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Wigod v. PNC Bankk, N.A.

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

February 7, 2018

LORI WIGOD, on behalf of herself and all others similarly situated, Plaintiff,
v.
PNC BANK, N.A., Defendant.

          MEMORANDUM OPINION AND ORDER

          Gary Feinerman United States District Judge.

         In this putative class action, Lori Wigod alleges that PNC Bank violated the Equal Credit Opportunity Act (“ECOA”), 15 U.S.C. § 1691 et seq., and Illinois law by notifying her, in a manner that was both untimely and unlawfully vague, that it had denied her mortgage loan modification application. Doc. 28. PNC moves to dismiss the state law claims and the ECOA vague notice claim, for summary judgment on the ECOA late notice claim, and to strike the complaint's class allegations. Docs. 33, 51. The motion to dismiss the state law and ECOA vague notice claims is granted, the motion for summary judgment on the ECOA late notice claim is denied, and the motion to strike the class allegations on that claim is denied as well.

         I. Summary Judgment Motion on the ECOA Late Notice Claim

         Background

         Consistent with the local rules, PNC filed a Local Rule 56.1(a)(3) statement of undisputed facts with its summary judgment motion. Doc. 60. The relevant factual assertions in the Local Rule 56.1(a)(3) statement cite evidentiary material in the record and are supported by the cited material. See N.D. Ill. L.R. 56.1(a) (“The statement referred to in (3) shall consist of short numbered paragraphs, including within each paragraph specific references to the affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth in that paragraph.”). Local Rule 56.1(b)(3)(B) required Wigod to file a “concise response to [PNC's Local Rule 56.1(a)(3)] statement … contain[ing] a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon.” N.D.Ill. L.R. 56.1(b)(3)(B).

         Although Wigod's summary judgment opposition brief includes a section titled “Agreed To & Disputed Issues of Material Fact, ” Doc. 56 at 2-5, the section does not “contain a response to each numbered paragraph in [PNC's Local Rule 56.1(a)(3)] statement, ” as Local Rule 56.1(b)(3)(B) requires. Accordingly, the court accepts as true the facts set forth in PNC's Local Rule 56.1(a)(3) statement. See N.D. Ill. L.R. 56.1(b)(3)(C) (“All material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party.”); Olivet Baptist Church v. Church Mut. Ins. Co., 672 F. App'x 607, 607 (7th Cir. 2017) (“The district court treated most of the [defendant's] factual submissions as unopposed, because the [plaintiff] failed to contest them in the form required by Local Rule 56.1(b). We have held that the district court is entitled to enforce that rule in precisely the way it enforced the rule in this litigation.”); Curtis v. Costco Wholesale Corp., 807 F.3d 215, 218 (7th Cir. 2015) (“When a responding party's statement fails to dispute the facts set forth in the moving party's statement in the manner dictated by the rule, those facts are deemed admitted for purposes of the motion.”) (citation omitted). Given that PNC's factual assertions have been accepted as true, its motion to strike the declaration attached to Wigod's brief, Doc. 61, is denied as moot.

         All that said, the facts pertinent to the summary judgment motion are undisputed. On August 31, 2016, Wigod applied to PNC for a modification of her mortgage loan. Doc. 53 at ¶ 1. PNC responded on October 12 with a letter stating that additional information was needed to complete the application. Id. at ¶ 2; Doc. 53-1 at p. 3, ¶ 3. Wigod's husband faxed PNC the document completing her application during the evening of Saturday, October 22. Doc. 53 at ¶¶ 4-5; Doc. 53-1 at pp. 29-32. The next business day was Monday, October 24. Doc. 53 at ¶ 5. On November 23, 2016, PNC sent a letter to Wigod denying the application. Id. at ¶ 6.

         Discussion

         Count I of the operative complaint alleges that PNC violated the ECOA, as implemented by its Regulation B, by notifying her of the denial of her application more than thirty days after it received the completed application. Doc. 28 at ¶¶ 42-50. Regulation B states in relevant part: “A creditor shall notify an applicant of action taken within[] 30 days after receiving a completed application concerning the creditor's approval of, counteroffer to, or adverse action on the application.” 12 C.F.R. § 1002.9(a)(1)(i). PNC argues that it is entitled to summary judgment because it did not “receiv[e]” Wigod's completed application until Monday, October 24, 2016- the first business day after Wigod's husband, on Saturday, October 22, faxed the document that completed the application-and then sent the denial notice on November 23, exactly thirty days later. Doc. 52 at 4.

