The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer
MEMORANDUM OPINION AND ORDER
A home equity line of credit ("HELOC") is a revolving line of credit secured by a holder's primary residence. In this class action, eight individuals to whom Defendant had extended HELOCs charge Defendant with having reduced or suspended those HELOCs without a permissible reason for doing so, thus violating the Federal Truth-in-Lending Act, 15 U.S.C. § 1601 et seq, and its implementing regulation, Regulation Z, 12 C.F.R. 226. Plaintiffs also allege that Defendant's suspension or reduction of their HELOCs, and the manner in which those reductions or suspensions were carried out, constitute breach of contract, breach of the impliedcovenant of good faith and fair dealing, unjust enrichment, and violations of California, Illinois, and Minnesota consumer protection laws. This action comes to the court after having been consolidated by the United States Judicial Panel on Multidistrict Litigation. Defendant moves to dismiss the Complaint in its entirety, arguing that federal law and relevant contractual provisions permit Defendant to reduce or suspend Plaintiffs' HELOCs. Defendant challenges Plaintiffs' claims on a host of other grounds as well.
For the reasons explained here, the court concludes that Plaintiffs have adequately pleaded a violation of TILA and Regulation Z by alleging that Defendant suspended or reduced HELOCs in the absence of a significant decline in the value of the property securing the HELOC. Defendant is correct that the failure to consider present available equity, the use of "automated valuation models," the use of "unlawful triggering events," and reduction or suspension absent a "sound factual basis" are not independent bases for relief. Those practices are, however, relevant in considering whether Defendant reduced or suspended HELOCs even though the properties securing them suffered no significant decline in value. The court is also satisfied that Plaintiffs have adequately pleaded that the HELOCs at issue were obtained primarily for personal, family, or household purposes, as required by TILA. The court declines to dismiss Plaintiffs' claims for declaratory relief, as such relief may be sought as an alternative to the remedies provided for by TILA and Regulation Z. The court concludes, further, that Plaintiffs' allegations that Defendant reduced or suspended their HELOCs without adequate justification are sufficient to state claims for breach of contract under Minnesota, California, Texas and Delaware law. Certain other state law claims survive, as well, including Plaintiffs' unfair conduct claims under the California and Illinois consumer protection laws, and their claim under the Minnesota Deceptive Practices Act.
Plaintiffs William Cavanagh, Robert M. Frank, Maria I. Frank, Shannon
Hackett, Michael Malcolm, Daryl Mayes, Michael Walsh, and Robert
Wilder, have brought a consolidated class action complaint against
Defendant JPMorgan Chase, alleging that the bank reduced or suspended
their home equity lines of credit ("HELOCs") in violation of the
Federal Truth-in-Lending Act, 15 U.S.C. § 1601 et seq, and its
implementing regulation, Regulation Z, 12 C.F.R. 226.*fn1
(Compl. ¶¶1, 2.) Plaintiffs also allege breach of contract,
breach of the implied covenant of good faith and fair dealing, unjust
enrichment, and violations of California, Illinois, and Minnesota
consumer protection laws. (Id.)
HELOCs, as noted, are revolving lines of credit used by consumers for significant expenditures including education, home improvements, medical bills, and debt consolidation. (Id. ¶ 3.) Because HELOCs are secured by the borrower's primary residence (meaning default can result in foreclosure), lenders base the amount of a HELOC, in part, on the level of equity in the home. (Id. ¶ 4.) The HELOC agreements entered into between Plaintiffs and Defendant*fn2 allow Plaintiffs to utilize a HELOC in exchange for an annual fee payable for each one-year "draw period." (Id. ¶ 5.) Under the terms of the agreement, Defendant is permitted to reduce or suspend the HELOC in the event that "[t]he value of the Property declines significantly below the value as determined by us at the time you applied for your" HELOC.*fn3 (Id. ¶ 6; Group Ex. A at 14.) See also 15 U.S.C. § 1647(c)(2)(B) (Truth in Lending Act provision allowing HELOC reduction when the value of the property "is significantly less than the original appraisal value of the dwelling"); 12 C.F.R. § 226.5b(f)(3)(vi)(A) (TILA implementing regulation, Regulation Z, explaining that a reduction is permitted when the value of the property "declines significantly below the dwelling's appraised value"). In order to determine whether a significant decline in value warranting HELOC reduction or suspension had occurred, Defendant used "automated valuation models" ("AVMs"), which, Plaintiffs allege, unreasonably undervalued homes and lacked validation mechanisms necessary to ensure accuracy. (Compl. ¶¶ 10, 11.)
