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Lowry v. Wells Fargo Bank, N.A.

United States District Court, N.D. Illinois, Eastern Division

September 2, 2016

BURTON LOWRY and KATHIE LOWRY, Plaintiffs,
v.
WELLS FARGO BANK, N.A., Defendant.

          MEMORANDUM OPINION AND ORDER

          REBECCA R. PALLMEYER, United States District Judge.

         Plaintiffs Burton and Kathie Lowry purchased a home in Antioch, Illinois in July 2004, financing the purchase with a mortgage loan from Defendant Wells Fargo Bank. Burton Lowry lost his job in April 2009, making it difficult for Plaintiffs to maintain their monthly mortgage payments. The Lowrys made multiple calls to the Bank to avoid foreclosure by way of a loan modification or “short sale, ” but Wells Fargo never gave them a definitive response before the Lowrys defaulted and the Bank initiated foreclosure proceedings in October 2009. The Lowrys vacated their home shortly thereafter, a foreclosure judgment was entered in June 2010, and the property sold at a sheriff's sale two months later. That sale was never confirmed, however, and the Bank vacated the foreclosure judgment without explanation in March 2012. That same month, with the Bank's approval, the Lowrys moved back into their home, where they live to this day.

         With the foreclosure vacated, the Lowrys made another attempt to save their home in the summer of 2013. They agreed to resume their mortgage payments-on a trial basis-for the first time since 2009. The Bank assured them that the trial period would lead to a permanent modification with a reduced loan balance. At the close of the trial period, however, the Bank notified Plaintiffs that their loan balance had increased. They declined the Bank's modification offer in October 2013. In the meantime, during the trial payment period, the Lowrys also filed a counterclaim in the Bank's state-court foreclosure action, which was reopened after the Bank vacated the default judgment in March 2012. The Lowrys raised a claim under the Illinois Consumer Fraud and Deceptive Practices Act, 815 ILCS 515/1 et seq. (“ICFA”). Plaintiffs later dismissed the counterclaim and re-filed it, along with two additional state-law claims for fraudulent misrepresentation and fraudulent concealment, as an independent case in this court in May 2015.[1] Defendant moved to dismiss, arguing that Plaintiffs' complaint failed to meet the heightened pleading standard for fraud-based claims under Federal Rule of Civil Procedure 9(b) and that they have also failed to plead an ICFA claim. For the reasons explained below, Defendant's motion [14] is granted in part and denied in part.

         BACKGROUND

         The complaint alleges the following facts, presumed to be true for purposes of this motion. The Lowrys bought their house (the “Property”) in Antioch, Illinois in 2004 and made regular mortgage payments to Wells Fargo until 2009. (Compl. [1] ¶ 34.) That April, Burton, an electrical engineer by trade, lost his job. (Id. ¶ 36.) The Lowrys quickly sought to cut their losses, and listed their home for sale on April 15, 2009. (Id. ¶ 37.) By June they had lowered their asking price from $199, 000 to $179, 000, but still found no buyer. (Id.) In the meantime, the family covered their mortgage payments in May, June, and July 2009 by dipping into savings. (Id. ¶ 39.) They also temporarily relocated to Utah, where they have family connections and where Burton hoped to find temporary employment. (Id. ¶ 38.)

         While in Utah, the Lowrys reached out to Wells Fargo to discuss mitigation options. First, Burton called the Bank to cancel automatic debit payments on June 17, 2009. (Id. ¶ 40.) During that call, he also asked whether Defendant would accept a short sale on the Property. In response, the Bank's representative asked that Plaintiffs fax a listing agreement and a letter authorizing an agent to assist with a potential short sale, which the Lowrys did.[2] (Id.) The Lowrys' second contact with the Bank was a call on July 3, 2009, from Kathie Lowry, requesting a loan modification. (Id. ¶ 42.) Apparently in response to the Lowrys' calls, Wells Fargo sent Plaintiffs a letter-received on July 28, 2009-requesting the family's financial information in order to “determine the best option available to keep the home.” (Id. ¶ 61.) The letter also instructed the Lowrys to call 1-800-416-1472. (Id.) The complaint does not say whether the Lowrys submitted the requested information or called that number.

