Estate of Dorothy Da v. Wells Fargo , 633 F.3d 529 ( 2011 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1549
E STATE OF D OROTHY D AVIS,
Plaintiff-Appellant,
v.
W ELLS F ARGO B ANK and L ITTON L OAN S ERVICING,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 C 2881—Marvin E. Aspen, Judge.
A RGUED N OVEMBER 5, 2010—D ECIDED JANUARY 12, 2011
Before E VANS, S YKES, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. Dorothy Davis was the
victim of a predatory mortgage loan in 1999. She sued
the original lender and won a judgment that has not
been collectable. In this lawsuit, Mrs. Davis (and now,
after her death, her estate) sought damages from Wells
Fargo Bank, which later bought her loan, and Litton
Loan Servicing, which later took over the servicing of
her loan. The lawsuit asserted claims for unconscionability
2 No. 10-1549
and fraud under Illinois state law, as well as federal
claims for violations of the Home Ownership and Equity
Protection Act (“HOEPA,” 15 U.S.C. § 1639), and race
discrimination under the Equal Credit Opportunity Act
(“ECOA,” 15 U.S.C. § 1691(a)), and race discrimination
under the Fair Housing Act (“FHA,” 42 U.S.C. § 3604(b)).
The district court dismissed most claims under Rule
12(b)(6) as barred by applicable statutes of limitations
and others on the merits, and granted summary judg-
ment on the merits of one final claim. Mrs. Davis’s estate
appeals the dismissal of these claims. We agree with
the district court’s analysis of all but one claim. The
exception is that we conclude that Mrs. Davis’s ECOA
claim of race discrimination should not have been dis-
missed at the pleading stage. The error was harmless,
however, because the defendants were entitled to sum-
mary judgment on the merits of her claim of race
discrimination. We affirm the judgment of the district
court.
I. Statutes of Limitations
The respective limitations periods for each of
Mrs. Davis’s claims frame the issues we review in
this appeal. Unconscionability and fraud claims are
subject to a five-year statute of limitations under Illinois
law. See 735 ILCS 5/13-205. HOEPA has a one-year
statute of limitations for money damages and a three-
year statute of limitations for rescission, 15 U.S.C.
§§ 1635(f), 1640(e), and the ECOA has a two-year statute
of limitations. 15 U.S.C. § 1691e(f). The FHA also has a two-
year statute of limitations. 42 U.S.C. § 3613(a)(1)(A).
No. 10-1549 3
The original predatory loan was made in 1999, but
Mrs. Davis did not file this lawsuit until 2007. The
district court determined that continuing violation
theories under Illinois and federal law were not applica-
ble. The district court therefore found that the statutes
of limitations for Mrs. Davis’s various claims barred
her claims except to the extent they were based on only
the following events: Litton’s letter proposing a modi-
fication of Mrs. Davis’s loan dated September 28, 2005;
Wells Fargo’s failure to inform Mrs. Davis prior to
January 19, 2007, that it was the owner of her mortgage;
and Litton’s March 2007 payoff demand. See Davis v.
Wells Fargo Bank, 2008 WL 1775481, at *4 (N.D. Ill. April 17,
2008). Thus, the formation of the mortgage contract
in September 1999 fell outside the statute of limitations
for each of Mrs. Davis’s claims and was not directly
actionable. Mrs. Davis has not offered any basis for chal-
lenging the district court’s statute of limitations deter-
minations. Like the district court, then, we review only
whether Litton’s September 28, 2005 loan modification
proposal, Wells Fargo’s failure to identify itself as the
holder of Mrs. Davis’s mortgage, or Litton’s March 2007
payoff demand can support Mrs. Davis’s claims.