At the time it suspended or reduced a HELOC, Defendant sent the borrower a two-page form letter explaining, first, that home values throughout the nation were falling*fn4 and, second, that Defendant's estimate ofthe individual Plaintiff's particular property value"no longer supports the full amount of [the] credit line." (Id. ¶ 15; see also Group Ex. B.) In several cases, the letters were sent the day after or the day before the account's reduction or suspension; in other cases, the letters are not dated, or the dates do not appear in the copies submitted to the court. (See Group Ex. B at 4, 10.) In most cases, the letters did not contain any additional information, such as the estimated decrease in the value of the property, or an explanation of how that decrease was determined. (Id. ¶ 16.) The letters explained that in order to request reinstatement of the HELOC, the customer must order and pay for an appraisal to be conducted by an appraiser chosen by Defendant. (Id. ¶ 18.) Plaintiffs contend that these notices did not disclose Defendant's valuation of the property at the time of the HELOC origination, nor provide any other information that would assist the consumer in determining whether or not to appeal the action and request reinstatement. (Id. ¶ 19.) Plaintiffs allege, further, that those borrowers whose HELOCs were suspended nevertheless continued to be charged an annual fee and did not receive a refund of their annual fee for any portion of the draw period during which the HELOC remained suspended. (Id. ¶ 22.) Individual Plaintiffs' Allegations
Although Plaintiffs' factual circumstances are not identical, all allege unwarranted reductions in their lines of credit, as follows:
* Plaintiff William Cavanagh entered into a HELOC agreement in February 2008 for a $400,000 line of credit secured by a mortgage on his primary residence in Edina, Minnesota. (Id. ¶¶ 23, 36.) At the time of origination, Cavanagh's property was valued by Chase at $950,000, and he had $650,000 in available equity (the precise method by which Chase arrived at this original valuation is not specified). (Id. ¶ 36.) In January 2009, Cavanagh received a letter from Defendant announcing that future draws on his HELOC would be suspended effective January 10, and that his home's value had been estimated using a "proven valuation method" at $736,290. (Id. ¶ 37.) Cavanagh hired an appraiser, who determined that his home value had actually increased to $1.1 million, and several weeks later Defendant reinstated Cavanagh's HELOC. (Id. ¶¶ 38, 39.) The suspension caused Cavanagh to lose access to the HELOC, his primary line of credit, for several months, and increased his credit utilization rate, potentially damaging his credit score and increasing his credit costs. (Id. ¶¶ 40, 41.)
* Robert M. and Maria I. Frank entered into a HELOC agreement with Washington Mutual in April 2003 for a $100,000 line of credit secured by their home in Auburn, California. (Id. ¶ 24, 42.) The home was valued at $389,000 at the time of origination, and by April 2009, the Franks had paid down their mortgage from $177,000 to $122,000. (Id.) On April 16, 2009, Defendant reduced the Franks' HELOC from $100,000 to $13,100 based on an estimated decrease in their property value. (Id. ¶ 43.) Defendant estimated the value of the home at $345,600, which, coupled with the mortgage payments made to that date, Plaintiffs assert, actually reflected an increase in the available equity in the property from $112,000 to $123,600. (Id. ¶ 47.)
* Shannon Hackett entered into a HELOC agreement with Chase in May 2004 for a $100,000 line of credit secured by Hackett's home in Evanston, Illinois, which was valued at $445,000 by Defendant's "automated valuation model." (Id. ¶ 50.) Hackett's $283,125 balance on her first mortgage left unencumbered equity, after accounting for the HELOC, of $61,857. (Id. ¶ 51.) Defendant reduced Hackett's HELOC from $100,000 to $57,000 in December 2008 after determining her home value had declined to $400,000; Hackett alleges she did not learn about this HELOC reduction until February 2010, when she began inquiring into a later HELOC suspension. (Id. ¶ 52.) Specifically, on November 5, 2009, Hackett received a letter from Defendant announcing that the HELOC had been suspended because the property value had declined to $358,000. (Id. ¶ 53.) Hackett paid for an appraisal of the property, which took place on November 9, 2009, and resulted in a valuation of $400,000. (Id. ¶ 55.) She requested reinstatement of the HELOC on December 9, 2009. (Id.) Defendant refused to reinstate the HELOC, contending that the value of Hackett's home was insufficient to support any line of credit. (Id. ¶¶56, 57.) Plaintiffs acknowledge that the amount of available equity in Hackett's home in 2009 had decreased to $41,540, but they allege that this decrease was just 32.8 percent from that available at the time of the HELOC origination, which they argue is not a "significant decline" for purposes of Section I and III, TILA, and Regulation Z. (Id. ¶¶ 60-62.)
