The 7th Circuit’s opinion in Wigod v. Wells Fargo supports everyone who has been offered a HAMP trial period and then was dishonestly denied loan Modification.
I highlighted some of the particularly interesting bits. Overall, the case made me feel a lot less hopeless. I found it worthwhile to read, even the bits didn’t seem to apply to my case. Basically, Wigod v. Wells Fargo made me see that Wells Fargo was wrong to do what it did to me.
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
No. 11-1423
LORI WIGOD,
Plaintiff-Appellant,
v.
WELLS FARGO BANK, N.A.,
Defendant-Appellee.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
No. 1:10-cv-02348—Blanche M. Manning, Judge.
ARGUED OCTOBER 26, 2011—DECIDED MARCH 7, 2012
Before RIPPLE and HAMILTON, Circuit Judges, and MYERSCOUGH, District Judge.
HAMILTON, Circuit Judge. We are asked in this appeal to determine whether Lori Wigod has stated claims under Illinois law against her home mortgage servicer for refusing to modify her loan pursuant to the federal
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Home Affordable Mortgage Program (HAMP). The U.S. Department of the Treasury implemented HAMP to help homeowners avoid foreclosure amidst the sharp decline in the nation’s housing market in 2008. In 2009, Wells Fargo issued Wigod a four-month “trial” loan modification, under which it agreed to permanently modify the loan if she qualified under HAMP guidelines.
The court reasoned that Wigod’s claims were premised on Wells Fargo’s obligations under HAMP, which does not confer a private federal right of action on borrowers to enforce its requirements.This appeal followed, and it presents two sets of issues. The first set of issues concerns whether Wigod has stated viable claims under Illinois common law and the ICFA. We conclude that she has on four counts.
Wigod alleges that Wells Fargo agreed to permanently modify her home loan, deliberately misled her into believing it would do so, and then refused to make good on its promise. These allegations support garden-variety claims for breach of contract or promissory estoppel. She has also plausibly alleged that Wells Fargo com-
No.11-1423 Page 3
mitted fraud under Illinois common law and engaged in unfair or deceptive business practices in violation of the ICFA. Wigod’s claims for negligent hiring or supervision and for negligent misrepresentation or concealment are not viable, however. They are barred by Illinois’s economic loss doctrine because she alleges only economic harms arising from a contractual relationship. Wigod’s claim for fraudulent concealment is also not actionable because she cannot show that Wells Fargo owed her a fiduciary or other duty of disclosure.
HAMP and its enabling statute do not contain a federal right of action, but neither do they preempt otherwise viable state law claims. We accordingly reverse the judgment of the district court on the contract, promissory estoppel, fraudulent misrepresentation, and ICFA claims, and affirm its judgment on the negligence claims and fraudulent
concealment claim.
I. Factual and Procedural Background
We review de novo the district court’s decision to dismiss Wigod’s complaint for failure to state a claim. E.g., Abcarian v. McDonald, 617 F.3d 931, 933 (7th Cir. 2010). We must accept as true all factual allegations in the complaint. E.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007). Under the federal rules’ notice pleading standard, a complaint must contain only a “short and plain statement of the claim showing that the pleader is entitled to relief.”
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Fed. R. Civ. P. 8(a)(2). The complaint will survive a motion to dismiss if it “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, ___ (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. A party who appeals from a Rule 12(b)(6) dismissal may elaborate on her allegations so long as the elaborations are consistent with the pleading. See Chavez v. Illinois State Police, 251 F.3d 612, 650 (7th Cir. 2001); Highsmith v. Chrysler Credit Corp., 18 F.3d 434, 439-40 (7th Cir. 1994) (reversing dismissal in relevant part based on such new elaborations); Dawson v. General Motors Corp., 977 F.2d 369, 372 (7th Cir. 1992) (reversing dismissal based on new elaborations).
In deciding a Rule 12(b)(6) motion, the court may also consider documents attached to the pleading without converting the motion into one for summary judgment. See Fed. R. Civ. P. 10(c). Wigod attached to her complaint her trial loan modification agreement with Wells Fargo, along with a variety of other documents produced in the course of the parties’ commercial relationship. The court may also consider public documents and reports of administrative bodies that are proper subjects for judicial notice, though caution is necessary, of course. SePapasan v. Allain, 478 U.S. 265, 268 n.1 (1986); 520 South Michigan Ave. Associates, Ltd. v. Shannon, 549 F.3d 1119, 1137 n.14 (7th Cir. 2008); Radaszewksi ex rel. Radaszewski v.
No. 11-1423 Page 5
Maram, 383 F.3d 599, 600 (7th Cir. 2004); Menominee Indian Tribe of Wisconsin v. Thompson, 161 F.3d 449, 456 (7th Cir. 1998). We have done so here to provide background information on the HAMP program.
