In reading Wigod you will be able to see how the Court came to decide for Wigon on some issues, and against her on others. This will help you in framing your issues in the best possible way to win.
For myself, I’ve hired a lawyer because I can’t keep the intricacies straight, due to my brain injury. Happily, he’s experienced with TPP cases.
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Associates, Ltd., 640 N.E.2d 9, 12-13 (Ill. App. 1994). But this “scheme exception” is broad — so broad it “tends to engulf and devour” the rule. Stamatakis Industries, Inc. v. King, 520 N.E.2d 770, 772 (Ill. App. 1987). To invoke the scheme exception, the plaintiff must allege and then prove that, at the time the promise was made, the defendant did not intend to fulfill it. Bower v. Jones, 978 F.2d 1004, 1011 (7th Cir. 1992) (“In order to survive the pleading stage, a claimant must be able to point to specific, objective manifestations of fraudulent intent — a scheme or device. If he cannot, it is in effect presumed that he cannot prove facts at trial entitling him to relief.”), quoting Hollymatic Corp. v. Holly Systems, Inc., 620 F. Supp. 1366, 1369 (N.D. Ill. 1985). Such evidence would include a “a pattern of fraudulent statements, or one particularly egregious fraudulent statement.” BPI Energy Holdings, Inc. v. IEC (Montgomery), LLC, 664 F.3d 131, 136 (7th Cir. 2011) (internal citations omitted). Wigod alleges that she was a victim of a scheme to defraud: in her complaint, she accuses Wells Fargo of deliberately implementing a “system designed to wrongfully deprive its eligible HAMP borrowers of an opportunity to modify their mortgages.” Compl. ¶ 8. Whether she has alleged “specific, objective manifestations” of this scheme is a closer question, but we think it likely that Illinois courts would say yes.
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See, e.g., General Electric Credit Auto Lease, Inc. v. Jankuski, 532 N.E.2d 361, 381-83 (Ill. App. 1988) (finding that plaintiffs pled fraudulent scheme by alleging that auto dealership falsely promised that (1) the “holding agreement” executed with plaintiffs would be cancelled once their son signed a lease for the vehicle; and (2) the son could cancel his lease if he was later transferred overseas); Stamatakis Industries, 520 N.E.2d at 772-74 (holding that plaintiff properly pled a scheme to defraud by alleging that defendant
broke his promises to (1) make good on a contract for the purchase of equipment; and (2) enter into an employment contract for five years with a covenant not to compete). But see Doherty v. Kahn, 682 N.E.2d 163 (Ill. App. 1997) (holding that plaintiff did not plead scheme to defraud by alleging that defendant’s broken promises that (1) plaintiff would be president of company, (2) own 65 percent of the stock, and (3) earn a specified monthly salary).
In another case, the Illinois Supreme Court found that a single false promise made to the public at large satisfied the scheme exception to the general rule against promissory fraud.
See Steinberg v. Chicago Medical School, 371 N.E.2d 634, 641 (Ill. 1977) (finding a scheme to defraud alleged against a medical school that promised in its catalog to evaluate and admit applicants based on merit when in fact the school intended to make decisions based on monetary contributions). Wigod alleges that Wells Fargo madeNo. 11-1423 Page 39
and broke promises of permanent modifications to her and to thousands of other potential class members as well. If true, such a widespread pattern of deception could reasonably be considered a scheme under Illinois law and thus actionable as promissory fraud. See HPI Health Care Services v. Mount Vernon Hospital, Inc., 545 N.E.2d 672, 682 (Ill. 1989); Steinberg, 371 N.E.2d at 641.2. Fraudulent Concealment
The heightened pleading standard of Rule 9(b) also applies to fraudulent concealment claims. To plead this tort properly, in addition to meeting the elements of fraudulent misrepresentation, a plaintiff must allege that the defendant intentionally omitted or concealed a material fact that it was under a duty to disclose to the plaintiff. Weidner v. Karlin, 932 N.E.2d 602, 605 (Ill. App. 2010). A duty to disclose would arise if “plaintiff and defendant are in a fiduciary or confidential relationship” or in a “situation where plaintiff places trust and confidence in defendant, thereby placing defendant in a position of influence and superiority over plaintiff.” Connick v. Suzuki Motor Co., 675 N.E.2d 584, 593 (Ill. 1996). Wigod alleges that Wells Fargo knowingly concealed that it would (1) report her to credit rating agencies as being in default on her mortgage; and (2) reevaluate her eligibility for a permanent modification in contravention of HAMP directives. The district court dismissed this fraudulent concealment claim due to “the absence of any fiduciary or other duty to speak” on the
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part of Wells Fargo as a mortgagee. See Graham v. Midland Mortg. Co., 406 F. Supp. 2d 948, 953 (N.D. Ill. 2005) (“A mortgagor-mortgagee relationship does not create a fiduciary relationship as a matter of law.”), quoting Teachers Ins. & Annuity Ass’n of America v. LaSalle Nat’l Bank, 691 N.E.2d 881, 888 (Ill. App. 1998). In the district court, Wigod apparently conceded that Wells Fargo was not a fiduciary under Illinois law, but she argued that she placed a special trust and confidence in the bank as her HAMP servicer. The district court rejected this theory on the ground that any special trust relationship between Wigod and Wells Fargo existed solely through the lender’s participation in HAMP, which does not provide the borrower with a private right of action. For two reasons, we affirm the dismissal of the fraudulent concealment claim. First, Wigod’s special trust argument is waived: in this appeal, Wigod raised the issue only in her reply brief, and arguments raised for the first time in a reply brief are waived. Padula v. Leimbach, 656 F.3d 595, 605 (7th Cir. 2011). Second, even if we overlooked the waiver, we would agree with the district court that no special trust relationship existed here. Wells Fargo’s participation in HAMP is not sufficient to create a special trust relationship with Wigod and the roughly 250,000 other homeowners with whom it entered TPP Agreements. The Illinois Appellate Court has recently stated that the standard for identifying a special trust relationship is “extremely similar to that of a fiduciary relationship.” Benson v. Stafford, 941 N.E.2d 386, 403 (Ill. App. 2010).