* Michael Malcolm entered into a HELOC agreement in March 2006 for a $122,000 line of credit secured by his $1 million Mountain View, California home. (Id. ¶¶ 26, 65.) Defendant suspended Malcolm's HELOC on August 7, 2009, based on a "proven valuation method" that put the home's value at $826,000 (no other details of this valuation were provided). (Id. ¶ 66.) Malcolm paid for an appraisal (the date on which it was conducted is not specified), which showed that his property value had actually increased to $1.07 million. (Id. ¶¶ 68, 69.) Defendant reinstated Malcolm's line of credit after he filed his original lawsuit. (Id. ¶ 69.)
* Daryl Mayes entered into a HELOC agreement with Washington Mutual in November 2006 for a $17,000 line of credit secured by his $172,000 home in Arlington, Texas. (Id. ¶ 71.) The amount of available equity in Mayes's home at the time of origination was $34,690. (Id. ¶ 72.) Defendant suspended Mayes's HELOC on March 26, 2009. Although it did not specify the property's current valuation or the reduction in value, Defendant explained that "a recent review of your account identified a decline in the value of the property securing your HELOC." (Id. ¶ 73; Group Ex. B at 10.) After numerous phone calls to Defendant, on June 20, 2009, Mayes secured a valuation report from Defendant, in which Defendant valued his property at $151,000. (Compl. ¶ 76.) An appraisal conducted ten days prior to his receipt of notice of the suspension, obtained in connection with a refinancing of Mayes's primary mortgage (also held by Defendant), determined the home's value to be $165,000. (Id. ¶ 77.) Defendant nevertheless refused to reinstate Mayes's HELOC, invoking a new policy that required a loan-to-value ratio of 70 percent; Plaintiff Mayes contends the required ratio was 80 percent at the time of origination. (Id. ¶ 78.) Because Mayes had paid off a portion of his mortgage after the HELOC origination, the available equity in his property had decreased by just 2.2 percent between the HELOC origination and suspension, and, even without considering the additional equity, had decreased by only 20 percent. (Id. ¶¶ 82, 84.)
* Michael Walsh entered into a HELOC agreement with Washington Mutual in August 2003 for a $100,000 line of credit secured by his $490,000 home in Garden Grove, California. (Id. ¶ 87.) Defendant reduced the HELOC from $100,000 to $16,300 effective April 16, 2009. (Id. ¶ 88.) Defendant told Walsh during a May 15, 2009, phone call that it had valued his home at $502,589 at origination, and its value had since fallen to $466,300. (Id. ¶ 91.) Plaintiff alleges that "[d]espite the fact Chase's own AVM purportedly showed the property to be worth $466,300, during that same telephone call the customer service representative notified Walsh, inexplicably, that he would need an appraisal value of $412,353 to reinstate his HELOC--that is, Chase informed Walsh that its own AVM had valued his property at $54,000 more than would be needed to keep his HELOC open." (Id.)
* Robert Wilder entered into a HELOC agreement, similar to those entered into by other Plaintiffs, with Bank One in July 2003 for a $250,000 line of credit secured by Wilder's $900,000 Scottsdale, Arizona home. (Id. ¶ 94.) Defendant suspended Wilder's HELOC effective April 17, 2009, based on a valuation of $811,800. (Id. ¶ 95.) Wilder obtained an appraisal, which he forwarded to Defendant in June 2009, that showed his property value had increased to $970,000. (Id. ¶ 101.) Defendant reinstated his HELOC after he filed this lawsuit (the precise date is not specified). (Id.)