II. Motion to Dismiss
We turn first to Mrs. Davis’s claims that were dis-
missed under Rule 12(b)(6) for failure to state a claim
upon which relief could be granted. We review these
claims de novo. See Tamayo v. Blagojevich, 526 F.3d 1074,
1081 (7th Cir. 2008). When analyzing the sufficiency of a
4 No. 10-1549
complaint, we construe it in the light most favorable to
the plaintiff, accept well-pleaded facts as true, and draw
all inferences in the plaintiff’s favor. See id. Mrs. Davis’s
claims could withstand the defendants’ motion to
dismiss only if she alleged enough facts to render the
claims facially plausible, not just conceivable. See
Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S. Ct. 1937, 1949
(2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). To withstand a Rule 12(b)(6) challenge after
Iqbal and Twombly, “the plaintiff must give enough
details about the subject-matter of the case to present a
story that holds together,” and the question the court
should ask is “could these things have happened, not
did they happen.” Swanson v. Citibank, N.A., 614 F.3d 400,
404-05 (7th Cir. 2010) (emphasis in original) (plaintiff’s
claim under Fair Housing Act survived motion to
dismiss by “identify[ing] the type of discrimination that
she thinks occur[red] . . ., by whom . . ., and when . . . . This
is all that she needed to put in the complaint.”).
Mrs. Davis’s claims of unconscionability, fraud, viola-
tions of HOEPA, and discrimination under ECOA were
based on the following events, as set forth in her
second amended complaint. We accept these allegations
as true for purposes of this appeal. See Hemi Group, LLC
v. City of New York, ___ U.S. ___, ___, 130 S. Ct. 983, 986-
87 (2010).
Dorothy Davis, a widowed, elderly, African-American
homeowner, lived in a single-family home in Kankakee,
Illinois. In 1999, Larry Turner approached Mrs. Davis
and recommended that she allow him to make repairs
to her home and garage. Mrs. Davis told Turner that
No. 10-1549 5
she still owed money on the house and told him the
terms of her mortgage. Turner offered to help her ob-
tain a new home loan at a better rate than she was
then paying. The loan that Turner was pushing on
Mrs. Davis would also pay him $17,000 for the home
repairs he said Mrs. Davis needed, and would con-
solidate some of Mrs. Davis’s other outstanding debt.
On September 23, 1999, Turner came to Mrs. Davis’s
home with Frank Saenz, an agent of Mortgage Express,
the originating lender and not a party to this case.
Mrs. Davis did not receive a Good Faith Estimate in
connection with the Mortgage Express loan and did not
receive a copy of the closing documents. She signed the
loan documents that Turner and Saenz presented to her
under pressure, without reading the documents and with-
out understanding their terms. When the loan closed,
Mrs. Davis had borrowed $87,550. Settlement charges
totaled a whopping $32,916.10. Mrs. Davis’s monthly
payments under the loan terms would be $780.64, even
though her monthly income amounted to only $1,100.
In 2001, Mrs. Davis brought suit against Mortgage
Express (d/b/a PGNF Home Lending Corporation) for
breach of contract, unjust enrichment, and violations of
the Illinois Consumer Fraud and Deceptive Businesses
Practices Act in Kankakee County, Illinois. Her case
was presented to a jury on February 14, 2007, apparently
in the absence of the named defendant. The jury
rendered a verdict in favor of Mrs. Davis, finding that
Mortgage Express had breached the mortgage loan con-
tracts and had been wrongfully enriched. The court also
found for Mrs. Davis on her fraud claim, and the court
6 No. 10-1549
entered a verdict of $136,500 against Mortgage Express.
Mortgage Express went out of business in April 2007, and
Mrs. Davis was unable to collect the judgment from
Mortgage Express.
In the meantime, however, Mrs. Davis’s loan had
changed hands.1 Mortgage Express assigned it to The
Provident Bank on September 23, 1999. On June 24,
2002, The Provident Bank filed a foreclosure action
against Mrs. Davis. Mrs. Davis answered and raised as an
affirmative defense that Mortgage Express had violated
the Illinois Consumer Fraud and Deceptive Business
Practices Act. At some point, The Provident Bank
assigned Mrs. Davis’s loan to Wells Fargo, and Wells
Fargo was substituted as the plaintiff in the foreclosure
action against Mrs. Davis.2
Besides pursuing foreclosure, the defendants made
other attempts to collect on Mrs. Davis’s mortgage loan.
