The Bank of New York Mellon v. Fiorentino , 2022 IL App (1st) 210660-U ( 2022 )

2022 IL App (1st) 210660-UNOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
SECOND DIVISION
May 31, 2022
No. 1-21-0660
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
The BANK OF NEW YORK MELLON FKA The Bank )
of New York, as Trustee for the Certificateholders of The )
CWALT, Inc., Alternative Loan Trust 2006-OA21 )
Mortgage Pass-Through Certificates, Series 2006-OA21, )
) Appeal from the
Plaintiff and Counterdefendant- ) Circuit Court of
Appellee, ) Cook County
)
v. ) No. 12 CH 4723
)
ANTONI FIORENTINO, UNKNOWN HEIRS AND ) The Honorable
LEGATEES of Antoni Fiorentino, if any, UNKNOWN ) Darryl B. Simko,
OWNERS and NONRECORD CLAIMANTS, ) Judge Presiding.
)
Defendants )
)
(Antoni Fiorentino, Defendant and Counterplaintiff- )
Appellant). )
PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court.
Justices Lavin and Cobbs concurred in the judgment.
ORDER
¶1 Held: Trial court’s determination that borrower’s monthly mortgage payment under loan
modification agreement included an escrow obligation is affirmed. Judgment in bench trial
that borrower had failed to prove counterclaim for breach of contract was not against the
manifest weight of evidence. Summary judgment in favor of lender on grounds that the
alleged conduct was not actionable as a consumer fraud claim is affirmed.
No. 1-21-0660
¶2 The defendant and counterplaintiff, Antoni Fiorentino (Fiorentino), appeals from a bench
trial judgment against him and in favor of the plaintiff and counterdefendant, The Bank of New
York Mellon FKA The Bank of New York, as Trustee for the Certificateholders of The CWALT,
Inc., Alternative Loan Trust 2006-OA21 Mortgage Pass-Through Certificates, Series 2006-OA21
(Lender), on the Lender’s complaint to foreclose a mortgage and on Fiorentino’s counterclaim for
breach of contract. Fiorentino also appeals the trial court’s order granting summary judgment in
favor of the Lender on his counterclaim alleging violations of the Consumer Fraud and Deceptive
Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2014)). We affirm.
¶3 I. BACKGROUND
¶4 On February 10, 2012, the Lender filed an action to foreclose Fiorentino’s mortgage on a
residential building at 1229 West Flournoy Street in Chicago. Fiorentino filed an amended answer,
affirmative defenses, and counterclaims alleging, inter alia, that the Lender had violated the
Consumer Fraud Act by various actions that it and its mortgage service provider (Bank of America)
had taken following a loan modification in May 2010, including misapplying payments, creating
an escrow account not called for by the modification, improperly force-placing hazard insurance
that already existed and then refusing to credit Fiorentino’s account, and ignoring requests for
accurate account statements. Fiorentino later filed a second amended version of that pleading,
realleging the affirmative defense and counterclaim under the Consumer Fraud Act and adding a
counterclaim for breach of contract concerning substantially the same acts. The trial court
eventually granted summary judgment in favor of the Lender on the counterclaim and affirmative
defense under the Consumer Fraud Act. The case proceeded to bench trial on the Lender’s action
to foreclose the mortgage and Fiorentino’s counterclaim for breach of contract.
¶5 Much of the evidence at the bench trial was undisputed. Two witnesses testified, Fiorentino
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and Nathan Musick, a customer resolution associate and assistant vice president employed by Bank
of America. Bank of America and various of its subsidiaries were, at the time relevant to this
appeal, the mortgage servicer on behalf of the Lender for Fiorentino’s mortgage. The evidence
showed that Fiorentino originally entered into a mortgage and promissory note with Countrywide
Bank in 2006, which was later transferred to the Lender. The mortgage contract imposed on
Fiorentino an obligation to advance funds for escrow items (property taxes, insurance premiums,
etc.) as part of his monthly payment, but it allowed this requirement to be waived. Accordingly, in
2006 when he entered into the mortgage, Fiorentino also signed an escrow waiver agreement with
Countrywide Bank requiring him to pay directly all escrow items and providing that if he failed to
pay an escrow item prior to its delinquency date, “my lender may rescind this escrow waiver
without notice and enforce the escrow account provision set forth in my loan documents.”
