Davis v. Bank

• Decision Date: 05 February 2010
• Docket Number: No. 07 C 2881.,07 C 2881.
• Citation: 685 F.Supp.2d 838
• Parties: Dorothy DAVIS, Plaintiff, v. WELLS FARGO BANK, Wells Fargo and Company, and Litton Loan Servicing, Defendants.
• Court: U.S. District Court — Northern District of Illinois

685 F.Supp.2d 838

Dorothy DAVIS, Plaintiff,

v.WELLS FARGO BANK, Wells Fargo and Company, and Litton Loan Servicing, Defendants.

No. 07 C 2881.

United States District Court,

N.D. Illinois,

Eastern Division.

Decided: Feb. 5, 2010.

William F. Spielberger, William F. Spielberger & Associates, P.C., Terence Edward Flynn, Flynn & Jones, Chicago, IL for Plaintiff.

Jonathan Daniel Nusgart, James V Noonan, Noonan & Lieberman, Katherine Marie Donat, Noonan & Lieberman, Ltd. Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

MARVIN E. ASPEN, District Judge:

Plaintiff Dorothy Davis alleges that Wells Fargo, NA. ("Wells Fargo") and Litton Loan Servicing, LP ("Litton")—the current owner and servicer of her mortgage, respectively—have violated the Fair Housing Act ("FHA"). Davis claims that Defendants wrongfully and discriminatorily continue to demand payment on her mortgage despite their knowledge that the initial mortgagee, Mortgage Express, Inc. defrauded her. Presently before us are the parties' cross-motions for summary judgment, as well as a motion to strike filed by Defendants. For the reasons discussed below, we grant Defendants' motions and deny Davis's motion.

BACKGROUND¹

On September 23, 1999, Davis executed a mortgage with Mortgage Express, for a home loan in the principal amount of $87,550.00. (Defs.' Facts ¶¶ 1, 7.) Several years later, Davis sued Mortgage Express for violation of the Illinois Consumer Fraud and Deceptive Business Practices Act. (See id ¶ 11; PL's Facts, Ex. A, Davis v. Mortgage Express, Inc., No. 01-105 slip. op. at 1 (Cir. Ct. Kankakee Cty. Feb 22, 2007) [hereinafter Fraud Order].) In February 2007, a jury found Mortgage Express liable to Davis for $136,500 plus costs for its fraudulent conduct in the mortgage transaction. (Defs.' Facts ¶ 12; Fraud Order at 1-2.)

In the meantime, Mortgage Express sold the mortgage to The Provident Bank, who then sold it to Wells Fargo in its capacity as trustee for certain assetbacked certificates.² (Defs.' Facts, Ex. 1, 10/16/09 Ledet Aff., Exs. A, C; id. Ex. 2, 10/21/09 Cohen Aff. ¶¶ 5-6.) Litton began servicing Davis's loan on December 1, 2004.³ (Defs.' Facts ¶ 36.) PCFS Mortgage Resources was the prior loan servicer. (Defs.' Facts, Ex. 1, 10/16/09 Ledet Aff. ¶ 11 & Ex. B.) For their part, neither Wells Fargo, nor Litton, originated Davis's loan or lent her any money.⁴ (Defs.' Facts ¶¶ 13, 19.)

In 2002, PCFS Mortgage Resources initiated a foreclosure proceeding against Davis, who allegedly had failed to make her monthly payments.⁵ (Defs.' Facts, Ex. 1, 10/16/09 Ledet Aff. ¶¶ 22-23.) Although Wells Fargo pursued the foreclosure matter after it took over Davis's loan, it was ultimately unsuccessful. (PL's Facts, Ex. G, Wells Fargo v. Davis, No. 02-197, slip op. at 1, 3-4 (Cir. Ct. Kankakee Cty. Feb. 27, 2008) [hereinafter Foreclosure Order].) The Kankakee County court found that Wells Fargo failed to prove its damages and thus, denied the claim. (Foreclosure Order at 3.) The court found that Davis would be entitled to assert affirmative defenses against foreclosure based on her arguments in the fraud case against Mortgage Express. (Id.) The court stressed, however, that it based its ruling only on Wells Fargo's lack of proof and that it made no "determination that the note and mortgage currently held by [Wells Fargo] are totally invalid and unenforceable." (Id. at 4.)

While the foreclosure case was pending, Davis filed this action on May 23, 2007. Davis alleges that Defendants are in violation of the FHA because they attempted to foreclose on her home and continued to demand repayment of the loan and related fees, even though they knew that an Illinois jury had already found these debts to have been based on fraud. (See PL's MSJ Mem. at 2, 7.) Davis contends that Wells Fargo wronged her and, as a remedy, should be required to pay her at least what the Kankakee jury awarded her, as described in the Fraud Order. (PL's MSJ Mem. at 3; see also PL's Facts, Ex. B, Davis Dep. at 18, 26-28.) Davis testified, in short, that she believed that Wells Fargo was responsible for the Kankakee jury award against Mortgage Express and that Wells Fargo would have paid those damages if she was not an "old, black lady." (PL's Facts, Ex. B, Davis Dep. at 27; see id. at 26-28.)

I. DEFENDANTS' MOTION TO STRIKE

Before addressing the merits of the pending summary judgment motions, we must first resolve Defendants' motion to strike. Defendants ask that we strike four of the affidavits submitted by Davis in support of her motion for summary judgment. (Mot. to Strike at 1.) For the reasons discussed below, we grant this motion in its entirety and strike Davis's Exhibits M through S.