1
The servicer of Mrs. Davis’s loan also changed in this
timeframe: her loan was serviced by PCFS Mortgage
Resources until December 1, 2004, when current defendant
Litton Loan Servicing took over.
2
It is unclear when The Provident Bank’s interest was
assigned to Wells Fargo. A September 28, 2005 letter from
Litton to Mrs. Davis, discussed above, said that the transfer
occurred on September 1, 1999, but Mrs. Davis did not sign
the mortgage with Mortgage Express until September 23, 1999.
PGNF Home Lending, the successor-in-interest to Mortgage
Express, asserted that The Provident Bank assigned the
Mrs. Davis Loan to Wells Fargo on March 3, 2006. This factual
inconsistency is immaterial and we need not resolve it.
No. 10-1549 7
On September 28, 2005, while both the foreclosure and
fraud lawsuits were still pending, Mrs. Davis received a
proposed loan modification agreement from Litton. The
proposal was said to be based on the mortgage con-
tract between Mrs. Davis and Wells Fargo “in its capacity
as Trustee, under the Pooling and Servicing Agreement
dated September 1, 1999, Home Equity Loan Asset
Backed Certificates, Series 1993-3.” After Mrs. Davis won
her case against Mortgage Express, her counsel contacted
Wells Fargo’s attorney by phone and by mail to inform
him of the verdict against Mortgage Express. The defen-
dants continued their attempts to collect on the mort-
gage loan after the jury found the original loan was
fraudulent. About five weeks after the verdict against
Mortgage Express, Litton sent a loan payoff statement
to Mrs. Davis demanding payment of $156,497.27. The
payoff statement was based, in part, on the closing costs
and settlement fees that had been found to be fraudulent
in the February 2007 trial. Then, on April 27, 2007,
Wells Fargo appeared in court to pursue the foreclo-
sure action that was still pending against Mrs. Davis
in Kankakee County, seeking damages in that case, again
based in part on the fraudulent closing costs and settle-
ment fees built into Davis’s original mortgage contract
with Mortgage Express.
Although not contained in Mrs. Davis’s federal com-
plaint, the record shows that on February 27, 2008, after a
trial, the Kankakee County court dismissed Wells
Fargo’s foreclosure action against Mrs. Davis, finding
that it had failed to prove its claim. This ruling was
based in large part on the fact that the settlement
8 No. 10-1549
charges wrapped in the loan had been found to be fraudu-
lent in Mrs. Davis’s action against Mortgage Express.
A. Unconscionability
Mrs. Davis alleged that Wells Fargo’s and Litton’s
actions were unconscionable under Illinois common
law. Specifically, she contended that “the contractual
loan, lease and written agreements Mrs. Davis signed . . .
were transactions that no fair and honest lender would
make and no reasonable borrower would accept,” and
that she signed the loan documents “without being able
to read or to understand them, and no one read or ex-
plained the contents of the papers to her before she
signed them. The contracts were one-sided, oppressive,
unfair and unconscionable.” Compl. ¶¶ 50-51. Because
a claim of unconscionability under Illinois law requires
a showing that either the formation of the contract
or a contractual term was improper, and none of
Mrs. Davis’s allegations falling within the limitations
period related to the formation of a contract, the
district court dismissed Mrs. Davis’s unconscionability
claim.
Under Illinois law, a contract may be found to be uncon-
scionable as a matter of law on either a “procedural” or
“substantive” basis, or both. Razor v. Hyundai Motor
America, 854 N.E.2d 607, 622 (Ill. 2006). Procedural
unconscionability refers to a situation in which a term
is so difficult to find, read, or understand that the party
could not fairly be said to have been aware she was
agreeing to it. Procedural unconscionability also takes
No. 10-1549 9
into account the party’s relative lack of bargaining
power. Razor, 854 N.E.2d at 622, citing Frank’s Main-
tenance & Engineering, Inc. v. C.A. Roberts Co., 408 N.E.2d
403, 410 (Ill. App. 1980). Substantive unconscionability,
on the other hand, refers to contractual terms which are
inordinately one-sided in one party’s favor. Razor,
854 N.E.2d at 622, citing Rosen v. SCIL, LLC, 799 N.E.2d
488, 493 (Ill. App. 2003).
