the TPP. (AC 7, 27, 104, 120.) The District Court, however, properly held that, as a matter of law, Wigod could not have reasonably relied on a provision of the TPP that was inherently contradictory to another. (See Order 13-14.) Wigod argues that the District Courts analysis was flawed because it assumed that Wigod relied on

The district courts decision in Boyd does not apply here, because, unlike in Boyd, Wigod has not alleged any unfair conduct under ICFA that applies to her. In Boyd, the plaintiff alleged that the servicer failed to evaluate his HAMP eligibility and then foreclosed on his property. 2011 WL 1374986, *2. No such allegations are present here.
23

- 41 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

the first paragraph of the TPP, while she allegedly relied on Section 3 of the TPP. (Pl. Br. 31-32.) The Court should reject Wigods argument. The content of the two paragraphs in question is materially the same, making Wigods alleged distinction irrelevant. (Compare TPP, App. 117 with App. 119, 3.) The first paragraph of the TPP simply uses the title of Section 2, i.e., The Loan Trial Period (App. 118), rather than Section 2. Wigod does nothing more than attempt to create a false distinction between the two paragraphs. Regardless, as the District Court pointed out, the content on which Wigod purportedly relied is undermined by Section 2.G, which provides that Wigods loan would not be modified unless, among other things, she met all of the conditions required for modification. (Order 13-14 (quoting TPP 2.G) (emphasis in district court opinion).) Wigod appears to argue that because Section 3 of the TPP references the requirements in Section 2, the requirement in Section 2.G that Wigod meet all the conditions required for modification is somehow immaterial to the misrepresentation analysis. (Pl. Br. 32.) Wigod, however, provides no factual or legal basis for this suggestion. Indeed, several courts have expressly held that, as a matter of law, borrowers could not have reasonably relied on the language of the TPP to promise a permanent modification. See, e.g., Stolba, 2011 WL 3444078, at *5; Lucia/Corvello, 2011 WL 3134422, at *8-9; Lund, 2011 WL 1873690, at *3. Wigod is trying to isolate different potions of the TPP to support her misrepresentation claims, but in doing so, she fails to look at the TPP as a whole. Further, in determining justifiable reliance, the Court must consider what Wigod knew and what she could have discovered by the exercise of ordinary prudence. See

- 42 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

Teamsters Local 282 Pension Trust Fund v. Angelos, 839 F.2d 366, 370 (7th Cir. 1988) (citing Schmidt v. Landfield, 169 N.E.2d 229, 231-32 (Ill. 1960)); see also Adler v. William Blair & Co., 648 N.E.2d 226, 232 (Ill. App. Ct. 1995) ([a] person may not enter into a transaction with his eyes closed to available information and then charge that he has been deceived by another). Illinois law imposes a duty to investigate when the circumstances reasonably require, as a matter of prudence, that an investigation be undertaken. See Teamsters, 839 F.2d at 371 (citing Luciani v. Bestor, 436 N.E.2d 251, 256 (Ill. App. Ct. 1982)); see also Schmidt, 169 N.E.2d at 231-32. Accordingly, a plaintiffs reliance is not justifiable where she had equal knowledge or access to knowledge, or where peculiar circumstances did not induce plaintiff to rely solely on the representation. See Runnemede Owners, Inc. v. Crest Mortgage Corp., 861 F.2d 1053, 1058 (7th Cir. 1988); Schmidt, 169 N.E.2d at 232. Like the plaintiffs in Adler, Wigods TPP clearly informed Wigod that her loan would not be modified unless and until [she] met all conditions required for a modification (App. 118.) In addition to inquiring with Wells Fargo regarding the conditions for receiving a permanent HAMP modification, Wigod could have called the HOPE Hotline for free assistance from a team of HUD-approved housing counselors. See supra, Section VII.A. Moreover, plaintiff could have read the publicly-available Treasury and Fannie Mae guidelines and directives that explain the eligibility, underwriting, and documentation required for each HAMP application. (App. 2-10.) Wigod, however, does not allege that she undertook any such investigation. Instead, she closed her eyes to all other provisions of the TPP, as well as the vast amount of