¶6 It is undisputed that by at least August 2008, Fiorentino had failed to make property tax
payments. Bank of America paid those taxes, and it sought recoupment by adding an escrow
component to Fiorentino’s regular monthly mortgage payment. In the year prior to May 2010, the
escrow component of Fiorentino’s monthly mortgage payment was $778.53 per month.
¶7 In 2009, Fiorentino proactively reached out to Bank of America about lowering his monthly
mortgage obligation due to challenges he foresaw in his future ability to make his monthly
payment. This ultimately culminated in a loan modification agreement the following year.
However, several events significant to the parties’ dispute occurred in the meantime.
¶8 In January 2010, Bank of America informed Fiorentino that it did not have evidence of hazard
insurance in place on his property and that such insurance would be purchased for $10,401 at his
expense if he did not provide evidence that it was already in place. Such insurance was in fact in
place, but nevertheless, in April 2010, Bank of America purchased and force-placed a hazard
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No. 1-21-0660
insurance policy for the property, and it added $10,401 to Fiorentino’s escrow account balance.
However, on May 6, 2010, Bank of America sent Fiorentino a letter confirming that the insurance
it had purchased at his expense had been cancelled with no charge to him. According to a ledger
introduced at trial by Bank of America, a credit of $10,401 was added to Fiorentino’s escrow
account on May 7, 2010. Fiorentino testified that based on subsequent communications, he
doubted that the credit had actually been made at that time. Musick testified that this credit was
added to his account that day. Musick also testified that, after receiving this credit on May 7, 2010,
the balance Fiorentino owed to Bank of America on his escrow account was $6031.71.
¶9 The trial court took judicial notice that in March 2010, a separate foreclosure action was filed
against Fiorentino by the Lender. According to Musick’s testimony, the filing of this action
resulted in various attorney fees and expenses being added to Fiorentino’s account at that time.
¶ 10 In correspondence dated March 29, 2010, Bank of America offered Fiorentino a loan
modification agreement that would roll $28,297.43 in delinquent payments into the principal of
his loan and “result in a new monthly payment amount of $2,312.31” to take effect on April 1,
2010. A footnote stated, “This payment is subject to change if your escrow payment changes.” The
cover letter indicated that Fiorentino had a “past due amount of $35,365.84,” but only $28,297.43
was being rolled into the principal. That latter amount comprised $27,699.27 in past due interest,
$598.16 in fees, and $0 in escrow. It also included a section explaining how the new monthly
payment amount of $2312.31 had been calculated. Below that calculation was a sentence stating,
“If you have an escrow account, this notice does not address any changes to your escrow payment.
Please refer to your monthly statement for information regarding your current escrow payment.”
¶ 11 The loan modification agreement itself provided that it was amending and supplementing the
mortgage contract and promissory note. It stated, “As of May 1, 2010 the scheduled monthly
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No. 1-21-0660
payment will be in the amount of U.S. $2,312.31.” It then provided for ten years of interest-only
payments, with the interest rate progressively increasing on April 1 of each subsequent year and
principal-and-interest payments commencing on April 1, 2020. It also contained a sentence
reflecting the borrower’s understanding “that the New Monthly Payment will be the minimum
payment that will be due each month (excluding Escrow Items) for the remaining term of the loan.”