Plaintiffs sought centralization of their various cases pursuant to 28 U.S.C. § 1407(a), which allows for "coordinated or consolidated pretrial proceedings . . . when civil actions involving one or more common questions of fact are pending in different districts." The United States Judicial Panel on Multidistrict Litigation granted Plaintiffs' request on June 7, 2010. In re: JPMorgan Chase Bank Home Equity Line of Credit Litigation, 716 F. Supp. 2d 1363 (U.S. Jud. Pan. Mult. Lit. 2010). The panel noted that the common factual allegations included that Defendant "improperly suspended or reduced plaintiffs' respective home equity line of credit accounts and, relatedly, used inappropriate automated valuation models in assessing the value of the underlying properties." Id.
Defendant has moved to dismiss the complaint for failure to state a claim for relief. FED. R. CIV. P. 12(b)(6). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009). In evaluating a motion to dismiss, the court accepts Plaintiffs' well-pleaded factual allegations as true, and draws reasonable inferences in Plaintiffs' favor. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).
I. Violations of TILA and Regulation Z
Congress enacted the Truth in Lending Act to enhance "economic stabilization" and competition in the consumer credit industry through the "informed use of credit." 15 U.S.C. § 1601. TILA's stated purpose is "to assure a meaningful disclosure of credit terms so that the consumer will be able to compare . . . the various credit terms available to him and avoid the uninformed use of credit, and to protect the consumer against inaccurate and unfair credit billing. . . ." Id. As relevant to this case, the Act also regulates HELOCs, permitting lenders to alter them only under certain circumstances.
Plaintiffs allege that Defendant violated TILA and its implementing regulation, Regulation Z, in four different respects: (1) suspending and reducing HELOCs in the absence of a significant decline in the value of the property securing the HELOC, and failing to reinstate such HELOCs when appropriate (Compl. ¶¶ 113-15); (2) using inaccurate and unreliable methods to value Plaintiffs' homes (Id. ¶¶ 116-20); (3) failing to consider the amount of available equity in Plaintiffs' homes before concluding their home values had declined significantly for TILA and Regulation Z purposes (Id. ¶ 121); and (4) using unlawful triggering events in deciding to suspend or reduce HELOCs. (Id. ¶¶ 122-26.) The court examines each in turn.
A. Reduction or Suspension of HELOCs Absent Significant Decline
Plaintiffs' central claim is that their HELOCs were reduced or suspended in the absence of a significant decline in the value of their properties, a practice prohibited by TILA and Regulation
Z. TILA explains that a HELOC may be reduced "during any period in which the value of the consumer's principal dwelling which secures any outstanding balance is significantly less than the original appraisal value of the dwelling." 15 U.S.C. § 1647(c)(2)(B). Regulation Z similarly allows HELOC reduction or suspension if "[t]he value of the dwelling that secures the [HELOC] declines significantly below the dwelling's appraised value . . . ." 12 C.F.R. § 226.5b(f)(3)(vi)(A).
The Federal Reserve Board's Official Commentary to Regulation Z explains that "what constitutes a significant decline . . . will vary according to individual circumstances." 12 C.F.R. Pt. 226, Supp. 1, 5b(f)(3)(vi)-6 ("Official Commentary" or "Commentary"). The Commentary goes on to explain, however, that "if the value of the dwelling declines such that the initial difference between the credit limit and the available equity (based on the property's appraised value for purposes of the plan) is reduced by fifty percent, this constitutes a significant decline." Id. Thus, for example, if a $100,000 home, with a $50,000 first mortgage, secures a HELOC of $30,000, then the difference between the credit limit and available equity is $20,000. If the value of that home decreases by $10,000, the difference between the credit limit and the available equity would decrease by $10,000 as well, from $20,000 to $10,000--a 50 percent reduction, and a "significant decline" for purposes of the statute. Id. The statute and regulation do not explain what steps must be taken prior to suspension. The Act states only that "a creditor [need not] obtain an appraisal before suspending credit privileges . . . [but that] a significant decline must occur before suspension can occur." Id.