         The problem for PNC is that the regulation requires a creditor to provide notification “within[] 30 days after receiving a completed application, ” not “within[] 30 days of the first business day after receiving the completed application on a weekend.” When the drafters of Regulation B wished to measure time with reference to business days, they did so. See 12 C.F.R. § 1002.14(a)(1) (requiring creditors to provide an applicant with a copy of an appraisal “promptly upon completion [of the appraisal], or three business days prior to consummation of the transaction …, whichever is earlier”) (emphasis added). The fact that the drafters did not reference business days in Regulation B's thirty-day provision means that the provision measures time in calendar days, not business days. See Dean v. United States, 556 U.S. 568, 573 (2009) (“[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”); Ohio v. Akron Ctr. for Reproductive Health, 497 U.S. 502, 514 (1990) (“Interpreting the term ‘days' in [one section of the statute] to mean business days instead of calendar days seems inappropriate and unnecessary because of the express and contrasting use of ‘business day[s]' in [another section of the same statute].”) (second bracket in original); Allen v. Bank of Am., N.A., 2012 WL 5412654, at *4 n.* (N.D. Ill. Nov. 6, 2012) (“[W]here a statute uses the term ‘business days' in some provisions, the statute's use in other provisions of the unmodified word ‘days' is best interpreted to refer to calendar days.”).

         PNC responds that it “is not asking the [c]ourt to read ‘business days' into the statute, but to interpret ‘receiving' according to its plain language.” Doc. 59 at 4. As PNC sees it, to “receive” something requires “affirmative acceptance by the receiving party.” Id. at 10. Because PNC says that it was closed on Saturday, October 22, the earliest that affirmative act could have occurred for the document that completed Wigod's application was Monday, October 24, when it reopened for business. PNC's submission cannot be reconciled with common usage. Just as you “receive” an email when it hits your inbox, not when you open it, and just as you “receive” a letter when it is placed in your mailbox, not when you bring it inside your home, you “receive” a fax when it arrives at your fax machine, not when you retrieve it. Cf. Houston v. Lack, 487 U.S. 266, 271 (1988) (noting that litigants seeking to establish the timeliness of their appeals under Federal Rule of Appellate Procedure 4(a) may be able to “demonstrate … that the notice [of appeal] was not stamped on the date the court received it, ” thus indicating that the notice is “received” when it physically arrives at the clerk's office, not when an employee stamps and files it) (emphasis added).

         Accordingly, viewing the record in the light most favorable to Wigod, PNC received her husband's fax-and thus her completed application-on October 22, which is more than thirty days before it denied the application on November 23. Because PNC has not demonstrated that it complied with Regulation B's thirty-day notice provision, it is not entitled to summary judgment on Count I.

         II. Motion to Dismiss the ECOA Vague Notice Claim and the State Law Claims

         Background

         In resolving a Rule 12(b)(6) motion, the court assumes the truth of the operative complaint's well-pleaded factual allegations, though not its legal conclusions. See Zahn v. N. Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th Cir. 2016). The court must also consider “documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice, ” along with additional facts set forth in Wigod's brief opposing dismissal, so long as those additional facts “are consistent with the pleadings.” Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1020 (7th Cir. 2013). The facts are set forth as favorably to Wigod as those materials allow. See Pierce v. Zoetis, Inc., 818 F.3d 274, 277 (7th Cir. 2016). In setting forth those facts at the pleading stage, the court does not vouch for their accuracy. See Jay E. Hayden Found. v. First Neighbor Bank, N.A., 610 F.3d 382, 384 (7th Cir. 2010).

         PNC's letter to Wigod gave this reason for denying her mortgage loan modification application: “Income insufficient to support credit obligations.” Doc. 28 at ¶ 23. Wigod sent PNC an appeal letter seeking clarification “as to the inputs used to determine [her] income or credit obligations.” Id. at ¶ 24. PNC told Wigod days later that an independent review determined that her application had been correctly evaluated “according to PNC Bank, N.A. and your investor-provided guidelines.” Id. at ¶ 25. Wigod wrote back, repeating her request for the inputs used to determine her income and credit obligations. Id. at ¶ 26. Days later, PNC asked Wigod to resubmit the documents included in her initial application. Id. at ¶ 27. Wigod responded that she did not wish to reapply for a modification and reiterated that PNC had never provided her with the inputs she requested. Id. at ¶ 28.

         PNC then told Wigod via email that it could provide her the information over the phone, but not in a letter. Id. at ¶ 29. During the phone call, a PNC representative disclosed to Wigod the income numbers PNC had used, and Wigod pointed out two errors in PNC's calculations. Id. at ¶ 30. The representative responded that Wigod's appeal was still denied. Ibid. PNC then sent Wigod a letter stating that it could not modify her loan because she had not provided the information it had requested. Id. at ¶ 31.

         Discussion

         A. Count II: ECOA ...


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