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Accordingly, state and federal courts in Illinois have rarely found a special trust relationship to exist in the absence of a more formal fiduciary one. See, e.g., Go For It, Inc. v. Aircraft Sales Corp., No. 02 C 6158, 2003 WL 21504600, at *2 (N.D. Ill. June 27, 2003) (finding no confidential relationship in sale of airplane because “the parties’ relationship did not possess sufficient indicia of disparity in experience or knowledge such that defendants could be said to have gained influence and superiority over the plaintiff,” since “a slightly dominant business position does not operate to turn a formal, contractual relationship into a confidential or fiduciary relationship”); Benson, 941 N.E.2d at 403 (declining to find special trust relationship between options traders who had formed joint ventures because the plaintiffs alleging fraud could not show “that they trusted defendant” or that the defendant was in “a position of influence and superiority”); Martin v. State Farm Mutual Auto. Ins. Co., 808 N.E.2d 47, 52 (Ill. App. 2004) (finding that holders of automobile insurance policy did not have a special trust relationship with their insurer because “[t]here are no allegations of a history of dealings or long-standing relationship between the parties, or that plaintiffs had entrusted the handling of their insurance affairs to State Farm in the past, or that State Farm was in a position of such superiority and influence by reason of friendship, agency, or experience”); Miller v. William Chevrolet/GEO, Inc., 762 N.E.2d 1, 13-14 (Ill. App. 2001) (holding that the “arms length transaction” between a car dealer and a prospective customer “did not give rise to a confidential relationship sufficient to impose a
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general duty of disclosure under the fairly rigorous principles of common law” because “this dealer-customer relationship did not possess sufficient indicia of disparity in experience or knowledge such that the dealer could be said to have gained influence and superiority over the purchaser.”). But see Schrager v. North Community Bank, 767 N.E.2d 376, 386 (Ill. App. 2002) (finding, despite absence of fiduciary relationship, that special trust relationship existed between the plaintiff, an investor in a real estate venture, and the defendant bank who had induced the plaintiff to invest, “because defendants’ superior knowledge and experience of [the developers’ problematic] financial history, as well as the status of the . . . development project, including the necessity of a fresh guarantor, placed defendants in a position of influence over” the plaintiff).
The special relationship threshold is a high one: “the defendant must be ‘clearly dominant, either because of superior knowledge of the matter derived from . . . overmastering influence on the one side, or from weakness, dependence, or trust justifiably reposed on the other side.’ ” Miller, 762 N.E.2d at 13 (internal quotation marks omitted), quoting Mitchell v. Norman James Construction Co., 684 N.E.2d 872, 879 (Ill. App. 1997). As the Mitchell court explained:
Factors to be considered in determining the existence of a confidential relationship include the degree of kinship of the parties; any disparity in age, health, and mental condition; differences in education and business experience between the parties; and the
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extent to which the allegedly servient party entrusted the handling of her business affairs to the dominant party, and
whether the dominant party accepted such entrustment. 684 N.E.2d at 879. In short, the defendant accused of fraudulent concealment must exercise “overwhelming influence” over the plaintiff. Miller, 762 N.E.2d at 14.
In light of the weight of Illinois authority, Wells Fargo’s role as a HAMP servicer was not sufficient to find a special trust relationship with Wigod with respect to negotiating any modification. She claims that “HAMP requires servicers to provide borrowers with information to help them ‘understand the modification terms’ and to ‘minimize potential borrower confusion,’ ” and that she “relied on Wells Fargo to convey accurate information about the Program.” Reply Br. at 33. That may be so, but asymmetric information alone does not show the degree of dominance needed to establish a special trust relationship. See Miller, 762 N.E.2d at 13-14. Otherwise, virtually any mortgage lender would have a special trust relationship with its borrowers, regardless of HAMP participation — a proposition Illinois courts have clearly rejected. See, e.g., id., 762 N.E.2d at 14 (“Like the conventional mortgagor-mortgagee relationship that the Mitchell court found to fall short of a confidential relationship, this dealer-customer relationship did not possess sufficient indicia of disparity in experience or knowledge such that the dealer could be said to have gained influence and superiority over the purchaser.”); Mitchell, 684 N.E. 2d at 879 (“As a matter
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10 Illinois recognizes that a mortgagee owes a fiduciary duty to a mortgagor in some narrow aspects of the relationship, such as when the mortgagor retains control of borrowed money to pay expenses as an agent for the mortgagor, such as title insurance costs, as in Janes v. First Federal Savings and Loan Ass’n of Berwyn, 312 N.E.2d 605, 610-11 (Ill. 1974).
See also Orman v. Charles Schwab & Co., 688 N.E.2d 620, 621 (Ill. 1997). Wigod’s claim does not implicate those aspects of the relationship where the mortgagee acts as an agent for the mortgagor-principal and has a fiduciary duty to the mortgagor.
of law, a conventional mortgagor-mortgagee relationship standing alone does not give rise to a fiduciary or confidential relationship.”).10 The HAMP modification is an arm’s-length transaction between servicer and borrower, no less than is a home mortgage loan itself. By becoming Wigod’s HAMP servicer, Wells Fargo did not assume significant additional responsibility for handling Wigod’s business affairs. Like the original mortgagor-mortgagee relationship itself, the relevant aspects of the HAMP servicer-borrower relationship do not bear the fiduciary-like hallmarks of a special trust relationship under Illinois law. We affirm the dismissal of Wigod’s fraudulent concealment claim.