A. The Home Affordable Mortgage Program
Pursuant to this authority, in February 2009 the Secretary set aside up to $50 billion of TARP funds to induce lenders to refinance mortgages with more favorable interest rates and thereby allow homeowners to avoid foreclosure. The Secretary negotiated Servicer Participation Agreements (SPAs) with dozens of home loan servicers, including Wells Fargo. Under the terms of the SPAs, servicers agreed to identify homeowners who were in default or would likely soon be in default on their mortgage payments, and to modify the loans
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Footnote 1: The order of operations in the waterfall method is: (1) capitalize accrued interest and escrow advances to third parties; (2) reduce the annual interest rate to as low as 2 percent; 3) extend the term up to 40 years and reamortize the loan; (continued…)
of those eligible under the program. In exchange, servicers would receive a $1,000 payment for each permanent modification, along with other incentives. The SPAs stated that servicers “shall perform the loan modification . . . described in . . . the Program guidelines and procedures issued by the Treasury . . . and . . . any supplemental documentation, instructions, bulletins, letters, directives, or other communications . . . issued by the Treasury.” In such supplemental guidelines, Treasury directed servicers to determine each borrower’s eligibility for a modification by following what amounted to a three-step process:
First, the borrower had to meet certain threshold requirements, including that the loan originated on or before January 1, 2009; it was secured by the borrower’s primary residence; the mortgage payments were more than 31 percent of the borrower’s monthly income; and, for a one-unit home, the current unpaid principal balance was no greater than $729,750.
Second, the servicer calculated a modification using a “waterfall” method, applying enumerated changes in a specified order until the borrower’s monthly mortgage payment ratio dropped “as close as possible to 31percent.”1
No. 11-1423 Page 7
Footnote 1: (…continued)
and (4) if necessary, forbear repayment of principal until the loan is paid off and waive interest on the deferred amount. U.S. Dep’t of the Treasury, Home Affordable Modification Program Supplemental Directive 09-01 (Apr. 6, 2009) (hereinafter “Supplemental Directive 09-01”).
Third, the servicer applied a Net Present Value (NPV) test to assess whether the modified mortgage’s value to the servicer would be greater than the return on the mortgage if unmodified. The NPV test is “essentially an accounting calculation to determine whether it is more profitable to modify the loan or allow the loan to go into foreclosure.” Williams v. Geithner, No. 09-1959 ADM/JJG, 2009 WL 3757380, at *3 n.3 (D. Minn. Nov. 9, 2009). If the NPV result was negative — that is, the value of the modified mortgage would be lower than the servicer’s expected return after foreclosure — the servicer was not obliged to offer a modification. If the NPV was positive, however,
B. The Trial Period Plan
Where a borrower qualified for a HAMP loan modification, the modification process itself consisted of two stages. After determining a borrower was eligible, the servicer implemented a Trial Period Plan (TPP) under the new loan repayment terms it formulated using the waterfall method. The trial period under the TPP lasted
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Treasury changed this 2 policy in 2010, however, to allow servicers to offer a trial modification only after reviewing a borrower’s documented financial information. The reason for the change was that loan servicers were converting trial (continued…)
three or more months, during which time the lender “must service the mortgage loan . . . in the same manner as it would service a loan in forbearance.” Supplemental Directive 09-01. After the trial period, if the borrower complied with all terms of the TPP Agreement — including making all required payments and providing all required documentation — and if the borrower’s representations remained true and correct, the servicer had to offer a permanent modification. See Supplemental Directive 09-01 (“If the borrower complies with the terms and conditions of the Trial Period Plan, the loan modification will become effective on the first day of the month following the trial period . . . .”). Treasury modified its directives on the timing of the verification process in a way that affects this case. Under the original guidelines that were in effect when Wigod applied for a modification, a servicer could initiate a TPP based on a borrower’s undocumented representations about her finances. See Supplemental Directive 09-01 (“Servicers may use recent verbal [sic] financial information to prepare and offer a Trial Period Plan. Servicers are not required to verify financial information prior to the effective date of the trial period.”). Those guidelines were part of a decision to roll out HAMP very quickly.2
No. 11-1423 Page 9
Footnote 2: (…continued)
modifications to permanent ones at a rate far below Treasury’s expectations. Treasury originally projected that 3 to 4 million homeowners would receive permanent modifications under HAMP. Yet one year into the program, only 170,000 borrowers had received permanent modifications — fewer than 15 percent of the 1.4 million homeowners who had been offered trial plans.
C. Plaintiff’s Loan
In September 2007, Wigod obtained a home mortgage loan for $728,500 from Wachovia Mortgage, which later merged into Wells Fargo. (For simplicity, we refer only to Wells Fargo here.)
Only after Wigod provided all required financial documentation did Wells Fargo, in mid-May 2009, determine that Wigod was eligible for HAMP and send her a TPP Agreement. The TPP stated: “I understand that after I sign and return two copies of this Plan to the Lender, the Lender will send me a signed copy of this Plan if I qualify for the [permanent modification] Offer or will send me written notice that I do not qualify for the Offer.” TPP ¶ 2.
