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Parker v. EMC Mortgage Corp.

United States District Court, Northern District of Illinois, Eastern Division

December 18, 2014

KIM PARKER, Plaintiff,



Before the Court are two motions by Plaintiff Kim Parker: Plaintiff’s Motion for Leave to File Amended and Supplemental Pleading (“Motion to Amend”) (Dkt. No. 149) and Plaintiff’s Motion Pursuant to Fed. R. Civ. Pro. 56(d) (“Rule 56(d) Motion”) (Dkt. No. 144). For the reasons set forth below, the Motion to Amend is granted and the Rule 56(d) Motion is granted in part and denied in part.


Parker originally filed this action in the Circuit Court of Cook County in August 2009. In August 2011, she filed an amended complaint styled as a class action (“Amended Complaint”).[1]The Amended Complaint named as defendants EMC Mortgage Corporation (“EMC”), which serviced Parker’s home mortgage loans, and EMC’s parent company, JPMorgan Chase Bank, N.A. (“JPMC, ” and together with EMC, “Defendants”) (Am. Compl. ¶¶ 12-13, Dkt. No. 13.) In her Amended Complaint, Parker alleges that on September 29, 2008, she entered into a Repayment Agreement (“Agreement”), in which EMC agreed to refrain from pursuing its remedies for Parker’s default on her home mortgage loans and, in return, Parker agreed to pay her arrearage by making an initial down payment and six subsequent monthly payments. (Id. ¶¶ 68, 70.) Parker further alleges that even though she satisfied her obligations under the Agreement by making timely payments, Defendants did not consider her for a permanent modification and thus breached the Agreement. (Id. ¶ 72.) Parker also claims that Defendants engaged in other misconduct in connection with her loan file, including violating the requirements of the federal Home Affordable Modification Program (“HAMP”), which “provides eligible homeowners the opportunity to modify their mortgages to make them more affordable.” (Id. at ¶ 27.) Based on these allegations, the Amended Complaint alleges a number of causes of action on behalf of the putative class, including a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/2 (“ICFA”); two claims based on breach of contract/breach of the duty of good faith and fair dealing, one of which was based on a third-party beneficiary theory; a claim for promissory estoppel; and a claim for unjust enrichment.

Defendants removed the case to this Court on August 19, 2011 pursuant to 28 U.S.C. § 1332(d) and the Class Action Fairness Act of 2005. Subsequently, Defendants moved to dismiss the Amended Complaint. After the parties completed briefing, the Court entered an order granting Defendants’ motion in part and denying it in part. (Dkt. No. 39.) In the ruling, the Court found that the Agreement made no reference to a permanent loan modification, and thus dismissed Parker’s claims for breach of contract and breach of the duty of good faith and fair dealing. (Id. at 1.) The Court also dismissed Parker’s claims based on the third-party beneficiary theory. (Id. at 1-2.) With respect to the other causes of action, the Court held:

To the extent that Plaintiff’s claims for promissory estoppel and unjust enrichment are based upon the Agreement, those claims are dismissed. See Sharrow Grp. v. Zausa Dev. Com., No. 04 C 6379, 2004 WL 2806193, at *3 (N.D. Ill.Dec.6, 2004) (“Under Illinois law, promissory estoppel and unjust enrichment are unavailable where the parties have entered into an express contract.”). However, to the extent that Plaintiff’s claims rely on alleged oral representations regarding a permanent loan modification, made after the Agreement ended, the Court finds Plaintiff’s allegations sufficient to satisfy Twombly and its progeny. Likewise, Plaintiff’s allegations are sufficient to state a claim under the ICFA. See Wigod [v. Wells Fargo Bank, N.A.], 673 F.3d [547, ] 575 [7th Cir. 2012] (“It is enough to allege that the defendant committed a deceptive or unfair act and intended that the plaintiff rely on that act.”).

(Id. at 2.) The Court later denied class certification, and the case continued as a single-plaintiff action.

After the parties had completed fact discovery, [2] Defendants filed a Motion for Summary Judgment citing several admissions by Parker at her deposition that Defendants claim establish that she never received any oral representation that she would get a permanent loan modification.

For example, Parker testified as follows:

Q. At any time after April 6, 2009 when you had these conversations with Chase, did anyone at Chase promise you that you would receive a permanent modification of your loan?
A. Promise me. They told me that they would consider me for any government programs that I qualified for under the program guidelines.
Q. So you were never promised a permanent modification?
A. I don’t know how I could be promised a permanent modification and my loan ...

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