E. Negligent Misrepresentation or Concealment In the alternative to her fraudulent misrepresentation and concealment claims, Wigod alleges that Wells Fargo negligently or carelessly (rather than intentionally) misrepresented or omitted material facts. Negligent
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11 There is a dearth of Illinois case law on negligent concealment, and we can identify no cases that actually set forth the elements of the tort. One state appellate judge has denied that it is a distinct cause of action, at least in the context of contractor liability. See Moore v. Everett Snodgrass, Inc., 408 N.E.2d 1166, 1172 (Ill. App. 1980) (Stouder, J., concurring in part and dissenting in part) (“it is obvious that merely negligent concealment, without some type of fraud or intent to deceive, is not enough to make the contractor liable”). Nevertheless, the llinois courts do appear to accept it, at least in theory, even if its contours remain nebulous. See id. at 1170 (majority opinion). We assume the elements of negligent concealment are equivalent to those of a negligent misrepresentation claim, meaning the defendant must have negligently — but not intentionally — failed to disclose a material fact, and that he also must have owed some duty to the plaintiff to disclose it (which is also a requirement of the fraudulent concealment tort).
misrepresentation involves the same elements as fraudulent misrepresentation, except that (1) the defendant need not have known that the statement was false, but must merely have been negligent in failing to ascertain the truth of his statement; and (2) the defendant must have owed the plaintiff a duty to provide accurate information. See Kopley Group V., L.P. v. Sheridan Edgewater Properties, Ltd., 876 N.E.2d 218, 228 (Ill. App. 2007).11 Whether or not Wigod has successfully pled the elements of negligent misrepresentation and concealment, this claim is also barred by the economic loss doctrine. Any duty Wells Fargo may have had to provide accurate information to Wigod arose directly from their
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The 12 same analysis of course would apply to Wigod’s claim for fraudulent concealment, which also requires the existence of a duty to disclose. But recall that the Moorman doctrine admits an exception for claims alleging fraud. This exception saves the fraudulent concealment claim but not the negligent misrepresentation or concealment claim. See, e.g., Orix Credit Alliance, Inc. v. Taylor Machine Works, Inc., 125 F.3d 468, 475-77 (7th Cir. 1997) (applying Moorman doctrine to bar claim for negligent misrepresentation).
commercial and contractual relationship. Wigod is right that HAMP requires servicers to help borrowers understand
the modification terms. But this obligation is not owed to the general public — only to mortgagors in the HAMP modification process. If Wells Fargo had such obligations to Wigod, then, it was only because it executed a TPP agreement with her under HAMP. Any disclosure duties owed here are contractual ones and therefore do not sound in the torts of negligent misrepresentation or negligent concealment.
F. The Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA)
The ICFA protects consumers against “unfair or deceptive acts or practices,” including “fraud,” “false promise,” and the “misrepresentation or the concealment, suppression or omission of any material fact.” 815 ILCS 505/2. The Act is “liberally construed to effectuate its purpose.” No. 11-1423 47 Robinson v. Toyota Motor Credit Corp., 775 N.E. 2d 951, 960 (Ill. 2002). The elements of a claim under the ICFA are: “(1) a deceptive or unfair act or practice by the defendant; (2) the defendant’s intent that the plaintiff rely on the deceptive or unfair practice; and (3) the unfair or deceptive practice occurred during a course of conduct involving trade or commerce.” Siegel v. Shell Oil Co., 612 F.3d 932, 934 (7th Cir. 2010), citing Robinson, 775 N.E.2d at 960. In addition, “a plaintiff must demonstrate that the defendant’s conduct is the proximate cause of the injury.” Id. at 935.
Wigod accuses Wells Fargo of practices that are both deceptive and unfair. In her complaint, Wigod incorporates by reference her common-law fraud claims, alleging that Wells Fargo’s misrepresentation and concealment of material facts constituted deceptive business practices. Compl. ¶¶ 123-25. She also alleges that Wells Fargo dishonestly and ineffectually implemented HAMP, and that this conduct constituted “unfair, immoral, unscrupulous business practices.” Compl. ¶ 126. The district court dismissed Wigod’s ICFA claim on two grounds: first, because Wigod did not allege that
Wells Fargo acted with an intent to deceive her; and second, because Wigod did not plausibly plead that Wells Fargo’s conduct caused her any actual pecuniary injury. On both points, we disagree.
First, “intent to deceive” is not a required element of a claim under the ICFA, which provides redress “not only for deceptive business practices, but also for business practices that, while not deceptive, are unfair.” Boyd v.
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Accord 13 Chow v. Aegis Mortg. Corp., 286 F. Supp. 2d 956, 963 (N.D. Ill. 2003) (“To satisfy [the ICFA’s] intent requirement, plaintiff need not show that defendant intended to deceive the plaintiff, but only that the defendant intended the plaintiff to rely on the (intentionally or unintentionally) deceptive information given.”); Capiccioni v. Brennan Naperville, Inc., 791 N.E.2d 553, 558 (Ill. App. 2003) (“A defendant need not have intended to deceive the plaintiff; innocent misrepresentations or omissions intended to induce the plaintiff’s reliance are actionable under [the ICFA].”); Grove v. Huffman, 634 N.E.2d (continued…)
U.S. Bank, N.A. ex rel. Sasco Aames Mortg. Loan Trust Series 2003-1, 787 F. Supp. 2d 747, 751 (N.D. Ill. 2011) (holding that a loan servicer’s alleged failure to consider the plaintiff’s eligibility for a HAMP modification was a sufficient predicate for an ICFA claim); see 815 ILCS 505/2
(emphasis added); Siegel, 612 F.3d at 934-35 (“A plaintiff may allege that conduct is unfair under ICFA without alleging that the conduct is deceptive.”), citing Saunders v. Michigan Ave. Nat’l Bank, 662 N.E.2d 602, 608 (Ill. App. 1996). Wigod alleges that Wells Fargo engaged in both deceptive (fraudulent) and unfair business practices. Moreover, even if she had alleged only deceptive practices, pleading intent would still be unnecessary, since a “claim for ‘deceptive’ business practices under the Consumer Fraud Act does not require proof of intent to deceive.” Siegel v. Shell Oil Co., 480 F. Supp. 2d 1034, 1044 n.5 (N.D. Ill. 2007), aff’d, 612 F.3d 932.13 It is enough to allege that the defendant
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13 (…continued) 1184, 1188 (Ill. App. 1994) (“Courts of this State have consistently held that [the ICFA] applies to innocent misrepresentations.”); Duran v. Leslie Oldsmobile, Inc., 594 N.E.2d 1355, 1361 (Ill. App. 1992) (“The Consumer Fraud Act eliminated the requirement of scienter, and innocent misrepresentations are actionable as statutory fraud.”).