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On May 28, 2009, Wigod signed two copies of the TPP Agreement and returned them to the bank, along with additional documents and the first of four modified trial period payments. Wells Fargo then executed the TPP Agreement and sent a copy to Wigod in early June 2009. The trial term ran from July 1, 2009 to November 1, 2009. The TPP Agreement provided: “If I am in compliance with this Loan Trial Period and my representations in Section 1 continue to be true in all material respects, then the Lender will provide me with a [permanent] Loan Modification Agreement.” TPP ¶ 1.
No. 11-1423 Page 11
The assertion must be disregarded because it presents a factual question that cannot be resolved in deciding a Rule 12(b)(6) motion. E.g., Morrison v. YTB Int’l, Inc., 649 F.3d 533, 538 (7th Cir. 2011).
Wells Fargo responds that Treasury guidelines then in force allowed the servicer to verify, after initiating a trial modification, that the borrower satisfied all government and investor criteria for a permanent modification, and that Wigod did not. In the course of this proceeding, however, Wells Fargo has not identified the specific criteria that Wigod failed to satisfy, except to say that it could not craft a permanent modification plan for her that would be consistent with its investor guidelines. Because we are reviewing a Rule 12(b)(6) dismissal, we disregard Wells Fargo’s effort to contradict the complaint.3
D. Procedural History
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and were nevertheless denied permanent modifications.
No. 11-1423 Page 13
Footnote 4: We have identified more than 80 other federal cases in which mortgagors brought HAMP-related claims. The legal theories relied on by these plaintiffs fit into three groups.
First, some homeowners tried to assert rights arising under HAMP itself. Courts have uniformly rejected these claims because HAMP does not create a private federal right of action for borrowers against servicers. See, e.g., Simon v. Bank of Am., N.A., No. 10-cv-00300-GMN-LRL, 2010 WL 2609436, at *10 (D. Nev. June 23, 2010) (dismissing claim because HAMP “does not provide borrowers with a private cause of action against lenders for failing to consider their application for loan modification, or even to modify an eligible loan”).
In the second group, plaintiffs claimed to be third-party beneficiaries of their loan servicers’ SPAs with the United States. Most but not all courts dismissed these challenges as well, holding that borrowers were not intended third-party beneficiaries of the SPAs. Compare Villa v. Wells Fargo Bank, N.A., No. 10CV81 DMS (WVG), 2010 WL 935680, at *2-3 (S.D. Cal. Mar. 15, 2010) (granting motion to dismiss claims of plaintiff pursuing third-party beneficiary theory), and Escobedo v. (continued…)
concluded was a required element under the ICFA. Wigod appeals the district court’s decision as to all claims but Count III.
We first examine whether Wigod has adequately pled viable claims under Illinois law, and we conclude that she has done so for breach of contract, promissory estoppel, fraudulent misrepresentation, and violation of the ICFA. We then consider whether federal law precludes Wigod from pursuing her state-law claims, and we hold that it does not.4
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Footnote 4: (…continued)
Countrywide Home Loans, Inc., No. 09 cv1557 BTM (BLM), 2009 WL 4981618, at *2-3 (S.D. Cal. Dec. 15, 2009) (same), with Sampson v. Wells Fargo Home Mortg., Inc., No. CV 10-08836 DDP (SSx), 2010 WL 5397236, at *3 (C.D. Cal. Nov. 19, 2010) (“Here, the court is persuaded that Plaintiff —
The courts denying motions to dismiss may have been led astray by County of Santa Clara v. Astra USA, Inc., 588 F.3d 1237 (9th Cir. 2009), which was reversed by the Supreme Court. See Astra USA, Inc. v. Santa Clara County, 131 S. Ct. 1342 (2011).
Here, too, Congress did not create a private right of action to enforce the HAMP guidelines, and since Astra, district courts have correctly applied the Court’s decision to foreclose claims by homeowners seeking HAMP modifications as third-party beneficiaries of SPAs. See, e.g, Boyd v. U.S. Bank, N.A. ex rel. Sasco Aames Mortg. Loan Trust, Series 2003-1, 787 F. Supp. 2d 747, 757 (N.D. Ill. 2011).
(continued…)
No. 11-1423 Page 15
Footnote 4: (…continued)
courts granted motions to dismiss in full. See, e.g., Nadan v. Homesales, Inc., No. CV F 11-1181 LJO SKO, 2011 WL 3584213 (E.D. Cal. Aug. 12, 2011); Vida v. OneWest Bank, F.S.B., No. 10-987-AC, 2010 WL 5148473 (D. Or. Dec. 13, 2010). In 30 or so cases, courts denied the motions in full or in part, allowing claims based on contract, tort, and/or state consumer fraud statutes to go forward. See, e.g., Allen v. Citi Mortgage, Inc., No. CCB-10-2740, 2011 WL 3425665 (D. Md. Aug. 4, 2011); Bosque v. Wells Fargo Bank, N.A., 762 F. Supp. 2d 342 (D. Mass. 2011). For particularly instructive discussions of some of the issues involved in these cases, compare In re Bank of America Home Affordable Modification Program (HAMP) Contract Litigation, No. 10-md-02193-RWZ, 2011 WL 2637222, at *3-6 (D. Mass. July 6, 2011) (multi-district litigation) (denying defendant’s motion to dismiss claims for breach of contract and violation of state consumer protection statutes), with Bourdelai v. J.P. Morgan Chase, No. 3:10 V670-HEH, 2011 WL 1306311, at *3-6 (E. D. Va. Apr. 1, 2011) (dismissing claims for breach of contract). See generally John R. Chiles & Matthew T Mitchell, Hamp: An Overview of the Program and Recent Litigation Trends, 65 Consumer Fin. L. Q. Rep. 194, 195 (2011) (examining the “current litigation trends in this recent spate of HAMP-related lawsuits”).