Defendant argues that Plaintiffs have not sufficiently alleged that their HELOCs were reduced or suspended in the absence of a significant decline in value, and that their allegations amount to no more than the type of "threadbare recitals" that Iqbal determined were insufficient to survive a motion to dismiss. (Def.'s Br. at 14-15 (quoting Iqbal, 129 S.Ct. at 1940).) According to Defendant, its valuations did, in fact, demonstrate declines in value of between 7 and 23 percent, which, it contends, are significant for purposes of the statute. (Def.'s Br. at 15.) Further, Defendant urges that "[w]hile some Plaintiffs . . . allege that they subsequently obtained appraisals showing their properties' values had recovered to support reinstatement," those circumstances are insufficient to establish a TILA violation. (Id.) In Defendant's view, "[i]f a borrower could allege a TILA violation any time he subsequently obtained an appraisal warranting reinstatement, this would gut the TILA and Regulation Z provisions permitting the lender to suspend the line." (Id. at 15-16.)
The court does not share Defendant's understanding of Plaintiffs' allegations. Plaintiffs have specifically alleged that Defendant suspended or reduced HELOCs based on property-value estimates that were rebutted within close temporal proximity to the valuations Defendant provided. Such a pattern supports an inference that Defendant's valuations are not reliable indicators, or that Plaintiffs' property values did not actually decline to the extent Defendant claimed. The court disagrees, further, with Defendant's assertion that allowing such a claim to survive would "gut" the applicable laws--if such a claim could not be supported with a subsequent or contemporaneous appraisal, it is difficult to see how it could ever be supported.
Notably, numerous courts have declined to dismiss similar complaints where plaintiff offered nothing more than unadorned allegations that a "significant decline" did not occur prior to suspension or reduction of the HELOC. In re Citibank HELOC Litig., No. C-09-0350 MMC, 2010 WL 3447724, at *3 (N.D. Cal. Aug. 30, 2010) (denying motion to dismiss where plaintiff pleaded that there had not been a significant decline, without any additional specifics); Malcolm v. JPMorgan Chase Bank, N.A., No. 09-4496-JF (PVT), 2010 WL 934252, at *3 (N.D. Cal. March 15, 2010) (denying motion to dismiss where appraisal conducted during the same month as the HELOC reduction revealed an increase in the value of the home); Hickman v. Wells Fargo Bank N.A., 683 F. Supp. 2d 779, 785-86 (N.D. Ill. 2010) (St. Eve, J.) (denying motion to dismiss though plaintiff "did not specifically allege any factual support for his allegation that the value of his home did not decline significantly").
Plaintiffs have adequately alleged that their HELOCs were suspended or reduced in the absence of a significant decline in the value of the property securing the HELOC.
B. Consideration of Available Equity
Plaintiffs also allege that Defendant violated TILA and Regulation Z by failing to consider the present available equity*fn5 in the property securing the HELOC before suspension or reduction. Defendant contends that TILA does not require such consideration. (Def.'s Br. at 7.)
As discussed previously, TILA and Regulation Z do not explicitly discuss the issue of present available equity. The Official Commentary does discuss available equity in setting out its "safe harbor" provision.*fn6 The Commentary, however, illustrates that provision without reference to the amount of present available equity. Instead it references the amount of available equity at the HELOC's inception. Defendant also notes that the Commentary explains that the safe harbor requires lenders to consider whether the equity has been reduced to fifty percent of that "initial difference" between the available equity and the credit limit. 12 C.F.R. Pt. 226, Supp. 1, 5b(f)(3)(vi)(A)-6 (emphasis added). This suggests, Defendant urges, that the borrower's equity as of the time of a HELOC suspension is not a factor. That view is bolstered, according to Defendant, by a proposed rule that "clarifies that in determining whether a decline results in a 50 percent equity cushion reduction, the creditor may, but does not have to, consider any changes in available equity based on the status of the first mortgage." Truth in Lending: Proposed Rules, 74 Fed. Reg. 43,428, 43,491 (Aug. 26, 2009).