Mrs. Davis has not shown that the district court erred
when it barred consideration of the formation of
her mortgage contract in September 1999 on statute of
limitations grounds. In this federal lawsuit, Mrs. Davis
was not using the doctrine of unconscionability in its
most familiar way, as an affirmative defense to bar en-
forcement of a contract or a particular term of a con-
tract. See, e.g., Razor, 854 N.E.2d at 622-24 (holding that
exclusion of consequential damages in limited war-
ranty was not enforceable because it was unconscionable).
Mrs. Davis instead sought damages from the successors
in interest to the original lender. We do not address
here whether unconscionability gives rise to a stand-
alone claim for damages under Illinois law, as Mrs. Davis
asserts here. We do not address that issue because even
if such a claim is cognizable in Illinois, it is clear that
such a claim would be barred by the five-year statute
of limitations.
To avoid the statute of limitations bar, Mrs. Davis con-
tends that her claim of unconscionability should be ex-
tended to the defendants’ later attempts to enforce the
mortgage contract and should not be limited to the con-
10 No. 10-1549
tract’s formation. In particular, Mrs. Davis relies on
specific language in Razor, in which the Illinois Supreme
Court stated that it was appropriate, in determining
whether a contract or a contractual term was unconscio-
nable, to take into account later events and to look be-
yond the facts and circumstances in existence at the
time the contract was created. See Razor, 854 N.E.2d at 621(“The unconscionability determination is not restricted
to the facts and circumstances in existence at the time
the contract was entered into . . . . Indeed, [ILCS 5/2-719(3)]
itself expressly provides that matters which become
known only subsequent to the drafting of the contract—
i.e., the type of injuries suffered as a result of breach—are
relevant to the unconscionability calculus.”) (internal
citations omitted). But that provision (which applies to
sales of goods) addresses only the facts and evidence
that may come to bear on the underlying question of
whether a contract or a particular contractual term
was unconscionable under Illinois law. It does not
change the underlying question itself.
That question remains whether a contract as a whole
or a specific contractual provision is unconscionable. In
Mrs. Davis’s case, answering that question hinges on
the formation of her mortgage contract with Mortgage
Express and the terms of that contract. Mrs. Davis signed
her mortgage contract in September 1999, outside
the statute of limitations for any possible claim for dam-
ages for unconscionability. She has not alleged an action-
able claim that is not barred by the statute of limita-
tions. The district court properly dismissed Mrs. Davis’s
unconscionability claim.
No. 10-1549 11
B. Fraud
To prove fraud under Illinois law, a plaintiff must show
that the defendant made a knowingly false representa-
tion of a material fact. The plaintiff must also show that
she reasonably relied on the false representation to her
detriment. See Enterprise Recovery Systems, Inc. v. Salmeron,
927 N.E.2d 852, 858 (Ill. App. 2010); citing Phil Dressler &
Associates, Inc. v. Old Oak Brook Investment Corp., 548
N.E.2d 1343, 1347 (Ill. 1989). Mrs. Davis’s allegations of
fraud are based on the following statements in her com-
plaint:
54. . . . [D]efendants have fraudulently concealed
from Mrs. Davis or have purposely misled her about
the duplicative, padded and excessive settlement
fees she would be charged and the monthly payments
she would be required to pay, an[d] now is being
compelled to pay through the foreclosure pro-
ceeding, for the mortgage loan.
55. Defendants further intentionally, knowingly and
recklessly have misrepresented that they were
offering Mrs. Davis a fair loan when the terms and
conditions of the loan were set and agreed to at an
artificially high rate which Mrs. Davis could never
meet and are now demanding that she repay the
loan and costs which have been found to be illegal.
56. Mrs. Davis was deceived by defendants, justifiably
relied on their willful misrepresentations, and was
induced to rely on them to her extreme detriment.