II. State-Law Claims
A. Breach of Contract
Associa-
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Footnote 5: Paragraph 1 provided:
If I am in compliance with this Loan Trial Period and my representations in Section 1 continue to be true in all material respects, then the Lender will provide me with a Loan Modification Agreement, as set forth in Section 3, that would amend and supplement (1) the Mortgage on the Property, and (2) the Note secured by the Mortgage.
Section 3 stated:
If I comply with the requirements in Section 2 and my representations in Section 1 continue to be true in all material respects, the Lender will send me a Modification Agreement for my signature which will modify my Loan Documents as necessary to reflect this new payment amount and waive any unpaid late charges accrued to date.
tion Benefit Services, Inc. v. Caremark RX, Inc., 493 F.3d 841, 849 (7th Cir. 2007), quoting MC Baldwin Fin. Co. v. DiMaggio, Rosario & Veraja, LLC, 845 N.E.2d 22, 30 (Ill. App. 2006). In two different provisions of the TPP Agreement, paragraph 1 and section 3, Wells Fargo promised to offer Wigod a permanent loan modification if two conditions were satisfied: (1) she complied with the terms of the TPP by making timely payments and disclosures; and (2) her representations remained true and accurate.5
Wigod alleges that she met both conditions and accepted the offer, but that Wells Fargo refused to provide a permanent modification. These allegations state a claim for breach of contract.
No. 11-1423 Page 17
.
1. Valid Offer
In Illinois, the “test for an offer is whether it induces a reasonable belief in the recipient that he can, by accepting, bind the sender.” Boomer v. AT&T Corp., 309 F.3d 404, 415 (7th Cir. 2002), quoting McCarty v. Verson Allsteel Press Co., 411 N.E.2d 936, 943 (Ill. App. 1980); see also Restatement (Second) of Contracts § 24 (1981) (“An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.”). To determine whether the TPP made a definite (though conditional) offer of permanent modification, we examine the language of the agreement itself and the surrounding circumstances. See Restatement (Second) of Contracts § 26, cmts. a & c (1981), citing R.E. Crummer & Co. v. Nuveen, 147 F.2d 3, 5 (7th Cir. 1945).
Wells Fargo contends that the TPP was not an enforceable offer to permanently modify Wigod’s mortgage
because it was conditioned on Wells Fargo’s further review of her financial information to ensure she
qualified under HAMP. Under contract law principles, when “some further act of the purported offeror is necessary, the purported offeree has no power to create contractual relations, and there is as yet no operative offer.” 1 Joseph M. Perillo, Corbin on Contracts § 1.11, at 31 (rev. ed. 1993) (hereinafter “Corbin on Contracts (rev. ed.)”), citing
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Bank of Benton v. Cogdill, 454 N.E.2d 1120, 1125-26 (Ill. App. 1983). Thus, “a person can prevent his submission from being treated as an offer by [using] suitable language conditioning the formation of a contract on some further step, such as approval by corporate headquarters.” Architectural Metal Systems, Inc. v. Consolidated Systems, Inc., 58 F.3d 1227, 1230 (7th Cir. 1995) (Illinois law).
No. 11-1423 Page 19
festation of assent.”), quoting Restatement (Second) of Contracts § 26 (1981).
Here the TPP spelled out two conditions precedent to Wells Fargo’s obligation to offer a permanent modification: Wigod had to comply with the requirements of the trial plan, and her financial information had to remain true and accurate. But these were conditions to be satisfied by the promisee (Wigod) rather than conditions requiring further manifestation of assent by the promisor (Wells Fargo). These conditions were therefore consistent with treating the TPP as an offer for permanent modification.
Wells Fargo insists that its obligation to modify Wigod’s mortgage was also contingent on its determination, after the trial period began, that she qualified under HAMP guidelines. That theory conflicts with the plain terms of the TPP. At the beginning, when Wigod received the unsigned TPP, she had to furnish Wells Fargo with “documents to permit verification of . . . [her] income . . . to determine whether [she] qualif[ied] for the offer.” TPP ¶ 2. The TPP then provided: “I understand that after I sign and return two copies of this Plan to the Lender, the Lender will send me a signed copy of this Plan if I qualify for the Offer or will send me written notice that I do not qualify for the offer.” TPP ¶ 2 (emphasis added). Wigod signed two copies of the Plan on May 29, 2009, and returned them along with additional financial documentation to Wells Fargo.