committed a deceptive or unfair act and intended that the plaintiff rely on that act, and Wigod has done so. The district court also concluded that Wigod did not identify any “actual pecuniary loss” that she suffered. Because Wigod’s reduced trial plan payments were less than the amount she was legally obliged to pay Wells Fargo under the terms of her original loan documents, the court reasoned that Wigod was better off than she would have been without the TPP. This reasoning overlooks Wigod’s allegations that she incurred costs and fees, lost other opportunities to save her home, suffered a negative impact to her credit, never received a Modification Agreement, and lost her ability to receive incentive
payments during the first five years of the modification. Prior to entering the trial plan, Wigod also could have taken the path of “efficient breach” and defaulted immediately rather than executing the TPP and making trial payments. By the time Wigod realized she would not receive the permanent modification she believed she had been promised, late fees had mounted and she found herself in default on her loan and with fewer options than when the trial period began. Whether any of these alternatives might have saved her home, or
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14 In a number of third-generation HAMP cases, district courts have found that plaintiffs successfully pled claims under other states’ analogous consumer fraud statutes. See, e. g., Allen v. CitiMortgage, Inc., No. CCB-10-2740, 2011 WL 3425665, at *10 (D. Md. Aug. 4, 2011)
at least cut her losses, is impossible to determine from the pleadings. Her allegations are at least plausible. She has alleged pecuniary injury caused by Wells Fargo’s deception and successfully pled the elements of an ICFA violation. Accord Boyd, 787 F. Supp. 2d at 754 (allegations of “damage to [homeowner’s] credit” and “the inability ‘to fairly negotiate a plan to stay in [his] home’ ” sufficiently pled economic damages under the ICFA); In re Bank of America Home Affordable Modification (HAMP) Contract Litigation, No. 10-md-02193-RWZ, 2011 WL 2637222, at *5-6 (D. Mass. July 6, 2011) (multi-district litigation) (denying motion to dismiss claims under fourteen states, consumer protection acts, including the ICFA).14
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14 (…continued) history, and the loss of other economic benefits of the loan modification. That is enough to sustain a claim of injury under [the Massachusetts Consumer Protection Act].”) (internal citation omitted).
III. Preemption and the “End-Run” Theory
We have now determined that Wigod has plausibly stated four claims arising under state law: breach of contract, promissory estoppel, fraudulent misrepresentation, and violation of the ICFA. We next examine whether federal law preempts or otherwise displaces them.
Aux Sable Liquid Products v. Murphy, 526 F.3d 1028, 1033 (7th Cir. 2008). Wells Fargo concedes that Wigod’s claims are not expressly preempted, but argues for both field preemption and conflict preemption. Wells Fargo also advances the novel theory that Wigod’s claims are displaced because they attempt an “end-run” on the lack of a private right of action under HAMP itself. We reject this “end-run” theory, along with Wells Fargo’s formal preemption arguments. Federal law does not displace Wigod’s state-law claims.
A. Field Preemption
In all preemption cases, “we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the
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clear and manifest purpose of Congress.” Wyeth v. Levine, 555 U.S. 555, 565 (2009) (internal quotation marks omitted), quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996). Under the doctrine of field preemption, however, a state law is preempted “if federal law so thoroughly occupies a legislative field ‘as to make reasonable the inference that Congress left no room for the States to supplement it.’ ” Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992) (internal quotation marks omitted), quoting Fidelity Federal Savings & Loan Ass’n v. De la Cuesta, 458 U.S. 141, 153 (1982).
Wells Fargo argues that the Home Owners Loan Act (HOLA) occupies the relevant field. Enacted to provide emergency relief from massive home loan defaults during the Great Depression, HOLA “empowered what is now the Office of Thrift Supervision [OTS] in the Treasury Department to authorize the creation of federal savings and loan associations, to regulate them, and by its regulations to preempt conflicting state law.” In re Ocwen Loan Servicing, LLC Mortg. Servicing Litigation, 491 F.3d 638, 642 (7th Cir. 2007). In one of its regulations, OTS announced that it “hereby occupies the entire field of lending regulation for federal savings associations.” 12 C.F.R. § 560.2(a). In the same section, however, the regulation contains the following saving clause: state tort, contract, and commercial laws are “not preempted to the extent that they only incidentally affect the lending operations of Federal savings associations or are otherwise consistent with the purposes of paragraph (a) of this section.” 12 C.F.R. § 560.2(c). Read together, these provisions mean that state laws that establish licensing,
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Regulations, as much as statutes, 15 may have preemptive force. See Wyeth, 555 U.S. at 576 (“This Court has recognized that an agency regulation with the force of law can pre-empt conflicting state requirements.”); De la Cuesta, 458 U.S. at 153 (“Federal regulations have no less pre-emptive effect than federal statutes.”).
registration, or other requirements specific to financial institutions cannot be applied to national banks, while laws of general applicability survive preemption so long as they do not effectively impose standards that conflict with federal ones. Cf. Watters v. Wachovia Bank, N.A., 550 U.S. 1, 11 (2007)
(analyzing preemption under the National Bank Act, which is applied analogously to HOLA).15 Arguing for field preemption, Wells Fargo contends that HOLA and the corresponding OTS regulations displace state common-law suits that effectively impose any standards for the processing and servicing of mortgage loans, whether they conflict with federal policy or not.
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customers, and setting standards for processing and servicing mortgages.” 491 F.3d at 643. Despite its regulatory authority, however, OTS “has no power to adjudicate disputes between [savings and loan associations] and their customers,” and “HOLA creates no private right to sue to enforce the provisions of the statute or the OTS’s regulations.” Id. “Against this background of limited remedial authority,” we held that HOLA and the OTS regulations did not preempt suits by “persons harmed by the wrongful acts of savings and loan associations” seeking “basic state common-law-type
remedies,” and we allowed state-law claims like those in this case — breach of contract, fraud, and violation of consumer protection statutes — to go forward. Id.
Ocwen thus stands for the principle that HOLA preempts generally applicable state laws only when they “could interfere with federal regulation” — that is, those that actually conflict with the regulatory program. Id. at 646. We decline to disturb this holding, which forecloses Wells Fargo’s argument for field preemption.