- 43 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

information regarding HAMP requirements that was publicly available at the time. See Adler, 648 N.E2d at 232. Absent any alleged inquiry Wigods alleged reliance was not justifiable, as a matter of law. Wigods naked allegations that she met the financial threshold for permanent modification prior to entering into the TPP do not render her alleged reliance on the TPP justifiable. Wigods repeated argument with no support from well-pled factual allegations that Wells Fargo had verified her qualification for a permanent modification prior to providing her with a TPP is entirely speculative and does not support a finding of justifiable reliance on the TPP.24 See Iqbal, 129 S. Ct. at 1949-50. Absent justifiable reliance on any alleged misrepresentation by Wells Fargo, the District Court properly dismissed Wigods misrepresentation claims. See Cozzi Iron & Metal, Inc. v. U.S. Office Equip., Inc., 250 F.3d 570, 574 (7th Cir. 2001).25 G. The Moorman Or Economic Loss Doctrine Bars Wigods Negligence-Based Claims; Wigod Failed To Sufficiently Allege The Elements Of Each Such Claim. 1. Dismissal of Wigods negligence-based claims should be affirmed based on the economic loss doctrine.

Under Illinois law, the Moorman, or economic loss, doctrine bars a plaintiff from recovering for purely economic losses under a tort theory of negligence. Moorman Mfg. Co. v. Natl Tank Co., 435 N.E.2d 443, 453 (Ill. 1982). To recover in tort under the Moreover, the Amended Complaint does not allege that Wigods loan received a positive NPV result.
24

Alternate grounds for affirming the dismissal of plaintiffs misrepresentation claims are discussed in detail in Sections VII.G.1, and VII.G.3. See Marcus & Millichap, 639 F.3d at 312 (Court may affirm dismissal on any basis that appears in the record, even if it was not the district court's ground for dismissing the suit).
25

- 44 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

Moorman doctrine, a party must show harm above and beyond a partys contractual or commercial expectations. Am. United Logistics, Inc. v. Catellus Dev. Corp., 319 F.3d 921, 926 (7th Cir. 2003).26 Accordingly, where two parties are engaged in a commercial relationship, one party cannot pursue negligence-based claims for economic damages only. Freedom Mortgage Corp. v. Burnham Mortgage Corp., 720 F. Supp. 2d 978, 1001-02 (N.D. Ill. 2010). Here, Wigods negligent misrepresentation and negligent hiring/supervision claims arise from her commercial relationship with Wells Fargo as her loan servicer, and Wigods negligence-based claims seek only economic damages. (AC 97, 102, 122.) Wigod does not assert that Wells Fargos negligence caused her any physical injury or property damage. Thus, Wigods claims fall squarely within the Moorman doctrine, and dismissal of her negligence-based claims should be affirmed. See Catalan v. GMAC Mortgage Corp., 629 F.3d 676, 693 (7th Cir. 2011); First Place Bank v. Skyline Funding, Inc., 2011 WL 3273071, at *6 (N.D. Ill. July 27, 2011) (Moorman doctrine barred negligent misrepresentation claim against mortgage originator); Freedom Mortgage Corp., 720 F. Supp. 2d at 1001-02 (dismissing negligent supervision and hiring claims); Fox Assoc., Inc. v. Robert Half International, Inc., 777 N.E.2d 603, 610 (Ill. App. Ct. 2002).27

A number of exceptions apply to the doctrine, but none is applicable to Wigods claims. See Catalan v. GMAC Mortgage Corp., 629 F.3d 676, 693 (7th Cir. 2011) (listing exceptions).
26

Wigods claims do not fall into a narrow exception to the Moorman doctrine that applies where the plaintiffs damages were proximately caused by a negligent misrepresentation by a defendant in the business of supplying information for the guidance of others in their business transactions. Catalan, 629 F.3d at 693. Wigod fails
27

- 45 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

2.