Under the terms of the TPP Agreement, then, that moment was Wells Fargo’s opportunity to determine
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whether Wigod qualified. If she did not, it could have and should have denied her a modification on that basis.
Instead, Wells Fargo countersigned on June 4, 2009 and mailed a copy to Wigod with a letter congratulating her on her approval for a trial modification. In so doing, Wells Fargo communicated to Wigod that she qualified for HAMP and would receive a permanent “Loan Modification Agreement” after the trial period, provided she was “in compliance with this Loan Trial Period and [her] representations . . . continue[d] to be true in all material respects.” TPP ¶ 1.
In more abstract terms, then, when Wells Fargo executed the TPP, its terms included a unilateral offer to modify Wigod’s loan conditioned on her compliance with the stated terms of the bargain.
Architectural Metal Systems, 58 F.3d at 1229, citing McCarty, 411 N.E.2d at 943; see also 1 Williston on Contracts § 4.10 (offer existed if the purported offeree “reasonably [could] have supposed that by acting in accordance with it a contract could be concluded”). Here a reasonable person in Wigod’s position would read the TPP
.
This is so notwithstanding the qualifying language in section 2 of the TPP. An acknowledgment in that section provided: “I understand that the Plan is not a modification of the Loan Documents and that the Loan
No. 11-1423 Page 21
Footnote 6: The immediately preceding paragraph of the TPP contains a substantially similar acknowledgment: “If prior to the Modification Effective Date, (i) the Lender does not provide me a fully executed copy of this Plan and the Modification Agreement; (ii) I have not made the Trial Period payments required under Section 2 of this Plan; or (iii) the Lender determines that my representations in Section 1 are no longer true and correct, the Loan Documents will not be modified and the Plan will terminate.” TPP § 2.F.
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 of the Modification Agreement, and (iii) the Modification Effective Date has passed.” TPP § 2.G.6
According to Wells Fargo, this provision meant that all of its obligations to Wigod terminated if Wells Fargo itself chose not to deliver “a fully executed TPP and ‘Modification Agreement’ by November 1, 2009.” In other words, Wells Fargo argues that its obligation to send Wigod a permanent Modification Agreement was triggered only if and when it actually sent Wigod a Modification Agreement.
Wells Fargo’s proposed reading of section 2 would nullify other express provisions of the TPP Agreement. Specifically, it would nullify Wells Fargo’s obligation to “send [Wigod] a Modification Agreement” if she “compl[ied] with the requirements” of the TPP and if her “representations . . . continue to be true in all material respects.” TPP § 3. Under Wells Fargo’s theory, it could simply refuse to send the Modification Agreement for any reason whatsoever — interest rates went up, the
22 No. 11-1423
The more natural interpretation is to read the provision as saying that no permanent modification existed “unless and until” Wigod (i) met all conditions, (ii) Wells Fargo executed the Modification Agreement, and (iii) the effective modification date passed. Before these conditions were met, the loan documents remained unmodified and in force, but under paragraph 1 and section 3 of the TPP,
This interpretation follows from the plain and ordinary meaning of the contract language stating that “the Plan is not a modification . . . unless and until” the conditions precedent were fulfilled. TPP § 2.G.
See McHenry Savings Bank v. Autoworks of Wauconda, Inc., 924 N.E.2d 1197, 1205 (Ill. App. 2010) (“If possible we must interpret a contract in a manner that gives effect to all of the contract’s provisions.”), citing Bank of America Nat’l Trust & Savings Ass’n v. Schulson, 714 N.E.2d 20, 24 (Ill. App. 1999). Once Wells Fargo signed the TPP Agreement and returned it to Wigod, an objectively reasonable person would construe it as an offer
No. 11-1423 Page 23
to provide a permanent modification agreement if she fulfilled its conditions.
2. Consideration
Under Illinois law, “consideration consists of some detriment to the offeror, some benefit to the offeree, or some bargained-for exchange between them.” Dumas v. Infinity Broadcasting Corp., 416 F.3d 671, 679 n.9 (7th Cir. 2005), quoting Doyle v. Holy Cross Hospital, 708 N.E.2d 1140, 1145 (Ill. 1999). “If a debtor does something more or different in character from that which it was legally bound to do, it will constitute consideration for the promise.” 3 Williston on Contracts, § 7:27. Here the TPP contained sufficient consideration because, under its terms, Wigod (the promisee) incurred cognizable legal detriments. By signing it, Wigod agreed to open new escrow accounts, to undergo credit counseling (if asked), and to provide and vouch for the truth of her financial information. Wigod’s complaint alleges that she did more than simply agree to pay a discounted amount in satisfaction of a prior debt. In exchange for Wells Fargo’s conditional promise to modify her home mortgage, she undertook multiple obligations above and beyond her existing legal duty to make mortgage payments.