         On August 17, 2009, Burton again called the Bank. He spoke to someone in the liquidation department-the department responsible for short sales-who gave him a list of documents required before the Bank could authorize a short sale. (Id. ¶ 46.) Plaintiffs faxed those materials to Wells Fargo the same day, including a “Borrower Financial Information Form, ” listing the Lowrys' household income, expenses, and hardships. (Id. ¶ 47.) The Lowrys faxed the Bank a $160, 000 short-sale[3] offer from a prospective buyer the next day, August 18, 2009, along with some of the documents necessary for that offer's approval. (Id. ¶ 49.) They faxed the remaining documents on August 19. On August 20, the Lowrys faxed to the Bank documentation for a second short-sale offer of $137, 500 (Id. ¶ 51), and then followed up on September 2, 2009 to alert the Bank that the prospective buyer had increased the offer to $140, 000. (Id. ¶ 56.) Burton called Defendant on August 20 to discuss the short-sale offers and spoke with “Brandon” in the liquidation department. Brandon informed Burton that the Lowrys were “set up” for a short sale and would be assigned a “negotiator” no later than August 24. (Id. ¶ 52.) The Lowrys received another letter from the Bank on August 21, 2009, stating that the Bank had received their “request for assistance” and that the Bank would give them a final decision in 45-60 days. (Id. ¶ 53.) It is not clear whether this letter was referring to Plaintiffs' short-sale offers or their request for a loan modification.

         The parties next interacted on August 24, 2009. On that day, Burton called the Bank, and “Sandy” in the liquidation department informed him that the Bank had assigned Edward Nornes to be the Lowrys' negotiator. Sandy asked Burton to provide Nornes with several documents, including proof of Plaintiffs' income, which they had already faxed to the Bank one week earlier. (Id. ¶ 54.) According to Sandy, Nornes had ordered an appraisal of the property and would be in touch with the Lowrys within two or three weeks after receiving the appraisal. (Id. ¶ 55.) Sandy predicted that the process would be complete in approximately thirty days. (Id.)

         Plaintiffs never heard from Nornes. Nor did the Bank ever respond to either short-sale offer. (Id. ¶ 57.) The Lowrys did, however, receive another letter from the Bank on or around September 1, 2009, telling them to call 1-877-255-6505. The writer of this letter is not identified in the complaint, but the letter promised that, if the Lowrys provided the loan number and their income information and made an initial payment calculated based on their circumstances, they would “Get an immediate decision and your new affordable mortgage payment.” (Id. ¶ 62.) The Lowrys did not call the number because they were waiting to hear from the Bank regarding their short-sale offers, and because they had already provided the requested information weeks earlier. (Id. ¶ 63.) Plaintiffs never received an answer regarding either their request for a loan modification or their short-sale offers. (Id. ¶ 64.)

         On September 21, 2009, the Lowrys met with a bankruptcy attorney in Utah. (Id. ¶ 58.) They filed Chapter 7 bankruptcy on October 1, 2009, and received a discharge on January 12, 2010. (Id. ¶ 59.) In the interim, Defendant started the foreclosure process against Plaintiffs. In a letter dated October 5, 2009, the Bank advised that the Lowrys' “loan file had been referred to our attorney with instructions to initiate foreclosure proceedings.” (Id. ¶ 65.) By December 21, 2009, the Lowrys, who were still in Utah, “had given up hope of saving their house.” (Id. ¶ 68.) They called the Bank that day to inform Defendant that the property was vacant and the utilities had been shut off. (Id. ¶ 67.)

         The Bank filed a state foreclosure action in Waukegan, Illinois, on February 8, 2010, alleging that the Lowrys owed $187, 721.60 on their loan. (Id. ¶ 71.) The Bank's attorneys signed the court documents using “facsimile signatures” (i.e., “the attorney did not personally sign the document with ink pen.”). (Id. ¶ 72.) The Bank's attorneys also drafted affidavits “utilizing assembly-line methods, and lacking personal knowledge of the Lowrys account.” (Id. ¶ 73.) For instance, Plaintiffs point to the affidavit of Anne Neely, the Bank's Vice President of Loan Documentation. (Id.) Neely's affidavit includes a separate signature page for the notary, “a practice that has since been banned by Illinois Supreme Court Rule 113[4] as indicative of notorial/jurat fraud.” (Id. ¶ 74.) The Nineteenth Judicial Circuit Court in Waukegan, Illinois issued a default judgment in the foreclosure action in June 2010, and the property sold at a sheriff's sale in September of that year. (Id. ¶ 75.) The complaint does not identify the buyer. Wells Fargo never moved to “confirm” the sale, however, and as a result the Lowrys continued to receive “notices of proceedings, ” such as a “Notice of Hearing” that reached them in October 2010. (Id. ¶ 76.)