¶ 12 Fiorentino testified at trial that his understanding was that all past unpaid escrow payments
had been rolled into the principal as part of the modification and that $2312.31 was his binding
monthly payment until Bank of America sent him a notice saying otherwise. He testified that he
did not believe that property taxes were escrowed under the loan modification agreement because
the first installment of taxes had been paid prior to the modification, all payments in arrears were
being rolled into the principal balance, and the second installment payment would not be due until
later in the year. Thus, he assumed there was no longer an escrow obligation on the account,
consistent with how it had been at the beginning of his loan. He also testified that he planned to
make the upcoming tax payments. He further testified that he did not think he was escrowing
insurance premiums under the loan modification. He testified that he had always paid his own
homeowner’s insurance since the inception of the loan in 2006. He testified, however, that he had
not paid property taxes directly since 2008 and that this was the case through the time of trial.
¶ 13 On April 28, 2010, Bank of America sent an annual escrow statement stating that “the escrow
portion of your payment is changing to $3,006.13 effective June 2010.” It contained an explanation
of how this figure had been determined. The figure was based upon a projection that Bank of
America would make future property tax installment payments of $4727.30 in August 2010 and
$4961.18 in February 2011 and a hazard insurance premium payment of $10,401 in January 2011.
It also included a “[s]hortage payment” of $1054.09 per month to keep the balance of his escrow
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No. 1-21-0660
account from falling below zero during the year. It reflected a beginning escrow account balance
of negative $7626.63. Fiorentino testified that he did not believe he owed $3006.13 as his escrow
obligation. He testified that he made a phone call to Bank of America about this.
¶ 14 Prior to May 1, 2010, Fiorentino sent what he intended to be his first monthly payment under
the new loan modification agreement (May 2010 payment) in the amount of $2500. He submitted
that amount with the intent of covering his required $2312.31 interest-only payment, with the
remainder to be applied to principal. However, the evidence showed that Bank of America did not
apply this payment to interest or principal at that time. Instead, Musick testified that there were
attorney fees, fines, and other expenses that had been added to the balance of Fiorentino’s loan,
stemming from the prior foreclosure action that had been filed in March 2010, which were in
excess of $2500. Thus, Fiorentino’s payment in May 2010 had been applied to those fees. (Musick
testified that Bank of America later reversed the application of this $2500 payment to fees and
applied it to a later interest and escrow payment, but this did not occur until January 2011.)
¶ 15 Prior to June 1, 2010, Fiorentino made what he intended to be his second monthly payment
(June 2010 payment) for $2400. Musick testified that when Bank of America received this
payment, it was applied to a suspense account because it was “less than a regular payment amount.”
Musick testified that Fiorentino’s “regular payment amount” at that time was $3090.84, which
consisted of an interest portion of $2312.31 plus an escrow portion of $778.53. Musick testified
that when Bank of America receives a payment that is less than a regular payment amount, it is
placed into an “unapplied” or “suspense” account until that account contains sufficient funds to
make a full regular monthly payment. He testified that a payment for less than a regular payment
amount can also be applied to late charges and fees according to the security documents. At the
time, Fiorentino was unaware of how these payments had been applied to his loan.
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¶ 16 Musick also testified that it was not until June 22, 2010, that the loan modification was fully
booked and implemented within Bank of America’s computer system. Musick testified that this
delay was due to the fact that it was not until June that Fiorentino had sent in the current paycheck
stubs and bank statements that Bank of America had requested to approve the modification.
¶ 17 On June 29, 2010, Bank of America sent Fiorentino a monthly statement reflecting a
“Principal and/or Interest Payment” of $2312.31 and a “Total Payment Amount” of $5318.44.
(This was a difference of $3006.13, consistent with the escrow amount on the statement of April
28, 2010.) However, it also reflected a past-due payment amount of $8409. That notice also stated,
“If you and [Bank of America] have entered into an agreement to address your monthly payments,
please make payments in accordance with this agreement.” Upon receiving this statement,
Fiorentino contacted Bank of America because he believed the escrow numbers were still incorrect
and continuing to reflect the force-placed hazard insurance purchased by Bank of America. He
was also concerned about the past-due payment amount shown, since he had made two payments
under the loan modification agreement by this time. He was concerned by this time that Bank of
America had not gotten the modification completed through all of its departments.