The district court limited its consideration of
Mrs. Davis’s fraud allegation to Wells Fargo’s failure to
12 No. 10-1549
identify itself as the owner of her mortgage until Jan-
uary 18, 2007. The court found that although that omis-
sion could constitute a false statement under Illinois law,
dismissal was appropriate because Mrs. Davis had
failed to allege that she relied on that statement to her
detriment.
On appeal, Mrs. Davis contends that the district
court erred in not also considering the defendants’ de-
mands that she pay her loan, demands that continued
even after the defendants knew that the Kankakee
County court had ruled that her loan was based in
part on Mortgage Express’s fraud. We agree that over-
looking this allegation was incorrect. Statements made
to induce someone to pay a purported debt that they
do not actually owe, if made with the requisite knowl-
edge and intent, can support an allegation of fraud. See
Hartigan v. E & E Hauling, Inc., 607 N.E.2d 165, 175-77 (Ill.
1992) (allegations that contractor’s letter sent to a metro-
politan authority contained material misrepresentations
as to contractor’s compliance with minority business
enterprise contract requirements, made for purpose of
inducing authority’s reliance in paying contract install-
ment, supported allegation of common-law fraud). How-
ever, we agree with the district court that Davis’s fraud
claim still fails for a different reason. Even though
Mrs. Davis alleged that the defendants attempted to
induce her to pay money that they knew she did not
owe, Mrs. Davis did not allege that she had relied on
the defendants’ demands for payment or that she had
suffered any damages as a result of those demands. To
the contrary, with the help of her attorney, she fought
No. 10-1549 13
those unjustified demands. Without reliance or
damages, Mrs. Davis does not have a viable claim for
fraud. We affirm the district court’s dismissal of
Mrs. Davis’s fraud claim.
C. The Home Ownership and Equity Protection Act
The Home Ownership and Equity Protection Act
requires lenders to make certain disclosures to borrowers
of “high cost” or “high rate” loans. See 15 U.S.C. § 1639;
Cunningham v. Nationscredit Financial Services Corp., 497
F.3d 714, 717 (7th Cir. 2007). Mrs. Davis alleged that the
defendants violated HOEPA by failing to disclose the
real cost of her mortgage and the nature of the terms of
her mortgage, including a description of the components
and the material terms of her loan, the rate of interest,
the period of the loan, the repayment schedule, any pre-
payment provision, her right to cancel the loan, and
other terms. She also alleged that the defendants failed
to give her a copy of a Truth In Lending Act statement
prior to, during, or soon after the loan closing. Compl.
¶¶ 59-61. Mrs. Davis’s loan closed in 1999, well outside
the statute of limitations for claims under HOEPA.
Without resolving the threshold issue of whether or not
Mrs. Davis’s loan would have qualified for HOEPA
protection if her claim had been timely, the district
court dismissed her claim. We affirm.
Although she closed on her loan in 1999, Mrs. Davis
argues that later events—specifically, Wells Fargo’s
and Litton’s failure to notify her when they assumed
their roles as holder and servicer of her mortgage, the
14 No. 10-1549
loan modification proposals Litton sent on behalf of
Wells Fargo in January and September 2005, and Wells
Fargo’s inability to “adequately inform Mrs. Davis or the
court of the actual terms of the loan” in the foreclosure
proceeding—triggered protection under HOEPA, effec-
tively extending the statute of limitations. Davis Br. 15-16.
She relies on Swanson v. Bank of America, N.A., 566 F. Supp.
2d 821 (N.D. Ill. 2008), aff’d, 559 F.3d 653 (7th Cir. 2009),
a Truth In Lending Act case in which the plaintiff
alleged that her credit card companies failed to provide
written notices of interest rate increases. The district
court in Swanson noted that the Truth In Lending Act
requires credit card companies to notify consumers of
changes to the initially-disclosed terms of credit under 12
C.F.R. § 226.9(c)(1), but dismissed Swanson’s claim
upon finding that the defendants had notified her in
their initial disclosures that rate increases would be
automatically triggered if she exceeded her credit limit,
which she had done. See Swanson, 566 F. Supp. 2d at 825-
27. Neither Swanson’s holding nor its commentary assists
Mrs. Davis here. Mrs. Davis’s loan was a closed-end
mortgage, not an open-ended home-equity loan or re-
volving credit account. She has not alleged that the de-
fendants failed to notify her of a change in her loan
terms after she signed the closing documents or that
there was any change in her loan’s terms. The events
that occurred within the statute of limitations do not
amount to an actionable claim under HOEPA, and on
this issue we also affirm the district court.