         Notices continued to arrive in the following months. Confused, Plaintiffs called the Bank's foreclosure counsel, Pierce and Associates (“Pierce”), on April 4, 2011. (Id. ¶ 77.) Someone at the law firm told the Lowrys that the property had “gone to sell” and that the firm was “waiting for an affidavit from Wells Fargo.” (Id.) Later that month, the Lowrys moved back to northern Illinois, where Burton had found a new job. They rented a home for $1200 per month. (Id. ¶ 80.) They continued to receive mailings regarding the Property throughout the remainder of 2011, including letters from the Bank regarding taxes and escrow as well as letters from the Pierce law firm, concerning more “court continuances.” (Id. ¶ 81.) The Lowrys were perplexed by these communications, which “made it appear as if they still owned the house, which they had been told was ‘sold.'” (Id. ¶ 82.) Matters came to a head when, on January 4, 2012, the Lowrys received a notice from the Bank, asking whether the Property was vacant. (Id. ¶ 83.) Not only had Plaintiffs vacated the Property more than two years earlier, but they had advised the Bank at the time and had never suggested they had returned. (Id. ¶ 67.) The Lowrys responded by placing several calls to both Defendant and Pierce on January 20, 2012, seeking to clarify who owned the Property. But Bank representatives gave contradictory answers. On the one hand, a woman at Wells Fargo named “Maria” told the Lowrys that she “did not think they could rescind the sale” and a law firm employee, “Page, ” stated that the Property “went to sale in September 2010, ” and that although “no final approval was being given, . . . Wells Fargo owns it now.” (Id. ¶ 83(b), (f).) On the other hand, “Charlene” at Wells Fargo told them that the Property was “still in [the Lowrys'] name.” (Id. ¶ 83(h).) The Lowrys' final call of the day was to lawyer Nick Blaul at Pierce, who told Plaintiffs that “it is up to Wells Fargo to possibly see if they [the Lowrys] have any options.” (Id. ¶ 83(m).) Blaul nevertheless promised that he would email a “payoff letter” to Burton, but he never did. (Id.)

         Three days later, on January 23, 2012, the Lowrys received another notice from the Circuit Court, this one notifying Plaintiffs that a “case management conference” had been continued from December 2011 to December 2012. (Id. ¶ 84.)[5] Following up on this notice, Plaintiffs called Defendant's foreclosure counsel again on February 27, 2012. During this call, Burton asked whether the family could “just move back in, ” and was told that the Lowrys “had every right to do that.” (Id. ¶ 86.) A Pierce employee also told Burton that Plaintiffs could remain there until thirty days after “all is finalized” with the sale. (Id.) Before returning to the Property, Plaintiffs called Wells Fargo on February 28, 2012. Two different Bank employees told the Lowrys that, contrary to the assurances from the Bank's lawyers, Plaintiffs were not permitted to return to their house in Antioch. (Id. ¶¶ 90-92.) Burton nevertheless called the Bank again the next day and spoke with Kaylee Kinder in Loan Processing Services. Kinder authorized the Lowry's return to the Property and mailed them the keys to the house via overnight mail. (Id. ¶ 93.) The Lowrys moved back in on March 5, 2012. (Id. ¶ 94.)

         Within days of returning to the Property, the Lowrys received notice that Wells Fargo was moving to vacate the foreclosure judgment. (Id.) When Plaintiffs called and asked foreclosure counsel why this was happening, the Lowrys were told “they are vacating because it has taken so long, they would have to start all over on the proceedings.” (Id. ¶ 95.) Plaintiffs allege that the real motivation for the dismissal was regulatory activity stemming from settlements the Bank had reached with the federal government in 2011 and 2012 related to Wells Fargo's foreclosure servicing activities. (Id. ¶ 133.) In any event, the state court vacated the judgment on September 20, 2012. (Id. ¶ 95.)