Dismissal of Wigods negligent hiring claim should be affirmed.

Beyond the Moorman doctrine, to state a claim for negligent hiring, a plaintiff must allege a particular unfitness and that such unfitness rendered the plaintiffs injury foreseeable to a person of ordinary prudence in the employers position. Van Horne v. Muller, 705 N.E.2d 898, 905-06 (Ill. 1998). Moreover, a plaintiff must allege specific facts, rather than make conclusory allegations, that a defendant knew or should have known about a potential employees particular unfitness. See Mitchell v. Norman James Constr. Co., 684 N.E.2d 872, 889 (Ill. App. Ct. 1997); see also Van Horne, 705 N.E.2d at 90607 (affirming dismissal of negligent hiring claim where plaintiff failed to plead specific facts regarding particular unfitness of employee in question). Wigod has offered no specific allegations explaining the unfitness of any Wells Fargo employees at the time of their hiring, and she fails to tie any such allegations to her loan in particular. Instead, Wigod merely offers conclusory allegations that Well Fargos hires lacked suitable training, education, experience and skills and were illsuited to handle HAMP loan modifications. (AC 93, 97.) Wigod offers no allegations to show how any Wells Fargo employees were ill-suited for such jobs or how Wells Fargo knew or should have known about their unfitness for HAMP-related positions. Dismissal of Wigods negligent hiring claim should be affirmed. See Van Horne, 705 N.E.2d at 906.

to allege that Wells Fargo is in the business of supplying information for Wigods guidance in her business dealings.

- 46 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

3.

The District Courts dismissal of Wigods negligent or fraudulent misrepresentation/concealment should be affirmed. (a) Wigod failed to allege with specificity facts showing that Wells Fargo had a scheme to defraud Wigod.

To survive a motion to dismiss, Wigod must be able to point to specific, objective manifestations of [Wells Fargos] fraudulent intent-a scheme or device. Bower v. Jones, 978 F.2d 1004, 1012 (7th Cir. 1992) (citing Hollymatic Corp. v. Holly Sys., Inc., 620 F. Supp. 1366, 1369 (N.D. Ill. 1985)). Wigod, however, failed to allege any specific facts showing that Wells Fargos future promise to permanently modify Wigods loan was part of a scheme to defraud Wigod. Wigod merely alleges that Wells Fargo had absolutely no intention to modify Plaintiffs mortgage. See Bower, 978 F.2d at 1012; Chatham Surgicore, Ltd. v. Health Care Serv. Corp., 826 N.E.2d 970, 977-79 (Ill. App. Ct. 2005). Wigods allegation is belied by the tens of thousands of mortgage loans Wells Fargo has modified, its voluntary participation in HAMP by executing the SPA, and the incentives that it receives as a result of participation in the program. (b) Wigod failed to allege that she was damaged by Wells Fargos conduct.

Nothing alleged by Wigod satisfies the damages element of her claim. She alleges that she did not receive a permanent loan modification, that she made trial plan payments that could have been used for other avenues of relief, that she lost time ... and the opportunity to pursue other avenues for saving her home and credit, that her credit score was negatively impacted, and that her available credit was cancelled or reduced. (AC 108, 113, 118.) However, Wigod was indebted to Wells Fargo under the terms of her original note and was obligated to make monthly principal and interest - 47 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