See, e.g., In re Bank of America Home Affordable Modification Program (HAMP) Contract Litigation, No. 10-md-02193-RWZ, 2011 WL 2637222, at *4 (D. Mass. July 6, 2011) (multi-district litigation) (“The requirements
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Footnore 7: The TPP stated that its monthly payment schedule “is an estimate of the payment that will be required under the modified loan terms, which will be finalized in accordance with Section 3 below.” TPP § 2. Section 3 provided: “I understand that once Lender is able to determine the final amounts of unpaid interest and any other delinquent amounts . . . and after deducting . . . any remaining money held at the end of the Trial Period . . . the Lender will determine the new payment amount.” TPP § 3.
of the TPP all constitute new legal detriments.”); Ansanelli v. JP Morgan Chase Bank, N.A., No. C 10-03892 WHA, 2011 WL 1134451, at *4 (N.D. Cal. Mar. 28, 2011) (same).
3. Definite and Certain Terms
.
Academy Chicago Publishers v. Cheever, 578 N.E.2d 981, 983 (Ill. 1991). “A contract may be enforced even though some contract terms may be missing or left to be agreed upon, but if the essential terms are so uncertain that there is no basis for deciding whether the agreement has been kept or broken, there is no contract.” Id. at 984. Wells Fargo contends that the TPP is unenforceable because it did not specify the exact terms of the permanent loan modification, including the interest rate, the principal balance, loan duration, and the total monthly payment.7 Because the TPP allowed the lender to determine the precise contours of the permanentmodification at a later date, Wells Fargo argues,
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it reflected no “meeting of the minds” as to the permanent modification’s essential terms, so that it was an unenforceable “agreement to agree.”
In order for such a contract to be enforceable, however, it is necessary that the terms to be agreed upon in the future can be determined “independent of a party’s mere ‘wish, will, and desire’ . . ., either by virtue of the agreement itself or by commercial practice or other usage or custom.” United States v. Orr Construction Co., 560 F.2d 765, 769 (7th Cir. 1977), quoting 1 Arthur Linton Corbin, Corbin on Contracts § 95, at 402 (1960 ed.) (hereinafter “Corbin on Contracts (1960 ed.)”) (internal quotation marks omitted). Professor Corbin’s treatise continues: “This may be the case, even though the determination is left to one of the contracting parties, if he is required to make it ‘in good faith’ in accordance with some existing standard or with facts capable of objective proof.” 1 Corbin on Contracts § 95, at 402 (1960 ed.).
In this case, HAMP guidelines provided precisely this “existing standard” by which the ultimate terms of
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Wells Fargo, of course, has not offered Wigod any permanent modification, let alone one that is consistent with HAMP program guidelines. Thus, even without
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reference to the HAMP modification rules, Wigod’s complaint alleges that Wells Fargo breached its promise to provide her with a permanent modification once she fulfilled the TPP’s conditions.
.
See Corbin on Contracts § 4.1, at 532 (rev. ed.) (“Where the parties intend to contract but defer agreement on certain essential terms until later, the gap can be cured if one of the parties offers to accept any reasonable proposal that the other may make. The other’s failure to make any proposal is a clear indication that the missing term is not the cause of the contract failure.”). We must assume at the pleadings stage that Wigod met each of the TPP’s conditions, and it is undisputed that Wells Fargo offered no permanent modification at all. The terms of the TPP are clear and definite enough to support Wigod’s breach of contract theory. Accord, e.g., Belyea v. Litton Loan Servicing, LLP, No. 10-10931-DJC, 2011 WL 2884964, at *8 (D. Mass. July 15, 2011) (“At a minimum, then, the TPP
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B. Promissory Estoppel
Wigod also asserts a claim for promissory estoppel, which is an alternative means of obtaining contractual relief under Illinois law. See Prentice v. UDC Advisory Services, Inc., 648 N.E.2d 146, 150 (Ill. App. 1995), citing Quake Construction, Inc. v. American Airlines, Inc., 565 N.E.2d 990 (Ill. 1990).
” Dumas v. Infinity Broadcasting Corp., 416 F.3d 671, 677 (7th Cir. 2005), citing Bank of Marion v. Robert “Chick” Fritz, Inc., 311 N.E.2d 138 (Ill. 1974).
Wigod has adequately alleged her claim of promissory estoppel. She asserts that Wells Fargo made an unambiguous promise that if she made timely payments and accurate representations during the trial period, she would receive an offer for a permanent loan modifica-
No. 11-1423 Page 29
Footnote 8: Because Wigod has successfully pled a breach of contract claim, including consideration, at this stage of the litigation there is “no gap in the remedial system for promissory estoppel to fill.” Dumas, 416 F.3d at 677, quoting All-Tech Telecom Inc. v. Amway Corp., 174 F.3d 862, 869 (7th Cir. 1999). One or more of Wells Fargo’s contract defenses may remain in dispute for the remainder of the litigation. For this reason, Wigod may preserve her promissory estoppel claim as an alternative in the event the district court or a jury later concludes as a factual matter that an enforceable contract did not exist.
tion calculated using the required HAMP methodology.