B. Conflict Preemption
The Supreme Court has “found implied conflict pre-emption where” either (1) “it is impossible for a private party to comply with both state and federal re
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In Wells Fargo’s 16 brief, this argument appears in the section on field preemption. Because in substance it is an argument for conflict preemption, we address it here.
quirements,” or (2) “where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995) (internal quotation marks omitted). Wells Fargo does not contend that it would be impossible, without violating federal law, for it to comply with the state-law duties Wigod’s suit seeks to impose. Instead, it invokes the second species of conflict preemption, which is known as “obstacle” preemption.
The first argument for obstacle preemption, like Wells Fargo’s theory of field preemption, is inconsistent with Ocwen. There we held that the plaintiff-mortgagors’ “conventional” state law claims against a federal savings and loan association for breach of contract, fraud, and deceptive business practices complemented rather than conflicted with HOLA:
Suppose an S & L signs a mortgage agreement with a homeowner that specifies an annual interest rate of
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6 percent and a year later bills the homeowner at a rate of 10 percent and when the homeowner refuses to pay institutes foreclosure proceedings. It would be surprising for a federal regulation to forbid the homeowner’s state to give the homeowner a defense based on the mortgagee’s breach of contract. Or if the mortgagee . . . fraudulently represents to the mortgagor that it will forgive a default, and then forecloses,
Thus a claim under Connecticut’s consumer protection statute alleging “exorbitant and usurious mortgages” was preempted, while “straight fraud claims” arising under both state common-law and consumer fraud statutes were not preempted. Id. at 647 (internal quotation mark omitted).
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tation claim. Wells Fargo nevertheless maintains that conflict preemption principles bar Wigod’s ICFA claims, attempting to distinguish Ocwen by arguing that these claims “would necessarily establish new standards for servicers’ customer relation policies.” The argument is not persuasive. The gist of Wigod’s ICFA claims is that Wells Fargo failed to disclose that it was going to reevaluate her eligibility for a permanent modification — contrary to the terms of both her TPP and HAMP program guidelines — and that it deceived her into believing it would modify her mortgage.
Wells Fargo’s second conflict preemption theory is that a finding of liability in Wigod’s suit would frustrate Congressional objectives in enacting the 2008 Act that authorized HAMP. Wells Fargo argues that claims like Wigod’s would generate such friction in three ways: First, they would force servicers to modify mort
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gages in violation of both Treasury directives and the servicers’ contractual obligations to the government. Second, they would invite many uncoordinated lawsuits, exposing servicers to varying standards of conduct. Third, they would discourage servicers from participating in HAMP. The arguments are not persuasive. The first theory is inapplicable because none of Wigod’s claims, at least as she has framed them, would impose on Wells Fargo any duties that go beyond its existing obligations under HAMP. As Wigod puts it, “if Wells Fargo followed the letter of the Program it would not have breached its contracts, acted negligently or fraudulently, or violated the ICFA.” The whole thrust of this suit is that Wells Fargo failed to do what it agreed to do and what HAMP required it to do. The breach of contract and fraudulent misrepresentation claims allege that
the TPP Agreement required Wells Fargo to offer Wigod a modification if she qualified under HAMP — and that she did and it didn’t.
One Wells Fargo defense, among others, will be that Wigod was not actually qualified, but that presents a factual dispute that cannot be resolved now. Likewise, the ICFA claim alleges that Wells Fargo failed to disclose that it would not follow HAMP guidelines. Again, it would be a complete defense that Wells Fargo did follow HAMP guidelines as they were incorporated into the terms of Wigod’s TPP, but that also presents a factual issue. For each of these claims, the state-law duty allegedly breached is imported from and delimited by federal standards established in HAMP’s program
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guidelines. Where federal law supplies the standard of care imposed by state law, it is hard to see how they could conflict. See, e.g., Bates v. Dow Agrosciences LLC, 544 U.S. 431, 448 (2005) (“a state cause of action that seeks to enforce a federal requirement ‘does not impose a requirement that is different from, or in addition to, requirements under federal law.’ ”) (internal quotation marks omitted), quoting Lohr, 518 U.S. at 513 (O’Connor, J., concurring in part and dissenting in part); Lohr, 518 U.S. at 495 (majority opinion)
For the same reason, we do not foresee any possibility that permitting suits such as Wigod’s will expose mortgage servicers to multiple and varied standards of conduct. So long as state laws do not impose substantive duties that go beyond HAMP’s requirements, loan servicers need only comply with the federal program to avoid incurring state-law liability.
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As for its contention that the potential exposure to state liability may discourage servicers from participating in HAMP, Wells Fargo may be right. But that is hardly an argument for conflict preemption. “[T]he purpose of Congress is the ultimate touchstone in every pre-emption case.” Wyeth, 555 U.S. at 565, quoting Lohr, 518 U.S. at 485. “Because the States are independent sovereigns in our federal system, we have long presumed that Congress does not cavalierly pre-empt state-law causes of action.” Bates, 544 U.S. at 449, also quoting Lohr, 518 U.S. at 485. We can reasonably assume that one purpose of Congress in enacting the 2008 Act was toensure mortgage servicers participated in the foreclosure mitigation programs it empowered Treasury to set up. But another goal was surely to prevent these banks from hoodwinking borrowers in the process. Nothing in the 2008 Act suggests that Congress saw servicer participation as the Act’s paramount purpose that would trump any concerns about whether servicers were actually complying with the program and with their contractual obligations. See Rodriguez v. United States, 480 U.S. 522, 525-26 (1987) (“no legislation pursues its purposes at all costs”). There is no indication that Congress meant to foreclose suits against servicers for violating state laws that impose obligations parallel to those established in a federal program. In addition, Treasury’s own HAMP directive states that servicers must implement the program in com
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pliance with state common law and statutes. See Supplemental Directive 09-01 (“Each servicer . . . must be aware of, and in full compliance with, all federal state, and local laws (including statutes, regulations, ordinances, administrative rules and orders that have the effect of law, and judicial rulings and opinions) . . . .”). This would be an odd provision if Treasury had anticipated that HAMP would preempt state-law claims, especially ones that mirror its own directives. In this context, the agency’s own tacit view of its program’s lack of preemptive force is entitled to some weight. See Wyeth, 555 U.S. at 577 (agencies “have a unique understanding of the statutes they administer and an attendant ability to make informed determinations about how state requirements may pose an ‘obstacle to the accomplishment and execution of the full purposes and objectives of Congress’”), quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941); Geier, 529 U.S. at 883 (placing “some weight” on agency’s interpretation of its own regulation’s objectives and its conclusion “that a tort suit . . . would ‘stand as an obstacle to the accomplishment and execution’ of those objectives”) (internal citations and quotation marks omitted).