         In the months that followed, the Lowrys and Wells Fargo renewed their loan-modification discussions while the Lowrys lived in their home without paying rent or mortgage payments. The Bank sent the Lowrys two “virtually identical” letters, one dated October 20, 2012, the other dated November 20, 2012, both asking Plaintiffs if they were “[f]inding it difficult to keep up with [their] mortgage payments?” The October letter instructed the Lowrys to “respond by November 19, 2012, ” and the Lowrys complied, calling Wells Fargo on that date to ask for loan-modification assistance. (Id. ¶¶ 99-100.) The Lowrys faxed the Bank 18 pages of “Mortgage Payment Assistance Documentation” and a “Homeowner Assistance Form, ” which contained information related to their income, expense, and hardship on January 9, 2013. (Id. ¶ 102.)

         They later received two additional letters, both dated January 9, 2013. One acknowledged receipt of the documents the Lowrys had faxed that day, and represented that the Bank would review the materials to determine whether a loan modification was appropriate. The second letter asked the Lowrys to “call [Defendant] immediately” to provide information that was already included in the Lowrys' January 9, 2013 fax. (Id. ¶¶ 103-104.) Plaintiffs allege that these inconsistent letters were computer-generated and neither drafted nor reviewed by a human being. (Id. ¶ 106.)

         Nine days later, the Bank sent another letter, providing the Lowrys with a “single point of contact” for avoiding foreclosure: Brittainni Hill. (Id. ¶ 108.) The Lowrys called Hill on January 23, 2013. (Id. ¶ 109.) Hill asked for additional documents during the call. That same day, Wells Fargo sent four different letters to Plaintiffs. Two of the letters stated that Plaintiffs “may be experiencing financial problems that could result in . . . foreclosure, ” and listed five alternatives: a repayment plan, loan modification, a partial claim, a short sale, and a “deed-in-lieu.” (Id. ¶¶ 110, 112.) A third letter thanked the Lowrys for sending unidentified documents to the Bank and promised them that the Bank would follow up with more information. This letter also included a reminder that “it's important for you to be making your regular mortgage payments until you hear from us.” (Id. ¶ 111.) Finally, Wells Fargo sent a fourth letter under the subject line “Additional documentation needed for your request for mortgage assistance.” (Id. ¶ 115.) This letter stated that the Homeowner Assistance Form the Lowrys had submitted just two weeks prior was no longer used by Defendant. As a result, Plaintiffs would have to resubmit the information on the new Uniform Borrower Assistance Form. (Id.) According to Plaintiffs, the new form allowed for “further automation and lack of meaningful human involvement.” (Id. ¶ 117.) The four letters mailed to the Lowrys on January 23 were followed by yet another letter, this one dated January 24, 2013. It was from Hill, who wrote to “formally introduce” herself. The letter made no mention of the phone conversation between Hill and the Lowrys just one day earlier, nor did it refer to any of the letters sent the previous day. (Id. ¶ 118.) The Lowrys again sent their information to the Bank on February 21, 2013, this time on the Uniform Borrower Assistance Form. (Id. ¶ 120.)

         Four days later, on February 25, 2013, the Bank sent a request for additional information, and the Lowrys submitted those materials on March 27, 2013. (Id. ¶ 121.) The Bank acknowledged receipt in a letter written the next day. (Id. ¶ 122.) On May 14, 2013, Hill wrote to inform Plaintiffs that she was “not able to help [them] find a mortgage assistance solution.” She went on to say that the “normal collection” process would therefore resume. (Id. ¶ 124.) Bizarrely, the Bank sent Plaintiffs another letter that day, this one also signed by Hill, listing alternatives to foreclosure. And the next day, on May 15, 2013, the Bank sent yet another letter, thanking the Lowrys for sending unspecified documentation and reiterating the document request the Bank had initially mailed on January 9, 2013. (Id. ¶ 126.) Burton attempted to follow up with Hill via phone on June 13 and June 17, 2014. (Id. ¶ 131.) He left voicemails, but never received a return call.

         The Plaintiffs' next move was to ask the state court in Waukegan for additional time to respond to the Bank's complaint on June 20, 2013. (Id. ¶ 134.) (It is unclear from the complaint what, if anything, had transpired in state court since the foreclosure judgment was vacated in September 2012 or when the complaint at issue had been filed.) Through counsel, the Lowrys filed an answer and a counterclaim under the ICFA on September 4, 2013. (Id. ¶ 136.) They later voluntarily dismissed the counterclaim and refiled it as part of the complaint in this case. (Id. ¶¶ 137-38.)