See Wood v. Mid-Valley Inc., 942 F.2d 425, 428 (7th Cir. 1991) (noting that a “foregone . . . opportunity” would be “reliance enough to support a claim of promissory estoppel”) (applying Indiana law). Wigod’s complaint therefore alleged a sufficiently clear promise, evidence of her own reliance, and an explanation of the injury that resulted. She also contends that Wells Fargo ought to have anticipated her compliance with the terms of its promise. This was enough to present a facially plausible claim of promissory estoppel. 8
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Footnote 9: The Treasury directives require servicers to have “adequate staffing, resources, and facilities for receiving and processing HAMP documents” and to “ensure that . . . inquiries and complaints are provided fair consideration, and timely and appropriate responses and resolution.” Supplemental Directive 09-01. Additionally, in the Servicer Participation Agreement it executed with the government, Wells Fargo agreed to “use qualified individuals with suitable training, education, experience and skills to perform the services.”
C. Negligent Hiring and Supervision
See Moorman Manufacturing Co. v. Nat’l Tank Co., 435 N.E.2d 443, 448-49 (Ill. 1982). The Moorman doctrine precludes liability for negligent hiring and supervision in cases where, in the course of performing a contract between the defendant and the
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plaintiff, the defendant’s employees negligently cause the plaintiff to suffer some purely economic form of harm. See, e.g., Freedom Mortg. Corp. v. Burnham Mortg., Inc., 720 F. Supp. 2d 978, 1002 (N.D. Ill. 2010) (plaintiff’s “negligent retention and supervision claims violate Moorman because they relate to [its] contractual and commercial relationship” with defendant); Soranno v. New York Life Ins. Co., No. 96 C 7882, 1999 WL 104403, at *16 (N.D. Ill. Feb. 24, 1999) (Plaintiffs’ negligent supervision claims “cannot survive Moorman to the extent that they relate to . . . [the] actions [of the defendant’s agent] in selling the insurance contracts and annuities [to plaintiffs]. Those acts — and the related duty to supervise them — appear to have arisen under the contract.”); Johnson Products Co. v. Guardsmark, Inc., No. 97 C 6406, 1998 WL 102687, at *8 (N.D. Ill. Feb. 27, 1998) (economic loss doctrine barred negligent hiring and
supervision claims against security firm whose guards stole from the plaintiff because no Illinois case law imposed “specific duties upon providers of security services to employ honest personnel and to use reasonable care to supervise them”).
There are a number of exceptions to the Moorman doctrine, each rooted in the general rule that “[w]here a duty arises outside of the contract, the economic loss doctrine does not prohibit recovery in tort for the negligent breach of that duty.” Congregation of the Passion, Holy Cross Province v. Touche Ross & Co., 636 N.E.2d 503, 514 (Ill. 1994). To determine whether the Moorman doctrine bars tort claims, the key question is whether the defendant’s duty arose by operation of
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contract or existed independent of the contract. See Catalan v. GMAC Mortg. Corp., 629 F.3d 676, 693 (7th Cir. 2011) (“These exceptions [to the economic loss doctrine] have in common the existence of an extra-contractual duty between the parties, giving rise to a cause of action in tort separate from one based on the contract itself.”); 2314 Lincoln Park West Condominium Ass’n v. Mann, Gin, Ebel & Frazier, Ltd., 555 N.E.2d 346, 351 (Ill. 1990) (“the concept of duty is at the heart of distinction drawn by the economic loss rule”). If, for example, an architect bungles a construction design, the Moorman doctrine bars the aggrieved owner’s suit for negligence. See id. The shoddy workmanship is a breach of the design contract rather than a failure to observe some independent duty of care owed to the world at large.
To the extent Wells Fargo had a duty to service Wigod’s home loan responsibly and with competentpersonnel, that duty emerged solely out of its contractual obligations. As we recently noted, a mortgage contract itself “cannot give rise to an extra-contractual duty without some showing of a fiduciary relationship between the parties,” and no such relationship existed here. Catalan, 629 F.3d at 693 (applying Moorman doctrine). Although Wigod has a legally viable claim that the TPP Agreement bound Wells Fargo to offer her a permanent modification, Wells Fargo owed her no independent duty to employ qualified people and to supervise them appropriately in servicing her home loan. Cf. Johnson Products Co., 1998 WL 102687, at *9 (“The manufacturer of a defective product that simply does not work properly does not owe a duty in tort to the purchaser of
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the product to use reasonable care in producing the product. Rather, the purchaser’s remedy lies in breach
of contract or breach of warranty. . . . [Defendant] had no obligation to use reasonable care in performing
its duties, for its only obligations arose under the contract itself.”). Wigod’s rights here are contractual in nature. If Wells Fargo failed to honor their agreement — whether by hiring incompetents or simply through bald refusals to perform — contract law provides her remedies.