At least one district court found this argument persuasive. In Raeth v. National City Bank, 755 F. Supp. 2d 899 (W.D. Tenn. 2010), the court concluded that a lender need not consider the amount of present available equity before suspending or reducing a HELOC. Id. at 903-04. That court noted that TILA and Regulation Z do not contain any reference to the "present equity level" (or "present available equity," as this court defines it). The "sole operative variable" the Commentary references, the court noted, is the value of the home. Id. at 904. The court observed, further, that while "[t]he level of equity at origination is essential to the safe harbor because it sets the baseline by which the decline will be judged," the example offered in the Commentary makes "no reference to the present level of equity--it could be unchanged or it could be irrelevant." Id. at 903. Finding the reference to "available equity" ambiguous, the court declined to read into the statute a requirement that the lender consider present available equity. The court also rejected policy arguments in favor of such a requirement. Id. at 904. Specifically, plaintiff in Raeth had argued that reading the statute without the equity requirement would discourage borrowers from paying off their mortgages, and that because the purpose of the statute is to "prevent unfair lending practices" it should be read in favor of consumers. Id. The court determined that requiring consideration of present equity could have the opposite effect: "[M]aking it more difficult for creditors to protect themselves against perceived risk could harm consumers if loans were subsequently made available to consumers only on more onerous terms." Id.
Plaintiffs distinguish Raeth on the ground that in that case, the value of the borrower's property had dropped such that, even considering the present available equity, there was an overall decline within the safe harbor provision. (Response at 12 n.5.) In this case, by contrast, even without considering present available equity, none of the named Plaintiffs' homes fall within the 50 percent safe harbor provision. (Id.) Plaintiffs note, further, that they are not alleging that Defendant's refusal to take account of available equity constitutes an independent claim for relief; instead, "any allegations . . . regarding failure to consider equity . . . are alleged as being demonstrative of unfair and potentially fraudulent practices." (Id.)
In this court's view, present available equity should in fact play some role in a responsible creditor's lending decision-after all, the amount of a HELOC is based on the amount of equity in the home; it makes little sense to suggest that an increase in the amount of that equity will have no bearing on the HELOC. The Raeth court is correct that not allowing lenders to appropriately protect themselves against risk could create incentives to impose more onerous terms on consumers, but that is not an obvious result from a holding that recognizes the relevance of present available equity. In the wake of the economic downturn, Plaintiffs here have seen their HELOCs reduced, allegedly not for legitimate reasons like a decline in home values, but instead mostly to insulate the lender from risk. According to Plaintiffs, Defendant's arbitrary reductions, unrelated to the actual value of the home or the home's equity, contravene TILA's purposes of "economic stabilization" for consumers and informed credit usage and potentially compromise the borrower's credit score.*fn7
While financial institutions must be able to safeguard against risk, TILA and Regulation Z restrict their ability to do so rashly and arbitrarily--by allowing a reduction or suspension only in the event of a "significant decline"--precisely because of the effect such actions have on consumers.
The court need not decide whether Defendant's failure to consider equity increases itself violates TILA, as Plaintiffs' allegations survive regardless. For now, this allegation, as Plaintiffs argue, serves only to illustrate the practices it alleges violate TILA and Regulation Z.
C. Use of Inaccurate and Unreliable Valuation Methods
Plaintiffs also allege that in determining that their properties had suffered significant declines in value, Defendant relied on inaccurate, unreliable, and unreasonable valuation methods. Specifically, Plaintiffs allege that the "automated valuation models" ("AVMs") that Defendant uses are "flawed and inaccurate" and "generat[e] false positives resulting in reductions or suspensions in the absence of the required significant decline in value." (Response at 15.)
Defendant argues that this claim should be dismissed because the law permits a lender to use AVMs in order to estimate home values. Indeed, Regulation Z "does not require a creditor to obtain an appraisal" before suspending a HELOC. 12 C.F.R. Pt. 226, Supp. 1, 5b(f)(3)(vi)-6. Defendant also points to a proposed rule explaining that "appropriate valuation methods may include, but are not limited to" AVMs. Truth in Lending: Proposed Rule, 74 Fed. Reg. 43,428, 43,492 (Aug. 26, 2009). Further, Defendant argues, Plaintiffs' suggestion that Defendant must ensure its AVMs are accurate finds no support in TILA or Regulation Z, neither of which "contains any requirements regarding validating, back-testing or verifying AVM models." (Def.'s Br. at 11.)
Plaintiffs, for their part, concede that the use of AVMs is not "per se improper," and that Defendant's "failure to adequately validate and back-test AVMs, while contrary to the FDIC's recommendations" also do not per se violate the Act. (Response at 15.) Instead, Plaintiffs argue that the use of these AVMs "contributes to, and results in, Chase's unlawful ...