No. 10-1549 15
D. The Equal Credit Opportunity Act
The district court also dismissed Davis’s ECOA claim
under Rule 12(b)(6). The ECOA makes it illegal for credi-
tors to “discriminate against any applicant, with respect
to any aspect of a credit transaction . . . on the basis of
race.” 15 U.S.C. § 1691(a)(1). The statute defines “appli-
cant” as “any person who applies to a creditor directly
for an extension, renewal, or continuation of credit, or
applies to a creditor indirectly by use of an existing credit
plan for an amount exceeding a previously established
credit limit.” 15 U.S.C. § 1691a(b). To state a claim under
the ECOA, Mrs. Davis had to allege that she was an
“applicant” and that the defendants treated her less
favorably because of her race. See Moran Foods, Inc. v. Mid-
Atlantic Market Development Co., 476 F.3d 436, 441 (7th
Cir. 2007) (finding no need to resolve threshold issue
of whether a plaintiff was an “applicant” under the
ECOA because plaintiff failed to submit sufficient evi-
dence of discrimination under the ECOA to survive
summary judgment). Because Mrs. Davis did not allege
that she applied for an extension, renewal, or a continua-
tion of credit within the two-year statute of limitations
for ECOA claims, the district court found that Mrs. Davis
was not an “applicant” under the statute and granted
the defendants’ motion to dismiss. We respectfully dis-
agree and find that dismissal of Mrs. Davis’s ECOA
claim on this ground was error, though the error turned
out to be harmless.
Mrs. Davis relies on 12 C.F.R. § 202.2(e), which further
defines “applicant” under the ECOA as “any person
who requests or who has received an extension of credit
16 No. 10-1549
from a creditor, and includes any person who is or may
become contractually liable regarding an extension of
credit.” She contends that the defendants’ proposed loan
modifications and demands or payment qualify her as
an applicant under this definition. She also contends that
the defendants’ collection procedures and payment
demands were “credit transactions” under 12 C.F.R.
§ 202.2(m), which defines such transactions broadly as
“every aspect of an applicant’s dealings with a creditor
regarding an application for credit or an existing exten-
sion of credit (including but not limited to, information
requirements; investigation procedures; standards of
creditworthiness; terms of credit; furnishing of credit
information; revocation, alteration, or termination of
credit; and collection procedures).”
Mrs. Davis did not apply for credit from the defendants
during the ECOA’s statute of limitations, nor was there
a change to the terms of her existing loan. However,
Mrs. Davis alleged that on September 28, 2005, the defen-
dants offered to modify the terms of her loan, and that
the terms under which that offer was made were
racially discriminatory. In light of the broad regulatory
definitions, we find that Mrs. Davis, as the recipient of the
defendants’ offer to modify her loan, “received an exten-
sion of credit” and thus became an “applicant” under 12
C.F.R. § 202.2(e). See also 12 C.F.R. § 202.2(q) (defining
“extend credit and extension of credit” to include
“the refinancing or other renewal of credit.”).
Remand of Mrs. Davis’s ECOA claim, however, would
be fruitless. Identical allegations of racial discrimination
No. 10-1549 17
supported Mrs. Davis’s ECOA claim and her FHA
claim. The FHA claim survived the defendants’ motion to
dismiss but was the target of their motion for summary
judgment. As we detail below, when Mrs. Davis was
required to come forward with evidence showing race
discrimination, she failed to do so. Mrs. Davis’s ECOA
claim would suffer the same fate. We affirm the judg-
ment of the district court on this claim.