Generally speaking, any supporting affidavit at the summary judgment stage "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated." Fed.R.Civ.P. 56(e)(1). Any documents referred to in an affidavit "must be attached or served with the affidavit." Id. In lieu of sworn affidavits, parties may also submit declarations pursuant to 28 U.S.C. § 1746 which requires the declarant to verify, "under penalty of perjury," that his or her statements are "true and correct." 28 U.S.C. § 1746(2). Statements that fail to comply with these requirements are inadmissible. See Cooper-Schut v. Visteon Auto. Sys., 361 F.3d 421, 429 (7th Cir.2004) ("A court must not consider... an affidavit that fail[s] to meet the standards of Rule 56(e) when considering summary judgment.").

A. Declarations⁶ of Geoffrey Smith and Nick Bianchi

Davis submitted a § 1746 declaration from Geoffrey Smith, who is associated with the Woodstock Institute. (PL's Facts, Ex. N, Smith Decl. ¶ 1.) In his declaration, Smith describes a report completed by that organization, entitled "Paying More for the American Dream: A Multi-State Analysis of Higher Cost Home Purchase Lending." (Id. ¶¶3-6.) Davis also submitted a declaration from Nick Bianchi, a research analyst for the National Training and Information Center, which coordinates National People's Action. (PL's Facts, Ex. Q, Bianchi Decl. ¶¶ 1-2.) Bianchi states that National People's Action published a report, "The Truth About Wells Fargo: Racial Disparities in Lending Practices, " which examined the residential mortgage lending performance of Wells Fargo and its affiliates. (Id. ¶¶ 3-4.)

Defendants point out that these declarations fail to comply with Federal Rule of Civil Procedure 56(e) and 28 U.S.C. § 1746 because, inter alia, they are unsigned and undated. (Mot. to Strike at 1-4; Mot. to Strike Reply at 1-2.) A declarant or affiant must personally sign a statement; for filing purposes, that original document should be scanned and then submitted to the court electronically. See N.D. ?. Gen'l Order on Elec. Filing, Gen'l Order No. 09-014, at 6-8 (June 5, 2009). Davis does not dispute the fact that these declarations were not personally signed by Smith and Bianchi, although she suggests that Defendants are impermissibly objecting to her evidence "on the very narrowest of technical grounds." (Resp. to Mot. to Strike at 1, 5.) In her response, filed December 15, 2009, Davis claims that she provided us with the original Smith and Bianchi declarations, with their verified signatures. (Id.) No such documents are attached to that filing, however. (Id.) Although we have what appear to be chambers courtesy copies of the Smith and Bianchi declarations, stamped December 30, 2009, they too are neither signed, nor dated, nor notarized.⁷ Thus, the Smith and Bianchi statements are inadmissible as either affidavits or declarations.⁸ See, e.g., Sellers v. Henman, 41 F.3d 1100, 1101 (7th Cir. 1994) (noting that a motion to strike had merit where the contested affidavit was "was unsigned and hence unsworn, and therefore did not comply with Rule 56(e)"); Gross v. Radioshack Corp., No. 04 C 4297, 2007 WL 917387, at *7 n. 14 (N.D.I11. Mar. 26, 2007) (rejecting a written statement because it was not signed or dated and because it was neither sworn, nor made under penalty of perjury).

In addition, Smith and Bianchi did not verify, certify or otherwise state that the assertions in their declarations are "true and correct," as required by 28 U.S.C. § 1746. "The Seventh Circuit teaches that a court is not to be 'unnecessarily hypertechnical and overly harsh on a party who unintentionally fails to make certain that all technical, non-substantive requirements of [declaration] execution... are satisfied, '... but compliance with 28 U.S.C. § 1746 is mandatory and fundamental, not a 'nonsubstantive' requirement." Knights v. Williams, No. 02 C 5017, 2005 WL 1838427, at *3 (N.D.I11. July 28, 2005) (quoting Pfeil v. Rogers, 757 F.2d 850, 859 (7th Cir.1985)). In light of the above defects, we strike the Smith and Bianchi declarations and the exhibits described therein.

B. Declarations of Tony Paschal and Elizabeth Jacobson

In support of her motion for summary judgment, Davis also submitted declarations from Tony Paschal and Elizabeth Jacobson, two former Wells Fargo employees who worked in Virginia and Maryland respectively. (PI's Facts, Ex. R, Paschal Aff. ¶¶ 1-2; Ex. S, Jacobson Aff. ¶¶ 1-3.) Paschal and Jacobson originally prepared these declarations in April 2009 for a lawsuit pending in the United States District Court for the District of Maryland, Mayor and City Council of Baltimore v. Wells Fargo Bank, N.A. et at, Case No. 08 C 0062 ("Maryland case"). Although these declarations comply with 28 U.S.C. § 1746, Defendants contend that Davis cannot rely on Paschal's and Jacobson's testimony because she neglected to disclose them as potential witnesses pursuant to Rule 26. (Mot. to Strike at 5; Mot. to Strike Reply at 2.)

In response, Davis does not deny that she failed to disclose Paschal and Jacobson. (See Resp. to Mot. to Strike at 4-5.) Pursuant to Rule 37, Davis may not use this evidence unless her failure to...