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Davis v. Wells Fargo Bank

February 5, 2010


The opinion of the court was delivered by: Marvin E. Aspen, District Judge


Plaintiff Dorothy Davis alleges that Wells Fargo, N.A. ("Wells Fargo") and Litton Loan Servicing, LP ("Litton")-the current owner and servicer of her mortgage, respectively-have violated the Fair Housing Act ("FHA"). Davis claims that Defendants wrongfully and discriminatorily continue to demand payment on her mortgage despite their knowledge that the initial mortgagee, Mortgage Express, Inc., defrauded her. Presently before us are the parties' cross-motions for summary judgment, as well as a motion to strike filed by Defendants. For the reasons discussed below, we grant Defendants' motions and deny Davis's motion.


On September 23, 1999, Davis executed a mortgage with Mortgage Express, for a home loan in the principal amount of $87,550.00. (Defs.' Facts ¶¶ 1, 7.) Several years later, Davis sued Mortgage Express for violation of the Illinois Consumer Fraud and Deceptive Business Practices Act. (See id. ¶ 11; Pl.'s Facts, Ex. A, Davis v. Mortgage Express, Inc., No. 01-105, slip. op. at 1 (Cir. Ct. Kankakee Cty. Feb. 22, 2007) [hereinafter Fraud Order].) In February 2007, a jury found Mortgage Express liable to Davis for $136,500 plus costs for its fraudulent conduct in the mortgage transaction. (Defs.' Facts ¶ 12; Fraud Order at 1--2.)

In the meantime, Mortgage Express sold the mortgage to The Provident Bank, who then sold it to Wells Fargo in its capacity as trustee for certain asset-backed certificates.*fn2 (Defs.' Facts, Ex. 1, 10/16/09 Ledet Aff., Exs. A, C; id. Ex. 2, 10/21/09 Cohen Aff. ¶¶ 5--6.) Litton began servicing Davis's loan on December 1, 2004.*fn3 (Defs.' Facts ¶ 36.) PCFS Mortgage Resources was the prior loan servicer. (Defs.' Facts, Ex. 1, 10/16/09 Ledet Aff. ¶ 11 & Ex. B.) For their part, neither Wells Fargo, nor Litton, originated Davis's loan or lent her any money.*fn4

(Defs.' Facts ¶¶ 13, 19.)

In 2002, PCFS Mortgage Resources initiated a foreclosure proceeding against Davis, who allegedly had failed to make her monthly payments.*fn5 (Defs.' Facts, Ex. 1, 10/16/09 Ledet Aff. ¶¶ 22--23.) Although Wells Fargo pursued the foreclosure matter after it took over Davis's loan, it was ultimately unsuccessful. (Pl.'s Facts, Ex. G, Wells Fargo v. Davis, No. 02-197, slip op. at 1, 3--4 (Cir. Ct. Kankakee Cty. Feb. 27, 2008) [hereinafter Foreclosure Order].) The Kankakee County court found that Wells Fargo failed to prove its damages and thus, denied the claim. (Foreclosure Order at 3.) The court found that Davis would be entitled to assert affirmative defenses against foreclosure based on her arguments in the fraud case against Mortgage Express. (Id.) The court stressed, however, that it based its ruling only on Wells Fargo's lack of proof and that it made no "determination that the note and mortgage currently held by [Wells Fargo] are totally invalid and unenforceable." (Id. at 4.)

While the foreclosure case was pending, Davis filed this action on May 23, 2007. Davis alleges that Defendants are in violation of the FHA because they attempted to foreclose on her home and continued to demand repayment of the loan and related fees, even though they knew that an Illinois jury had already found these debts to have been based on fraud. (See Pl.'s MSJ Mem. at 2, 7.) Davis contends that Wells Fargo wronged her and, as a remedy, should be required to pay her at least what the Kankakee jury awarded her, as described in the Fraud Order. (Pl.'s MSJ Mem. at 3; see also Pl.'s Facts, Ex. B, Davis Dep. at 18, 26--28.) Davis testified, in short, that she believed that Wells Fargo was responsible for the Kankakee jury award against Mortgage Express and that Wells Fargo would have paid those damages if she was not an "old, black lady." (Pl.'s Facts, Ex. B, Davis Dep. at 27; see id. at 26--28.)


Before addressing the merits of the pending summary judgment motions, we must first resolve Defendants' motion to strike. Defendants ask that we strike four of the affidavits submitted by Davis in support of her motion for summary judgment. (Mot. to Strike at 1.) For the reasons discussed below, we grant this motion in its entirety and strike Davis's Exhibits M through S.

Generally speaking, any supporting affidavit at the summary judgment stage "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated." Fed. R. Civ. P. 56(e)(1). Any documents referred to in an affidavit "must be attached or served with the affidavit." Id. In lieu of sworn affidavits, parties may also submit declarations pursuant to 28 U.S.C. § 1746, which requires the declarant to verify, "under penalty of perjury," that his or her statements are "true and correct." 28 U.S.C. § 1746(2). Statements that fail to comply with these requirements are inadmissible. See Cooper-Schut v. Visteon Auto. Sys., 361 F.3d 421, 429 (7th Cir. 2004) ("A court must not consider... an affidavit that fail[s] to meet the standards of Rule 56(e) when considering summary judgment.").

A. Declarations*fn6 of Geoffrey Smith and Nick Bianchi

Davis submitted a § 1746 declaration from Geoffrey Smith, who is associated with the Woodstock Institute. (Pl.'s Facts, Ex. N, Smith Decl. ¶ 1.) In his declaration, Smith describes a report completed by that organization, entitled "Paying More for the American Dream: A Multi-State Analysis of Higher Cost Home Purchase Lending." (Id. ¶¶ 3--6.) Davis also submitted a declaration from Nick Bianchi, a research analyst for the National Training and Information Center, which coordinates National People's Action. (Pl.'s Facts, Ex. Q, Bianchi Decl. ¶¶ 1--2.)

Bianchi states that National People's Action published a report, "The Truth About Wells Fargo: Racial Disparities in Lending Practices," which examined the residential mortgage lending performance of ...

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