III. Summary Judgment
Only one of Mrs. Davis’s claims survived the defen-
dants’ motion to dismiss—racial discrimination in viola-
tion of the FHA. The parties each moved for sum-
mary judgment on that claim. The district court denied
Mrs. Davis’s motion and granted the defendants’ motion.
We review the district court’s decision de novo.
Summary judgment is appropriate when there are no
genuine issues of material fact, entitling the moving
party to judgment as a matter of law. Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Where
the non-moving party bears the burden of proof on an
issue at trial and the motion challenges that issue, the
non-moving party must set forth specific facts showing
that there is a genuine issue for trial. See Fed. R. Civ. P.
56(e)(2); Silk v. City of Chicago, 194 F.3d 788, 798 (7th Cir.
1999). The fact that both parties moved for summary
judgment does not change the standard of review.
The FHA makes it unlawful to “discriminate against
any person in the terms, conditions, or privileges of sale
18 No. 10-1549
or rental of a dwelling, or in the provision of services or
facilities in connection therewith, because of race, color,
religion, sex, familial status, or national origin.” 42 U.S.C.
§ 3604(b).3 Mrs. Davis’s complaint alleged that the defen-
dants had discriminated against her by “contracting . . . for
the origination and servicing of [her] mortgage loans
which contained terms and conditions less favorable
than in mortgage loans they contracted with similarly-
situated, non-minority borrowers,” Compl. ¶ 65, and that
they “discriminated against [her] by imposing unfair
credit terms, fees and expenses . . . on the basis of her
race.” Compl. ¶ 72. Like the district court before us, we
limit our review of Mrs. Davis’s claim to those events
that occurred within the two-year statute of limitations
for FHA claims—specifically Litton’s loan modification
proposal and the defendants’ attempts to collect on
Mrs. Davis’s loan. Allegations are one thing, but to with-
stand the defendants’ motion for summary judgment,
Mrs. Davis had to come forward with evidence to
show that the defendants’ conduct has a racially-based
disparate impact on borrowers, or with direct and/or
circumstantial evidence sufficient to demonstrate defen-
3
Another provision of the FHA, 42 U.S.C. § 3605(a), makes it
“unlawful for any person or other entity whose business
includes engaging in residential real estate-related transac-
tions to discriminate against any person in making available
such a transaction, or in the terms or conditions of such a
transaction, because of race . . . .” Mrs. Davis abandoned any
claim under § 3605 before the district court. See Davis v.
Wells Fargo Bank, 685 F. Supp. 2d 838, 844 (N.D. Ill. 2010).
No. 10-1549 19
dants’ discriminatory intent. See Bloch v Frischholz, 587
F.3d 771, 784 (7th Cir. 2009); Latimore v. Citibank Federal
Savings Bank, 151 F.3d 712, 715-16 (7th Cir. 1998). Without
evidence of a triable issue of fact, Davis’s FHA race dis-
crimination claim cannot survive summary judgment—
an analysis that extends to Mrs. Davis’s ECOA race
discrimination claim, as well.
At the summary judgment stage of her case, Mrs. Davis
primarily relied on four “affidavits.” Two of those sup-
posed affidavits were purportedly the written state-
ments of Geoffrey Smith, an associate of the Woodstock
Institute, and Nick Bianchi, a research analyst for the
National Training and Information Center.4 However,
4
If the Smith and Bianchi statements had been admissible, they
would have provided the following information. The Smith
statement described a report completed by the Woodstock
Institute entitled “Paying More for the American Dream: A
Multi-State Analysis of Higher Cost Home Purchase Lending.”
Smith Decl. ¶¶ 3-6. Mrs. Davis submitted a copy of “Paying
More for the American Dream” as an exhibit separate from
the Smith statement. And, according to the Bianchi statement,
the National Training and Information Center coordinated
“National People’s Action,” and National People’s Action
published a report entitled “The Truth About Wells Fargo:
Racial Disparities in Lending Practices.” The report examined
the residential mortgage lending performance of Wells Fargo
and its affiliate companies. Bianchi Decl. ¶¶ 2-3. Mrs. Davis
submitted a copy of “The Truth About Wells Fargo” also as a
separate exhibit from the Bianchi statement. These documents
do not sufficiently link reported wrongdoing by Wells Fargo
(continued...)