C. The “End-Run” Theory
Finally, Wells Fargo insists that Wigod’s case cannot go forward because her allegations are “HAMP claims in disguise” and an “impermissible end-run around the lack of a private action in [the 2008 Act] and HAMP.” This “end-run” theory was the primary basis on which
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the district court dismissed Wigod’s complaint. That court explained that “ ‘the facts and allegations as pleaded in this case are premised chiefly on the terms and procedures set forth via HAMP and are not sufficiently independent to state a separate state law cause of action.’ ” Wigod, 2011 WL 250501, at *4, quoting Vida v. One West Bank, F.S.B., No. 10-987-AC, 2010 WL 5148473, at *3-4 (D. Or. Dec. 13, 2010). Wells Fargo has developed the same theory before this court, arguing: “If Congress had intended courts to be adjudicating whether a borrower qualified for a loan modification under [the 2008 Act] or HAMP, it would have provided a private right of action — but it chose not to do so.” The end-run theory is built on the novel assumption that where Congress does not create a private right of action for violation of a federal law, no right of action may exist under state law, either. Wells Fargo and the district court appear to have conflated two distinct lines of cases — one involving the existence of a federal private right of action, see Touche Ross & Co. v. Redington, 442 U.S. 560 (1979), and the other about federal preemption of state law. Wells Fargo invokes Touche Ross for the proposition that “when Congress wished to provide a private damage remedy, it knew how to do so and did so expressly.” Appellee’s Br. at 15, quoting Touche Ross, 442 U.S. at 572. If this case involved whether to recognize a federal right of action under HAMP, Touche Ross and its progeny would certainly weigh in favor of judicial caution. See Karahalios v. Nat’l Federation of Federal Employees, Local 1263, 489 U.S. 527, 533 (1989) (“It is also an ‘elemental canon’ of statutory construction
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that where a statute expressly provides a remedy, courts must be especially reluctant to provide additional remedies [under federal law].”), quoting Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11, 19 (1979). The issue here, however, is not whether federal law itself provides private remedies, but whether it displaces remedies otherwise available under state law. The absence of a private right of action from a federal statute provides no reason to dismiss a claim under a state law just because it refers to or incorporates some element of the federal law. See, e.g., Bates, 544 U.S. at 448 (“although [the Federal Insecticide, Fungicide, and Rodenticide Act] does not provide a federal remedy to
farmers and others who are injured as a result of a manufacturer’s violation of FIFRA’s labeling requirements, nothing in [the statute] precludes States from providing such a remedy”). To find otherwise would require adopting the novel presumption that where Congress provides no remedy under federal law, state law may not afford one in its stead. To appreciate the novelty of Wells Fargo’s argument, consider the many cases in which the Supreme Court has confronted issues of subject matter jurisdiction presented by state common-law claims that incorporate federal standards of conduct, without so much as a peep about whether state law may do so without being preempted. See, e.g., Grable & Sons Metal Products, Inc. v. Darue Engineering & Mfg., 545 U.S. 308, 312, 311, 315 (2005) (quiet title action brought under state law “turn[ed] on substantial question[ ] of federal law” because “the interpretation of the notice statute in the federal tax law” was
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an “essential element of [plaintiff’s] quiet title claim); Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 805-07 (1986) (violation of federal labeling requirements in the Federal Food, Drug, and Cosmetic Act created a rebuttable presumption of negligence and proximate cause under state tort law); Moore v. Chesapeake & Ohio Ry., 291 U.S. 205, 214-15 (1934) (Kentucky worker’s compensation statute provided that employer railroad’s violation of Federal Safety Appliance Acts would constitute negligence per se under state law). Of course, these well-known cases grappled with an issue different from the one before this court: whether the presence of a federal issue in a state-created cause of action gives rise to federal question jurisdiction under 28 U.S.C. § 1331. In none of these cases has the Supreme Court even suggested that the absence of a private right of action under a federal statute would prevent state law from providing a cause of action based in whole or in part on violations of the federal law. When the issue is whether “arising under” jurisdiction is available, Congressional silence matters a great deal, for our jurisdiction under § 1331 is determined by Congress. See Merrell Dow, 478 U.S. at 812 (stating that it would “undermine . . . congressional intent to . . . exercise federal-question jurisdiction and provide remedies for violations of [a] federal statute” that contains no private right of action, “solely because the violation of the federal statute” is an element of state law claim). When the federal court’s jurisdiction over state-law claims is based on diversity of citizenship, however, the
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absence of a private right of action in a federal statute actually weighs against preemption. See, e.g., Wyeth, 555 U.S. at 574 (“Congress did not provide a federal remedy for consumers harmed by unsafe or ineffective drugs in the 1938 statute or in any subsequent amendment. Evidently, it determined that widely available state rights of action provided appropriate relief for injured consumers.”). We realize that Wells Fargo does not style its “end-run” theory as a preemption argument. But in the absence of any other doctrinal foundation for it, we see no other way to classify it. As Judge Hibbler wrote in one of the HAMP cases in which claims under Illinois law survived a motion to dismiss, [There is no] general rule that where a state common law theory provides for liability for conduct that is also violative of federal law, a suit under the state common law is prohibited so long as the federal law does not provide for a private right of action. Indeed, it seems the only justification for such a rule would be federal preemption of state law. Fletcher v. OneWest Bank, FSB, No. 10 C 4682, 2011 WL 2648606, at *4 (N.D. Ill. June 30, 2011); see also Bosque, 762 F. Supp. 2d at 351 (“The fact that a TPP has a relationship to a federal statute and regulations does not require the dismissal of any state-law claims that arise under a TPP.”). In short, a state-law claim’s incorporation of federal law has never been regarded as disabling, whether the federal law has a private right of action or not. See Grable & Sons, 545 U.S. at 318-19 (“The violation of federal statutes and regulations is commonly given
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17 Compare Chan v. City of New York, 1 F.3d 96, 103 (2d Cir.1993) (holding that DBA confers no private right of action), with McDaniel v. University of Chicago, 548 F.2d 689, 695 (7th Cir. 1977) (finding private right of action in the DBA).