¶ 18 On July 14, 2010, Bank of America sent Fiorentino a notice that he was in default, due to the
failure to make required payments, and that it intended to accelerate his mortgage. That notice set
forth two monthly charges, $3090.84 due May 1, 2010, and $10,636.88 due June 1, 2010. It also
reflected $231.34 in late charges, $87.16 in uncollected costs, $2998.16 held as a partial payment
balance, and $11,047.96 as the total he owed. Fiorentino described receiving this notice as the
“spark” that cause him to think something was incorrect about how the loan modification had taken
place and to question whether his prior payments had been properly credited to his loan. The
amount of the monthly charge owed for June also caused him to question whether Bank of America
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No. 1-21-0660
had properly credited the $10,401 in force-placed hazard insurance back to him.
¶ 19 Fiorentino testified that he looked at Bank of America’s online portal and could not see how
his prior payments had been applied to his loan. He testified that he called Bank of America “so
many times I couldn’t count,” but he could not get anyone to give him a clear answer about why
the past-due amounts were still reflected on his account and why it did not appear that his May
and June 2010 payments had been credited to his loan. He testified that when he would call Bank
of America and tell them that there was a payment missing from May 2010, “a lot of times they
would just act like they didn’t understand what I was talking about. *** [I]t would look like I’m
confused talking to them because they didn’t have the information of that payment either.” He also
went in person to Bank of America branches to try to get answers.
¶ 20 After this time, the evidence showed a continuing pattern in which Fiorentino would submit
monthly payments, which varied in amount but were always at least $2312.31. Thereafter, he
would receive a notice from Bank of America stating that he was in default on his mortgage
obligations by varying amounts in excess of several thousand dollars and that he had incurred new
late charges. He would then contact Bank of America in an attempt to resolve the discrepancy
without avail. However, on August 27, 2010, he began making monthly payments in the amount
of $3090.84, and he continued paying this amount for several months. He testified that the reason
he made payments in this amount was because he had gone to a Bank of America branch and, upon
having a conversation there, it became clear to him that $3090.84 was the amount of the payment
“that the computer system wanted.” He testified that the reason he later changed to paying a lower
amount was because he wanted the excess applied to principal, but Bank of America was not doing
this. Instead, it was “reversing fees, putting the payment in, backing it out, breaking it into pieces.”
He testified that, as he continued to receive notices of default into the fall of 2010, his concern was
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that the May 2010 payment had been lost and that this was causing late fees to continually
accumulate on his account, putting him further into arrears. He also believed that Bank of America
recognized its mistake in failing to roll the escrow balance that had been outstanding as of April
2010 into the principal in his loan modification, and he thought eventually this would be corrected.
¶ 21 The final notice of default and intent to accelerate the mortgage in this case was sent to
Fiorentino on January 11, 2011. The evidence showed that thereafter he continued to make
monthly payments through at least October 31, 2011. On December 20, 2011, Bank of America
sent him a notice that it was returning funds to him in the amount of $3508.80 for the reason that
the “amount remitted does not represent the total due.” A notation in Bank of America’s phone
call logs from that time reflects that Bank of America communicated to him that a foreclosure was
in process. The instant foreclosure suit was then filed on February 10, 2012.
¶ 22 Musick testified in detail, with reference to the ledger for Fiorentino’s account, about how
Bank of America had applied each of Fiorentino’s mortgage payments between May 2010 and
October 2011. Only a few of these payment applications are truly pertinent to this appeal. As stated
above, Musick testified that the May 2010 payment for $2500 was initially applied to attorney fees
and costs on his account, stemming from the prior foreclosure action that had been filed in March
2010. However, on January 10, 2011, Bank of America reversed that application and instead, after
combining it with other funds held in the suspense account at that time, reapplied that $2500 to the
regular monthly interest and escrow charges due for September 2010, which was then the most
delinquent payment. Musick testified that the original application of the payment to fees had been
proper under the mortgage contract, but Bank of America’s adjustment of the application of that
$2500 in January 2011 was done as “kind of a gratuity here, trying to help him out.”