payments that exceeded the reduced trial payments. Wells Fargos decision to allow Wigod to temporarily make reduced loan payments on her mortgage presumably to provide her with time to try and improve their financial circumstances was intended to be a benefit and could not have damaged Wigod in light of her pre-existing indebtedness. See Adams v. U.S. Bank, 2010 WL 2670702, at *4 (E.D. Mich. July 1, 2010). Wigods other allegations, such as lost time and opportunities, as well as damage to her credit, are simply too speculative and attenuated to sufficiently plead damages proximately caused by Wells Fargos conduct. This is particularly true to the extent that any of these damages allegedly flow from Wigods allegations that Wells Fargo caused her to default on her loan. (AC 109-13.) At the time she executed her TPP, Wigod admitted that she was already on the verge of default (App. 117, 1.A) and thus Wigods conclusory allegations that Wells Fargo was to blame for the default are insufficient to properly plead damages. (c) Wigod failed to allege that Wells Fargo owed her a duty.

To recover on a fraudulent concealment or negligent misrepresentation claim, Wigod must adequately allege that Wells Fargo had a duty to communicate accurate information. Connick v. Suzuki Motor Co., 675 N.E.2d 584, 593 (Ill. 1996); Neptuno Treuhand-Und Verwaltungsgesellschaft Mbh v. Arbor, 692 N.E.2d 812, 818 (Ill. App. Ct. 1998). However, [t]here is no duty to speak absent a fiduciary or other legal relationship between the parties, and the burden of showing such a relationship exists lies with the party seeking relief. Neptuno, 692 N.E.2d at 817 (citing Magna Bank of Madison County v. Jameson, 604 N.E.2d 541, 544-45 (Ill. App. Ct. 1992)). As a matter of

- 48 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

law, a mortgagor does not owe a mortgagee a duty of care. Graham v. Midland Mortgage Co., 406 F. Supp. 2d 948, 953 (N.D. Ill. 2005) (quoting Teachers Ins. & Annuity Assn of Am. v. LaSalle Natl Bank, 691 N.E.2d 881, 888 (Ill. App. Ct. 1998)); see also Stolba, 2011 WL 3444078, at *5 (no duty of care owed by Wells Fargo as servicer); Magna Bank, 604 N.E.2d at 544. While a duty to disclose material facts may arise where a plaintiff places trust and confidence in a defendant so as to place the defendant in a position of influence and superiority over the plaintiff, the plaintiff must plead such facts in the complaint. See Graham, 406 F. Supp. 2d at 953; Connick, 675 N.E.2d at 593. Wigods only allegation regarding Wells Fargos duty to communicate accurate information is entirely conclusory, (AC 121), and must be disregarded as it does not allege that Wigod placed such great trust and confidence in Wells Fargo so as to warrant a duty of care. See Graham, 406 F. Supp. 2d at 953. Accordingly, dismissal of Wigods fraudulent concealment and negligent misrepresentation claims should be affirmed. See id.; Olson v. Jenkens & Gilchrist, 461 F. Supp. 2d 710, 719 (N.D. Ill. 2006). VIII. CONCLUSION For all the foregoing reasons, Defendant-Appellee Wells Fargo Bank, N.A. respectfully requests that the judgment of the District Court be affirmed in full.

- 49 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B)

because this brief contains 13,923 words, excluding the parts of the brief exempted by Fed. R. App. P. 21(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)

and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Book Antiqua 12-point font. /s/ Irene C. Freidel Irene C. Freidel Attorney for Defendant-Appellee Wells Fargo Bank, N.A. Dated: September 14, 2011

- 50 -

Case: 11-1423

Document: 21 22

Filed: 09/14/2011

Pages: 63

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on September 14, 2011, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to all counsel or parties of record on the attached service list. /s/ Irene C. Freidel Irene C. Freidel

SERVICE LIST Case No. 1:10-cv-02348 Jay Edelson jedelson@edelson.com Steven Lezell Woodrow swoodrow@edelson.com Rafey S. Balabanian rbalabanian@edelson.com Irina Slavina islavina@edelson.com Edelson McGuire, LLC 350 North LaSalle Street, Suite 1300 Chicago, IL 60654 Counsel for Plaintiff-Appellee Lori Wigod

- 51 -