negligence per se effect in state tort proceedings.”), quoting Restatement (Third) of Torts § 14, Reporters’ Note, cmt. a, p. 195 (Tent. Draft No. 1, Mar. 28, 2001); Merrell Dow, 478 U.S. at 816 (“violation of the federal standard as an element of state tort recovery did not fundamentally change the state tort nature of the action”); W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 36, p. 221, n.9 (5th ed. 1984) (“the breach of a federal statute may support a negligence per se claim as a matter of state law”). Wells Fargo has tried to find some support for its end-run theory in two Second Circuit cases involving very different statutes. In Grochowski v. Phoenix Construction, 318 F.3d 80 (2d Cir. 2003), a construction contract between the City of New York and some general contractors required the latter to pay their laborers in accordance with the Davis-Bacon Act (DBA), a federal law that accords no private right of action, at least under Second Circuit precedent.17 The contractors did not do so, and their laborers sued them under New York common law for breach of contract as third-party beneficiaries. The district court granted the contractors’ motion to dismiss. A divided panel of the Second Circuit affirmed, reasoning that “no private right of action exists under” the DBA and that “the plaintiffs’ efforts to bring their
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claims as state common-law claims are clearly an impermissible ‘end run’ around the DBA.” Id. at 86 (emphasis added). The majority’s only elaboration of this theory was the following: At bottom, the plaintiffs’ state-law claims are indirect attempts at privately enforcing the prevailing wage schedules contained in the DBA. To allow a third-party private contract action aimed at enforcing those wage schedules would be “inconsistent with the underlying purpose of the legislative scheme and would interfere with the implementation of that scheme to the same extent as would a cause of action directly under the statute.” Davis v. United Air Lines, Inc., 575 F. Supp. 677, 680 (E.D.N.Y. 1983). Grochowski, 318 F.3d at 86. Judge Lynch dissented, criticizing the majority’s reliance on the “proposition[ ] that the plaintiffs may not make an ‘end-run’ around the absence of a private right of action” in the DBA. That, I respectfully submit, is a slogan, not an argument. And it is an erroneous slogan at that. . . . . . . The majority fails to cite any actual evidence, in the language or legislative history of the DBA, that Congress intended to prevent state law contract suits based on contractual promises to pay DBA prevailing wages — promises that Congress specifically required to be written into contracts that it must have assumed would be enforceable, like any other contracts, under state law. . . .
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18 As it happens, so did the New York Court of Appeals, which unanimously endorsed Judge Lynch’s interpretation of New York common law and held that “when a contractor has promised to pay its workers the prevailing wages required by the United States Housing Act, the workers may sue under state law to enforce the promise” as a third-party beneficiary. Cox v. NAP Construction Co., 891 N.E.2d 271, 273 (N.Y. 2008). The court dismissed the end-run theory in Grochowski as “flawed”: “We agree with Judge Lynch . . . . To say that Congress, in enacting the DBA, did not intend to create a federal right of action is not to say that Congress intended to prohibit, or preempt, state claims.” This raises a further puzzle with respect to the end-run theory. If a state court — or legislature, for that matter — expressly creates a state-law remedy for a violation of a federal law that lacks a private right of action, do federal courts have the authority to abrogate it under the Supremacy Clause? If the end-run theory were a species of federal preemption, the answer would clearly be yes. See, e.g., Rose v. Arkansas State Police, 479 U.S. 1, 3 (1986) (per curiam) (continued…) . . . If New York law provides a right or remedy, any plaintiff has an absolute right to invoke it, unless the New York law is contrary to or pre-empted by federal law. But the majority does not even make a pass at demonstrating that the DBA displaces state contract law, or that New York’s willingness to enforce contractual promises to pay the prevailing wage is contrary to, rather than supportive of, the federal policy embodied in the DBA. Id. at 90-91 (Lynch, J., dissenting in part). We think Judge Lynch has the better of this argument.18 The end-run
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18 (…continued) (“There can be no dispute that the Supremacy Clause invalidates all state laws that conflict or interfere with an Act of Congress.”); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 211 (1824) (“In every such case, the act of Congress, or the treaty, is supreme; and the law of the State, though enacted in the exercise of powers not controverted, must yield to it.”). But the interplay between the Second Circuit and the New York Court of Appeals in Grochowski and Cox suggests that some other legal principle was at work. The confusion further convinces us that the end-run theory lies in a doctrinal no-man’s land, and its adoption would upset a century or two of preemption and arising-under jurisdictional precedents. See, e.g., Gully v. First National Bank, 299 U.S. 109, 115 (1936) (“Not every question of federal law emerging in a suit is proof that a federal law is the basis of the suit.”); see also Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 215 (1921) (Holmes, J., dissenting) (“The mere adoption by a State law of a United States law as a criterion or test, when the law of the United States has no force proprio vigore, does not cause a case under the State law to be also a case under the law of the United States, and so it has been decided by this Court again and again.”).
theory, as it is described by the majority, bears a striking resemblance to obstacle preemption, with its reference to the state law’s “inconsisten[cy] with the underlying purpose of the [federal] regulatory scheme.” Id. at 86. Yet, as Judge Lynch pointed out, there is no evidence that Congressional intent — the touchstone of any preemption inquiry — was to preempt state law with the DBA. It seems to us that the Grochowski end-run theory is really just an “end-run” around well
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To the extent the Supreme C 19 court’s citation of Grochowski in Astra USA, Inc. v. Santa Clara County, 131 S. Ct. 1342 (2011), connotes an endorsement, we think it is limited to the third-party beneficiary context. See Astra, 131 S. Ct. at 1348 (citing Grochowski as holding that “when a government contract confirms a statutory obligation, ‘a third-party private contract action [to enforce that obligation] would be inconsistent with . . . the legislative scheme . . . to the same extent as would a cause of action directly under the statute’ ”). In any third-party beneficiary case, a “nonparty becomes legally entitled to a benefit promised in a contract . . . only if the contracting parties so intend.” Id. In Astra, the absence of a private right of action in the federal program was important because it showed that Congress did not intend plaintiffs to be third-party beneficiaries. See id. In this case, however, the question is not whether HAMP mortgagors were intended third-party beneficiaries of the federal contracts with servicers but whether Congress intended to preclude them from enforcing contracts to which they themselves were parties. That is a preemption question not addressed in Astra, which mentions preemption only once, in a footnote dealing with a tertiary issue on which the Court took no position.