¶ 23 Musick also testified that the June 2010 payment for $2400 was applied to the suspense
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account, because it was less than a regular monthly payment due. Musick did not testify about how
this money was eventually withdrawn from the suspense account and applied, but the account
ledger in evidence indicates it was held in the suspense account until September 29, 2010, when it
was applied toward the then-outstanding escrow balance of $3599.27. In the meantime, two
payments, one for $2500 on June 30, 2010, and one for $3000 on July 25, 2010, were combined
and applied toward the regular monthly payment of $3090.84 for May 2010, and $2409.16 of the
payment due for June 2010. Also, the two payments that followed were both for $3090.84, made
on August 27, 2010, and September 16, 2010; because these were full monthly payments, they
were applied as the regular monthly payments for July 2010 and August 2010, respectively.
¶ 24 Thereafter, Musick continued to go through each of Fiorentino’s payments through October
31, 2011, and he explained how each was applied. We need not go through this testimony in detail.
In summary, his testimony showed that most of Fiorentino’s monthly payments were for amounts
less than a regular monthly payment of interest and escrow. When Bank of America would receive
such a payment, it would be applied to the suspense account and sometimes to late charges. When
sufficient funds had accumulated in the suspense account to make a regular monthly payment, then
such funds would be withdrawn from the suspense account and applied to make the monthly
payment for the most delinquent month. On a few occasions, the funds were returned to Fiorentino.
He also testified that, on February 9, 2011, Bank of America paid $1501 for hazard insurance, and
this amount was added to the escrow balance. Musick testified that Fiorentino did not by February
10, 2011, pay the amount of $11,008.98 stated as necessary to cure the default in the final notice
and intent to accelerate sent to Fiorentino on January 11, 2011.
¶ 25 On cross-examination, Musick testified that he was unaware if any conversation had occurred
with Fiorentino at the time of his loan modification informing him of what he was required to pay
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as an escrow payment. He testified that he had requested the statements that had been sent to
Fiorentino in April and May 2010, but Bank of America no longer had records prior to 2011 or
2012. He testified that he did not know how the monthly charge of $10,636.88 for June 2010 was
reflected on the notice of default and intent to accelerate sent on July 14, 2010. He was likewise
unable to give an explanation of how Bank of America had determined various other amounts
stated on later notices of default that it sent in subsequent months. He was not aware of any
document informing Fiorentino of an increase in his escrow payment around September 2010.
¶ 26 Following the conclusion of testimony, the parties submitted written closing arguments. The
trial court then entered a written order in which it found that Fiorentino had failed to prove a breach
of the loan modification agreement. It entered judgment in favor of the Lender and against
Fiorentino on both the complaint to foreclose the mortgage and on Fiorentino’s counterclaim.
Fiorentino then filed a motion to reconsider that judgment, which the trial court denied. The trial
court made express findings pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016)
that there was no just reason for delaying the enforcement or appeal of its judgment order, its order
denying the motion to reconsider, and its order granting summary judgment on the Consumer
Fraud Act claims. This appeal then followed.
¶ 27 II. ANALYSIS
¶ 28 A. Bench Trial Judgment
¶ 29 Fiorentino’s first two arguments on appeal challenge the judgment of the trial court following
the bench trial, based in part on its interpretation of the loan modification agreement. The standard
of review following a bench trial is whether the trial court’s order or judgment is against the
manifest weight of the evidence. Reliable Fire Equipment Co. v. Arredondo, 2011 IL 111871, ¶ 12.
A judgment is against the manifest weight of the evidence only when the findings appear to be
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unreasonable, arbitrary, or not based on evidence or when an opposite conclusion is apparent.