Wigod argues that the Moorman doctrine does not bar her negligent hiring and supervision claims because she seeks equitable relief and therefore her asserted harm goes beyond pure economic injury. But this theory assumes that there is some necessary connection between the nature of the loss alleged and the appropriate form of relief. This is not so. Purely economic losses may sometimes be best remedied through injunctive relief — when, for instance, specific performance of a contract is required to make the plaintiff whole, or when the risk of under-compensation is very high. See Anthony T. Kronman, Specific Performance, 45 U. Chi. L. Rev. 351, 362 (1978) (theorizing that specific performance is awarded where a court “cannot obtain, at reasonable cost, enough information about substitutes to permit it to calculate an award of money damages without imposing an unacceptably high risk of under compensation on the injured promisee”). Conversely, it is routine for tort plaintiffs who have incurred non-economic losses (such as physical injury) to seek and receive monetary damages. Wigod has suffered no injury to person
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or property. The harm she alleges is that Wells Fargo did not restructure the terms of her mortgage and thereby caused her to default. This is a purely economic injury if ever we saw one. Wigod’s claim for negligent hiring and supervision was properly dismissed.
D. Fraud Claims
Illinois courts expressly recognize an exception to the Moorman doctrine “where the plaintiff’s damages are proximately caused by a defendant’s intentional, false representation, i.e., fraud.” Catalan, 629 F.3d at 693, quoting First Midwest Bank, N.A. v. Stewart Title Guaranty Co., 843 N.E.2d 327, 333 (Ill. 2006); see also Stein v. D’Amico, No. 86 C 9099, 1987 WL 4934, at *3 (N.D. Ill. June 5, 1987) (applying fraud exception to Moorman doctrine for claim of fraudulent concealment). Because of this exception, the economic loss doctrine does not bar Wigod’s claim for fraudulent misrepresentation. She has adequately pled the elements of fraudulent misrepresentation but not fraudulent concealment.
1. Fraudulent Misrepresentation
The elements of a claim of fraudulent misrepresentation in Illinois are:
(1) [a] false statement of material fact (2) known or believed to be false by the party making it; (3) intent to induce the other party to act; (4) action by the other party in reliance on the truth of the statement; and
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(5) damage to the other party resulting from that reliance. Dloogatch v. Brincat, 920 N.E.2d 1161, 1166 (Ill. App. 2009), quoting Soules v. General Motors Corp., 402 N.E.2d 599, 601 (Ill. 1980). Under the heightened federal pleading standard of Rule 9(b) of the Federal Rules of Civil Procedure, a plaintiff “alleging fraud . . . must state with particularity the circumstances constituting fraud.” See Borsellino v. Goldman Sachs Group, Inc., 477 F.3d 502, 507 (7th Cir. 2007) (“This heightened pleading requirement is a response to the great harm to the reputation of a business firm or other enterprise a fraud claim can do.”) (internal quotation marks omitted). We have summarized the particularity requirement as calling for the first paragraph of any newspaper story: “the who, what, when, where, and how.” E.g., Windy City Metal Fabricators & Supply, Inc. v. CIT Technology Financing Services, Inc., 536 F.3d 663, 668 (7th Cir. 2008).
Wigod’s complaint satisfies that standard. She identifies the knowing misrepresentation as Wells Fargo’s statement in the TPP that it would offer her a permanent modification if she complied with the terms and conditions of the TPP. She also alleges that Wells Fargo intended that she would act in reliance on promises it made in the TPP and that she reasonably did so to her detriment. Fraudulent intent may be alleged generally, see Fed. R. Civ. P. 9(b), so the only element seriously at issue on the pleadings is reasonable reliance. The district court held that “Wigod could not reasonably have relied on” the TPP’s promise of a
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permanent modification because this “would have required her to ignore the remainder of the contract which required her to meet all of HAMP’s requirements.” We disagree. Under Illinois law, justifiable reliance exists when it was “reasonable for plaintiff to accept defendant’s statements without an independent inquiry or investigation.” InQuote Corp. v. Cole, No. 99-cv-6232, 2000 WL 1222211, at *3 (N.D. Ill. Aug. 24, 2000); see Teamsters Local 282 Pension Trust Fund v. Angelos, 839 F.2d 366, 371 (7th Cir. 1988) (“the crucial question is whether the plaintiff’s conduct was so unreasonable under the circumstances and ‘in light of the information open to him, that the law may properly say that this loss is his own responsibility’ ”), quoting Chicago Title & Trust Co. v. First Arlington Nat’l Bank, 454 N.E.2d 723, 729 (Ill. App. 1983). As explained above, the TPP as a whole supports Wigod’s reading of it to require Wells Fargo to offer her a permanent modification once it determined she was qualified and sent her an executed copy, and she satisfied the conditions precedent. Based on the pleadings, we cannot say that her alleged reliance on Wells Fargo’s promise was objectively unreasonable.
Wigod’s fraudulent misrepresentation claim at first seems vulnerable on other grounds, however, since it represents a claim of promissory fraud — that is, a “false statement of intent regarding future conduct,” as opposed to a false statement of existing or past fact. Association Benefit Services, Inc., 493 F.3d at 853. Promissory fraud is “generally not actionable” in Illinois “unless the plaintiff also proves that the act was a part of a scheme to defraud.” Id., citing Bradley Real Estate Trust v. Dolan
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