         In the interim, the parties made yet another attempt at resolving Plaintiffs' debt. On an unspecified date after June 20, 2013, the Bank asked the Lowrys to reapply for a loan modification. (Id. ¶ 139.) On May 29, 2014, the Bank offered the Lowrys a Trial Period Plan (“TPP”), which would require Plaintiffs to make three trial payments before receiving a permanent modification of their mortgage. (Id. ¶¶ 141, 143.) The Bank assured the Lowrys that any modification would include a reduction in their indebtedness such that they would owe “about the same” amount as when they defaulted (i.e., $187, 721.60). (Id. ¶¶ 71, 140, 144.) Plaintiffs made three payments pursuant to the TPP on July 1, August 1, and September 1, 2014. (Id. ¶ 142.) To their dismay, the permanent modification proposed by the Bank on October 16, 2014 was “far greater than the Lowrys' indebtedness at the time of their default and included all interest accrued.” (Id. ¶ 145.) Plaintiffs declined the proposed modification. Contrary to the Bank's alleged verbal assurances, the TPP Notice-the document the Lowrys signed in order to participate in the TPP-does disclose that “[a]ny difference between the amount of the trial period payments and your regular mortgage payments will be added to the balance of your loan along with any other past due amounts as permitted by your loan documents.” (Id. ¶ 152.) That information appears only in the FAQ section of the document, several pages behind the signature page, but page one of the Notice refers to the FAQ section as one of three attached documents. (Id. ¶ 151.)

         Plaintiffs filed this action in May 2015. Their 57-page, 329-paragraph complaint [1] contains three counts: a claim under the ICFA, a common-law claim for fraudulent misrepresentation, and another common-law claim for fraudulent concealment. The common-law claims are based on statements the Bank made to Plaintiffs regarding their ownership of the property and their foreclosure alternatives.

         DISCUSSION

         Defendant moves to dismiss [14], arguing that “Plaintiffs fail to meet Rule 9(b)'s heightened pleading standard, dooming both fraud-based counts, and fail to allege an ICFA violation or any actual damages as required by the statute.” (Def.'s Mem. [15] at 2.)

         1. Legal standard

         A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not its merits. To survive a Rule 12(b)(6) motion, a complaint must overcome “two easy-to-clear hurdles”: (1) “the complaint must describe the claim in sufficient detail to give the defendant fair notice of what the claim is and the grounds on which it rests”; and (2) “its allegations must plausibly suggest that the plaintiff has the right to relief, raising that possibility above a speculative level.” Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008) (internal quotation marks omitted). For purposes of a motion to dismiss, the court takes all facts alleged by the plaintiff as true and draws all reasonable inferences from those facts in the plaintiff's favor. Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011).

         2. ICFA

         The ICFA “is a regulatory and remedial statute intended to protect consumers, borrowers, and business persons against fraud, unfair methods of competition, and other unfair and deceptive business practices.” Siegel v. Shell Oil Co., 612 F.3d 932, 934 (7th Cir. 2010) (quoting Robinson v. Toyota Motor Credit Corp., 201 Ill.2d 403, 416, 775 N.E.2d 951, 960 (Ill. 2002)). An ICFA claim may be premised on either deceptive or unfair practices. See Robinson, 201 Ill.2d 416, 775 N.E.2d at 960. In either case, the Lowrys must allege that “(1) a deceptive act or unfair practice occurred, (2) the defendant intended for plaintiff to rely on the deception, (3) the deception occurred in the course of conduct involving trade or commerce, (4) the plaintiff sustained actual damages, and (5) such damages were proximately caused by the defendant's deception.” Dubey v. Pub. Storage, Inc., 395 Ill.App.3d 342, 353, 918 N.E.2d 265, 277 (1st Dist. 2009) (citing White v. DaimlerChrysler Corp., 368 Ill.App.3d 278, 283, 856 N.E.2d 542, 546-47 (1st Dist. 2006)). “The actual damage element of a private ICFA action requires that the plaintiff suffer ‘actual pecuniary loss.'” Su Yeun Kim v. Carter's Inc., 598 F.3d 362, 365 (7th Cir. 2010) (quoting Mulligan v. QVC, Inc., 382 Ill.App.3d 620, 628, 888 N.E.2d 1190, 1197 (1st Dist. 2008)).