Vaughn v. City of Carbondale, 2016 IL 119181, ¶ 23. Under this standard of review, the appellate
court gives deference to the trial court as the finder of fact because it is in the best position to
observe the conduct and demeanor of the parties and witnesses and achieves a degree of familiarity
with the evidence that a reviewing court cannot possibly obtain. In re D.F., 201 Ill. 2d 476, 498-
99 (2002). The appellate court therefore does not substitute its judgment for that of the trial court
regarding the credibility of witnesses, the weight to be given to evidence, or the inferences to be
drawn. Id. at 499. Accordingly, the trial court’s judgment will be affirmed provided the record
contains any evidence supporting it. In re Estate of Wilson, 238 Ill. 2d 519, 570 (2010).
¶ 30 However, to the extent that issues in a bench trial involve the interpretation of contracts, such
rulings are conclusions of law that the appellate court reviews de novo. Eychaner v. Gross, 202 Ill.
2d 228, 252 (2002); see also International Supply Co. v. Campbell, 391 Ill. App. 3d 439, 448-49
(2009). Factual findings pertaining to the interpretation of that contract are given deference on
review and are subject to reversal only when they are against the manifest weight of the evidence.
Asset Recovery Contracting, LLC v. Walsh Construction Co., 2012 IL App (1st) 101226, ¶ 74. The
primary goal of contract interpretation is to give effect to the parties’ intent by interpreting the
contract as a whole and applying the plain and ordinary meaning to unambiguous terms. Joyce v.
DLA Piper Rudnick Gray Cary LLP, 382 Ill. App. 3d 632, 636-37 (2008).
¶ 31 1. Monthly payment obligation
¶ 32 Fiorentino’s first argument is that the trial court incorrectly interpreted the loan modification
agreement to require a monthly payment that included an escrow obligation in addition to the
amount required to cover the interest portion of his interest-only loan. In support of his argument,
he relies on the provision of the loan modification agreement stating that, “[a]s of May 1, 2010 the
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scheduled monthly payment will be in the amount of U.S. $2,312.31.” Fiorentino asserts that the
loan modification agreement states nothing about an escrow for taxes or insurance being required
in addition to the stated amount. He argues that the loan modification agreement thus
unambiguously requires payments of only $2312.31 for the year commencing May 1, 2010, that
the uncontradicted evidence showed he made payments of at least that amount until Bank of
America stopped accepting his payments in late 2011, and that Bank of America therefore
breached the loan modification agreement and mortgage contract by rejecting his payments and
filing this foreclosure action.
¶ 33 In its judgment order, the trial court found that Fiorentino’s monthly payment due beginning
May 1, 2010, was $3090.84 ($2312.31 for interest plus $778.53 for the property tax escrow). 1 The
trial court reasoned that, under the escrow waiver agreement that Fiorentino had signed in 2006,
the lender had the right to rescind the waiver and enforce “ ‘without notice’ ” the escrow provisions
of the mortgage contract if Fiorentino failed to pay the escrow items himself. The trial court noted
that Fiorentino had not been paying property taxes directly since 2008 and that Bank of America
had been escrowing a portion of his monthly payments since that time, after it had begun paying
those property taxes on his behalf. The trial court further noted that when the proposed loan
modification agreement was sent to Fiorentino in 2010, it was accompanied by a four-page notice
that showed how the new monthly payment amount of $2312.31 was being calculated, indicated
that it consisted only of interest, and advised that it did not “ ‘address any changes’ ” to any escrow
payment obligation that Fiorentino might have.
¶ 34 We agree with the trial court that the loan modification agreement provided for Fiorentino’s
1
The trial court’s order states that $788.53 was escrowed for property taxes, but the evidence
indicates that the amount was $778.53 as of May 1, 2010.
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monthly payment to include an escrow obligation in addition to the $2312.31 obligation for interest
for the period commencing May 1, 2010. Initially, we disagree with Fiorentino’s contention that
the loan modification agreement states nothing about escrows being required in addition to the
stated amount. Rather, the loan modification agreement itself includes a provision reciting that the
borrower understands “that the New Monthly Payment will be the minimum payment that will be
due each month (excluding Escrow Items) for the remaining term of the loan.” This language is
consistent with a contractual intent that $2312.31 was only the minimum amount Fiorentino
needed to pay, and an additional amount for escrow items was due in addition to that sum.