20 No. 10-1549
the Smith and Bianchi statements were not signed or
dated. The district court granted the defendants’ motion
to strike these documents because they failed to comply
with the requirements of Rule 56(e) and 28 U.S.C. § 1746.5Mrs. Davis also presented the declarations of Tony
Paschal and Elizabeth Jacobson. Paschal and Jacobson
were former Wells Fargo employees who worked in
Virginia and Maryland, respectively. Their declarations
were originally prepared in April 2009 for a lawsuit
pending in the United States District Court for the
District of Maryland. Although Paschal’s and Jacobson’s
declarations were signed, dated, and in compliance with
28 U.S.C. § 1746, neither Paschal nor Jacobson attested to
having any personal knowledge of Mrs. Davis’s loan or
its surrounding circumstances. The defendants moved to
strike these exhibits from the summary judgment record
because Mrs. Davis had not disclosed Paschal or Jacobson
4
(...continued)
in other circumstances to the claims of plaintiff in this case so
as to support an inference of race discrimination by these
defendants within the relevant time period.
5
Mrs. Davis’s response to the defendants’ motion to strike
claimed that she had provided the court with the original
Smith and Bianchi declarations, complete with verified signa-
tures, but contrary to Mrs. Davis’s assertion, the verified
documents were not attached. Courtesy copies of the declara-
tions provided to the court, file-stamped December 30, 2009,
were also not signed, dated, or notarized. See Davis, 685
F. Supp. 2d at 841-42.
No. 10-1549 21
as a witness as required by the discovery rules. See, e.g.,
Fed. R. Civ. P. 26(a), (e). Finding that Mrs. Davis’s failure
to disclose Paschal and Jacobson was neither substantially
justified nor harmless under Rule 37(c)(1), the court
granted the defendants’ motion to strike and excluded
the Paschal and Jacobson statements.
Mrs. Davis moved the court to reconsider its exclusion
of the Smith, Bianchi, Jacobson and Paschal statements.
Her motion was denied. Without the statements,
the only admissible evidence before the court on
Mrs. Davis’s behalf was her own testimony that she
believed that, if she had not been “an old, black lady,” the
defendants would have paid the judgment rendered by
the Kankakee County court against Mortgage Express.
The district court found that Mrs. Davis’s unsubstan-
tiated and speculative assertion was insufficient to raise
a disputed issue of material fact. Without evidence of
racial discrimination, it was appropriate to grant defen-
dants’ summary judgment motion. See Davis, 685
F. Supp. 2d at 846-47.
On appeal, Mrs. Davis attempts to rely on the ex-
cluded Smith, Bianchi, Paschal and Jacobson state-
ments, but she does not offer any meaningful argument
that the district court’s decision to grant the defendants’
motion to strike those statements was an abuse of dis-
cretion, and thus has waived any such arguments on
appeal. See United States v. Holm, 326 F.3d 872, 877 (7th
Cir. 2003) (“ ‘It is not the obligation of this court to
research and construct legal arguments open to parties,
especially when they are represented by counsel.’ ”),
22 No. 10-1549
quoting Beard v. Whitley County REMC, 840 F.2d 405, 408-
09 (7th Cir. 1988). We find, as the district court did,
that Mrs. Davis’s unsubstantiated belief that she was
mistreated by the defendants because she was black
was insufficient to support her discrimination claims.
Accordingly, the trial court’s disposition of Mrs. Davis’s
FHA claim on the parties’ cross-motions for summary
judgment was proper. Mrs. Davis’s ECOA claim rests
on the same allegations as did her FHA claim. When
required to do so, Mrs. Davis failed to bring forth any
admissible evidence of racial discrimination. The
correct disposition of her FHA claim also applies to
her claim that she was discriminated against under the
ECOA.
A FFIRMED.
1-12-11