Id. at 1349 n.5. established preemption doctrine, and we decline to adopt it.19 Wells Fargo also cites Broder v. Cablevision Systems Corp., 418 F.3d 187 (2d Cir. 2005), which contains a brief and tepid reference to Grochowski. The case involved a cable television provider that extended a discounted rate to certain customers without offering or disclosing it to others — a practice the plaintiff alleged to violate both
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the federal Consumer Protection and Competition Act (CPCA) and a New York state statute. Neither law, however, provided for a private right of action, so the plaintiff sued for common-law breach of contract and fraud and for deceptive practices under the New York General Business Law. The Second Circuit affirmed the dismissal of the plaintiff’s breach of contract claim on the ground that “the contract language . . . unambiguously foreclose[d] his claims.” Broder, 418 F.3d at 197. The court did not rely on Grochowski, but noted that the district court had embraced its end-run theory in an “alternative ground of decision.” Broder, 418 F.3d at 198 (emphasis added). The panel wrote: However narrow or broad the proper interpretation of our holding in Grochowski may be, that case stands at least for the proposition that 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. Broder, 418 F.3d at 198. Here, however, we have found that Wigod has alleged a breach of contract claim under the plain language of the TPP agreement, with no “straining” required to reach this conclusion. Thus, even if Broder had endorsed Grochowski’s end-run theory, and even if it had done so in its holding rather than in dicta, it would not apply to Wigod’s breach of contract claim. The end-run theory made a second appearance in Broder during the court’s discussion of the plaintiff’s deceptive practices claims under the New York General Business Law, although the court did not call it that or
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even cite Grochowski. Instead, the court used the term “circumvention,” holding that the plaintiff was not allowed to “circumvent the lack of a private right of action for violation of” the CPCA by alleging that non-uniform rates were deceptive under state law. Id. at 199. From Congress’s omission of a private right of action in the CPCA, the court inferred that it intended to foreclose state remedies as well, and declined to “attribute[ ] to the New York legislature an intent to thwart Congress’s intentions.” Id. We find that inference difficult to reconcile with cases like Bates, 544 U.S. at 448, and Wyeth, 555 U.S. at 574, but it matters little since this part of Broder’s holding is easily distinguishable. Broder dealt with a different federal law altogether and expressly confined its holding to apply only to the CPCA. Broder, 418 F.3d at 199. Furthermore, Wigod’s ICFA claims do not allege that Wells Fargo engaged in unfair or deceptive business practices by violating HAMP guidelines. Rather, she contends that Wells Fargo’s misrepresentation and omission of material facts misled her to believe she would receive a permanent modification under HAMP and that it implemented its HAMP compliance procedures in a way designed to thwart borrowers’ legitimate expectations. The plaintiff in Broder, in contrast, alleged that Cablevision’s violation of the CPCA’s uniform rate requirement was itself a deceptive practice. In his reply brief to the Second Circuit, he refined his argument along the lines of Wigod’s. The court indicated that this “subtler argument” was more passable but declined to consider it because it was waived. Id. at 202. Wigod has made
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this argument all along, and so her ICFA claims are not inconsistent with Broder.
IV. Conclusion
We predict that the Illinois courts would find some of Wigod’s claims actionable under the laws of their state, and we can find no basis in the law of federal preemption that would bar those claims. The judgment of the district court is therefore REVERSED as to Counts I, II, and VII, and the fraudulent misrepresentation claim of Count V, and AFFIRMED as to Counts IV, VI, and the fraudulent concealment claim of Count V. The case is REMANDED for further proceedings on the surviving counts.
RIPPLE, Circuit Judge, concurring. I am very pleased
to join the excellent opinion of the court written by
Judge Hamilton. I write separately only to note that, in
my view, our task of adjudicating this matter would
have been assisted significantly if the United States had
entered this case as an amicus curiae.
The Emergency Economic Stabilization Act, P.L. 110-
343, 122 Stat. 3765, and the programs implemented under
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its authority are of vital importance to the economic
health of the Country. Prolonged litigation is hardly a
catalyst to the effective administration of these programs.
As the opinion for the court details with great care,
the program at issue here has been the subject of many
cases in the district courts. Efficient and accurate resolution
in this court is important to the effective administration
of the legislative program and, in that respect, the
views of the executive department charged with the
administration of the statute undoubtedly would have
been of great assistance.
I hasten to add that, in suggesting that the participation
of the United States would have been helpful to us,
I do not mean to criticize in the least the efforts of
counsel for the private parties before us. The perspective
brought to a case such as this by the Government is
simply different. It is uniquely qualified to express the
purpose and the operation of the statute and to represent
the public interest.
I also must qualify my view in another respect. From
my vantage point, I am not privy, of course, to the
myriad of considerations that must govern the allocation
of legal resources in a Government whose legal talent is
certainly not under-used. Indeed, the demands on those
resources are overwhelming. It may well be that the
participation of the Government in a case such as this
one is simply not possible in the real world of limited
resources in which we live.
I note that it is possible for the court to invite the Government’s
participation as an amicus in cases of such
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public importance. Indeed, we do so with some regularity.
There are, however, costs to proceeding in
that manner. The need for such participation often
becomes apparent only after there has been significant
judicial scrutiny of the case. Such scrutiny is possible,
at least in this circuit, only shortly before oral argument.
As a practical matter, seeking the participation of the
Government at that point in the life of an appellate
case inevitably increases, often significantly, the elapsed
time before final adjudication.
In this case, this last consideration justifies the
decision to proceed without further delay. Prompt resolution
of this matter is necessary not only for the good
of the litigants but for the good of the Country. As the
quality of my colleague’s opinion reflects, moreover,
there is no reason for further delay. Nevertheless, the
salutary practice of the Government’s participating in
private litigation of public importance must remain
alive and well in the tradition of the court.
3-7-12