United States District Court, N.D. Illinois, Eastern Division
LORI WIGOD, on behalf of herself and all others similarly situated, Plaintiff,
PNC BANK, N.A., Defendant.
MEMORANDUM OPINION AND ORDER
Feinerman United States District Judge.
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.
Summary Judgment Motion on the ECOA Late Notice
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.
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.
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.
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.
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
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).
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.
Motion to Dismiss the ECOA Vague Notice Claim and the State
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).
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.
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.
Count II: ECOA ...