673 F.3d 547 (7th Cir. 2012), 11-1423, Wigod v. Wells Fargo Bank, N.A.

Docket Nº:11-1423.
Citation:673 F.3d 547
Opinion Judge:HAMILTON, Circuit Judge.
Party Name:Lori WIGOD, Plaintiff-Appellant, v. WELLS FARGO BANK, N.A., Defendant-Appellee.
Attorney:Steven Lezell Woodrow (argued), Attorney, Edelson McGuire, LLC, Chicago, IL, for Plaintiff-Appellant. Irene C. Freidel (argued), Attorney, K & L Gates LLP, Boston, MA, for Defendant-Appellee.
Judge Panel:Before RIPPLE and HAMILTON, Circuit Judges, and MYERSCOUGH, District Judge.[*] RIPPLE, Circuit Judge, concurring.
Case Date:March 07, 2012
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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673 F.3d 547 (7th Cir. 2012)

Lori WIGOD, Plaintiff-Appellant,


WELLS FARGO BANK, N.A., Defendant-Appellee.

No. 11-1423.

United States Court of Appeals, Seventh Circuit

March 7, 2012

Argued Oct. 26, 2011.

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Steven Lezell Woodrow (argued), Attorney, Edelson McGuire, LLC, Chicago, IL, for Plaintiff-Appellant.

Irene C. Freidel (argued), Attorney, K & L Gates LLP, Boston, MA, for Defendant-Appellee.

Before RIPPLE and HAMILTON, Circuit Judges, and MYERSCOUGH, District Judge.[*]

HAMILTON, Circuit Judge.

We are asked in this appeal to determine whether Lori Wigod has stated claims under Illinois law against her home mortgage servicer for refusing to modify her loan pursuant to the federal Home Affordable Mortgage Program (HAMP). 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. In 2009, Wells Fargo issued Wigod a four-month " trial" loan modification, under which it agreed to permanently modify the loan if she qualified under HAMP guidelines. Wigod alleges that she did qualify

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and that Wells Fargo refused to grant her a permanent modification. She brought this putative class action alleging violations of Illinois law under common-law contract and tort theories and under the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA). The district court dismissed the complaint in its entirety under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Wigod v. Wells Fargo Bank, N.A., No. 10 CV 2348, 2011 WL 250501 (N.D.Ill. Jan. 25, 2011). The court reasoned that Wigod's claims were premised on Wells Fargo's obligations under HAMP, which does not confer a private federal right of action on borrowers to enforce its requirements.

This appeal followed, and it presents two sets of issues. The first set of issues concerns whether Wigod has stated viable claims under Illinois common law and the ICFA. We conclude that she has on four counts. Wigod alleges that Wells Fargo agreed to permanently modify her home loan, deliberately misled her into believing it would do so, and then refused to make good on its promise. These allegations support garden-variety claims for breach of contract or promissory estoppel. She has also plausibly alleged that Wells Fargo committed fraud under Illinois common law and engaged in unfair or deceptive business practices in violation of the ICFA. Wigod's claims for negligent hiring or supervision and for negligent misrepresentation or concealment are not viable, however. They are barred by Illinois's economic loss doctrine because she alleges only economic harms arising from a contractual relationship. Wigod's claim for fraudulent concealment is also not actionable because she cannot show that Wells Fargo owed her a fiduciary or other duty of disclosure.

The second set of issues concerns whether these state-law claims are preempted or otherwise barred by federal law. We hold that they are not. HAMP and its enabling statute do not contain a federal right of action, but neither do they preempt otherwise viable state-law claims. We accordingly reverse the judgment of the district court on the contract, promissory estoppel, fraudulent misrepresentation, and ICFA claims, and affirm its judgment on the negligence claims and fraudulent concealment claim.

I. Factual and Procedural Background

We review de novo the district court's decision to dismiss Wigod's complaint for failure to state a claim. E.g., Abcarian v. McDonald, 617 F.3d 931, 933 (7th Cir.2010). We must accept as true all factual allegations in the complaint. E.g., Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). Under the federal rules' notice pleading standard, a complaint must contain only a " short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The complaint will survive a motion to dismiss if it " contain[s] sufficient factual matter, accepted as true, to ‘ state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). " A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. A party who appeals from a Rule 12(b)(6) dismissal may elaborate on her allegations so long as the elaborations are consistent with the pleading. See Chavez v. Illinois State Police, 251 F.3d 612, 650 (7th Cir.2001); Highsmith v. Chrysler Credit Corp., 18 F.3d 434, 439-40 (7th Cir.1994) (reversing dismissal in relevant part based on such new elaborations);

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Dawson v. General Motors Corp., 977 F.2d 369, 372 (7th Cir.1992) (reversing dismissal based on new elaborations).