         The Lowrys' complaint alleges that Defendant engaged in both unfair and deceptive practices. (Compl. ¶ 303 (“Defendant Wells Fargo, [sic] committed unfair and deceptive acts, beginning prior to the Lowrys' loan default, and continuing to this day.”).) The complaint follows a peculiar format. In addition to a 152-paragraph recitation of facts, it contains eighteen “specifications, ” each of which reiterates portions of the facts section. Finally, the complaint's three counts reiterate some or all of the “specifications.” According to Plaintiffs, each specification “constitutes a separate and distinct allegation of wrongful conduct.” (Compl. at 31 n.5.) The court therefore attempts here to analyze each specification individually.

         All eighteen of the specifications are “incorporated and re-allege[d]” in the ICFA count (id. ¶ 303), but Plaintiffs do not make any distinction between those acts they claim were “deceptive” versus those that were simply “unfair.” As the court reads the complaint however, six of the eighteen specifications appear to allege deceptive or fraudulent activities- Specifications 13 through 18.[6] The first twelve specifications allege unfair treatment, which Plaintiffs claim, “violate[d] public policy, and . . . proximately caused injury in fact to the property of Plaintiffs . . . and damaged the health of Plaintiff Kathie Lowry.” (Compl. ¶¶ 313-15.)

         Allegations of unfair acts under the ICFA are subject to Rule 8(a)'s general pleading standard, while allegations of deceptive acts "sound[] in fraud" and are therefore subject to Rule 9(b)'s heightened pleading standard. See Pirelli Armstrong Tire Corp. Retiree Med. Benefits Trust v. Walgreen Co., 631 F.3d 436, 446 (7th Cir. 2011). Rule 9(b) requires a party alleging fraud to “state with particularity the circumstances constituting fraud.” Fed.R.Civ.P. 9(b). This “ordinarily requires describing the ‘who, what, when, where, and how' of the fraud, although the exact level of particularity that is required will necessarily differ based on the facts of the case.” AnchorBank, FSB v. Hofer, 649 F.3d 610, 615 (7th Cir. 2011) (citation omitted).

         A. Unfair Practice

         The court turns first to Plaintiffs' claims of unfairness. To determine whether a practice is unfair, Illinois courts consider three factors: “(1) whether the practice offends public policy; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers.” Robinson, 201 Ill.2d at 417-18, 775 N.E.2d at 961 (citing FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 244 n.5 (1972)). A practice may be unfair “because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three.” Id. A practice offends public policy if it violates a standard of conduct contained in an existing statute or common law doctrine that typically applies to such a situation. Elder v. Coronet Ins. Co., 201 Ill.App.3d 733, 558 N.E.2d 1312, 1316, (1st Dist. 1990); 3525 N. Reta, Inc. v. FDIC, No. 10 C 3087, 2011 WL 62128, at *6 (N.D. Ill. Jan. 6, 2011). For instance, “a plaintiff may predicate an ICFA unfairness claim on violations of other statutes or regulations . . . that themselves do not allow for private enforcement.” Boyd v. U.S. Bank, N.A., 787 F.Supp.2d 747, 753 (N.D. Ill. 2011).

         i. Specifications 1, 4, 5, 6, and 11: Loan Modification Review

         In Specifications 1, 4, 5, 6, and 11, Plaintiffs assert that Defendant violated the ICFA by failing to evaluate their eligibility for a loan modification pursuant to the terms of the Home Affordable Mortgage Program (“HAMP”). (Comp. ¶¶ 153-64, 173-85.) HAMP is “a federal initiative that gives loan servicers incentives to accept lower payments from homeowners at risk of foreclosure.” Calhoun v. Citimortgage, Inc., No. 14-1674, 580 F.App'x 484, 485 (7th Cir. 2014). 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. Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 554 (7th Cir. 2012). Failure to honestly and effectually implement HAMP guidelines constitutes an unfair business practice under the ICFA. Id. at 574-75.

         Supplemental Directive 09-01 of HAMP offers the following guidance: “All loans that meet the HAMP eligibility criteria and are either deemed to be in imminent default[7] . . . or 60 or more days delinquent must be evaluated using a standardized NPV[8] test that compares the NPV result for a modification to the NPV result for no modification.” U.S. Dep't of the Treasury, Home Affordable Modification Program Supplemental Directive 09-01 (Apr. 6, 2009) (hereinafter “Supplemental Directive 09-01”). This directive requires servicers to conduct NPV tests in certain circumstances, but ...


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