In deciding a Rule 12(b)(6) motion, the court may also consider documents attached to the pleading without converting the motion into one for summary judgment. See Fed.R.Civ.P. 10(c). Wigod attached to her complaint her trial loan modification agreement with Wells Fargo, along with a variety of other documents produced in the course of the parties' commercial relationship. The court may also consider public documents and reports of administrative bodies that are proper subjects for judicial notice, though caution is necessary, of course. See Papasan v. Allain, 478 U.S. 265, 268 n. 1, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986); 520 South Michigan Ave. Associates, Ltd. v. Shannon, 549 F.3d 1119, 1137 n. 14 (7th Cir.2008); Radaszewski ex rel. Radaszewski v. Maram, 383 F.3d 599, 600 (7th Cir.2004); Menominee Indian Tribe of Wisconsin v. Thompson, 161 F.3d 449, 456 (7th Cir.1998). We have done so here to provide background information on the HAMP program.

A. The Home Affordable Mortgage Program

In response to rapidly deteriorating financial market conditions in the late summer and early fall of 2008, Congress enacted the Emergency Economic Stabilization Act, P.L. 110-343, 122 Stat. 3765. The centerpiece of the Act was the Troubled Asset Relief Program (TARP), which required the Secretary of the Treasury, among many other duties and powers, to " implement a plan that seeks to maximize assistance for homeowners and ... encourage the servicers of the underlying mortgages ... to take advantage of ... available programs to minimize foreclosures." 12 U.S.C. § 5219(a). Congress also granted the Secretary the authority to " use loan guarantees and credit enhancements to facilitate loan modifications to prevent avoidable foreclosures." Id.

Pursuant to this authority, in February 2009 the Secretary set aside up to $50 billion of TARP funds to induce lenders to refinance mortgages with more favorable interest rates and thereby allow homeowners to avoid foreclosure. The Secretary negotiated Servicer Participation Agreements (SPAs) with dozens of home loan servicers, including Wells Fargo. Under the terms of the SPAs, servicers agreed to identify homeowners who were in default or would likely soon be in default on their mortgage payments, and to modify the loans of those eligible under the program. In exchange, servicers would receive a $1,000 payment for each permanent modification, along with other incentives. The SPAs stated that servicers " shall perform the loan modification ... described in ... the Program guidelines and procedures issued by the Treasury ... and ... any supplemental documentation, instructions, bulletins, letters, directives, or other communications ... issued by the Treasury." In such supplemental guidelines, Treasury directed servicers to determine each borrower's eligibility for a modification by following what amounted to a three-step process:

First, the borrower had to meet certain threshold requirements, including that the loan originated on or before January 1, 2009; it was secured by the borrower's primary residence; the mortgage payments were more than 31 percent of the borrower's monthly income; and, for a one-unit home, the current unpaid principal balance was no greater than $729,750.

Second, the servicer calculated a modification using a " waterfall" method, applying enumerated changes in a specified order until the borrower's monthly mortgage

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payment ratio dropped " as close as possible to 31 percent." 1

Third, the servicer applied a Net Present Value (NPV) test to assess whether the modified mortgage's value to the servicer would be greater than the return on the mortgage if unmodified. The NPV test is " essentially an accounting calculation to determine whether it is more profitable to modify the loan or allow the loan to go into foreclosure." Williams v. Geithner, No. 09-1959 ADM/JJG, 2009 WL 3757380, at *3 n. 3 (D.Minn. Nov. 9, 2009). If the NPV result was negative— that is, the value of the modified mortgage would be lower than the servicer's expected return after foreclosure— the servicer was not obliged to offer a modification. If the NPV was positive, however, the Treasury directives said that " the servicer MUST offer the modification." Supplemental Directive 09-01.

B. The Trial Period Plan

Where a borrower qualified for a HAMP loan modification, the modification process itself consisted of two stages. After determining a borrower was eligible, the servicer implemented a Trial Period Plan (TPP) under the new loan repayment terms it formulated using the waterfall method. The trial period under the TPP lasted three or more months, during which time the lender " must service the mortgage loan ... in the same manner as...

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