¶ 35 The loan modification agreement itself stated that it “amends and supplements” the original
mortgage contract and promissory note. Thus, we interpret these documents together as part of a
single contract comprising the terms of the original mortgage contract and promissory note that
the parties have not agreed to change, along with the new terms to which they have agreed in the
loan modification agreement. Id. at 637. Although the loan modification agreement does not
mention an escrow obligation, section 3 of the mortgage contract requires that Fiorentino “shall
pay to Lender on the day Periodic Payments are due *** a sum *** to provide for the payment of
amounts due for,” inter alia, “taxes” and “premiums for any and all insurance required by the
Lender.” Although the evidence showed that this escrow obligation had initially been waived in
2006, Fiorentino also signed an agreement at that time providing that if he failed to meet his
obligations of paying the taxes and insurance premiums otherwise subject to escrow, that waiver
could be rescinded “without notice” and “the escrow account provisions set forth in my loan
documents” could be enforced. The evidence showed that this occurred in 2008, when Fiorentino
stopped making direct payments of property taxes. Bank of America then began paying those taxes
and added an escrow obligation to Fiorentino’s monthly mortgage payment, which for the year
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prior to May 2010 was $778.53 per month. Thus, Fiorentino had an escrow obligation under
section 3 of the mortgage contract at the time he entered into the loan modification agreement in
2010. Nothing in the loan modification agreement amended, supplemented, or otherwise changed
the existing escrow obligation under section 3 of the mortgage contract.
¶ 36 Although we find that the contractual language alone is determinative, the intent that
Fiorentino’s escrow obligation continued to exist in addition to his new monthly interest payment
is further demonstrated by the cover letter or notice that accompanied the proposed loan
modification agreement. That notice stated that the enclosed modification agreement will “result
in a new monthly payment amount of $2,312.31.” A footnote to that sentence stated, “This
payment is subject to change if your escrow payment changes.” The notice also explained how
Bank of America had calculated the new monthly payment of $2312.31 and referred to that sum
as the “New Interest Payment.” Directly following that were sentences stating, “If you have an
escrow account, this notice does not address any changes to your escrow payment. Please refer to
your monthly statement for information regarding your current escrow payment.” These
statements in the notice are consistent with an intent and understanding that the sum of $2312.31
was only the amount due for interest and that an escrow obligation continued to exist in addition
to that interest obligation.
¶ 37 Also consistent with an intent that Fiorentino’s monthly mortgage payment after May 2010
included an escrow is the annual escrow statement dated April 28, 2010, in which Bank of America
advised him that “the escrow portion of your payment” was changing to $3006.13 in June 2010. It
showed how that amount was determined, which was based upon the projection that Bank of
America would make future property tax installment payments in August 2010 and February 2011
and a hazard insurance premium payment in January 2011. It also included an amount to cover the
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shortage in the escrow account over a 12-month period. At trial, there was little evidence presented
concerning the projected payments that gave rise to the calculation of this amount, although the
evidence clearly showed that Fiorentino disputed the accuracy of this amount and that Bank of
America thereafter considered his monthly escrow obligation to be only $778.53, the same as it
had had been the preceding year. However, there is simply no support in either the contract or the
evidence for the notion that Fiorentino’s escrow obligation was $0 or that it did not include at least
the amount of property taxes projected to be paid by Bank of America in the year ahead.
¶ 38 Accordingly, we affirm the trial court’s determination that the loan modification agreement
and mortgage contract imposed an escrow obligation in addition to the monthly interest payment
of $2312.31, for the period commencing May 1, 2010. The trial court’s finding that such monthly
escrow obligation was $778.53, as it had been the previous year, was supported by the evidence.
As this resulted in a total monthly payment amount of $3090.84 for this period, the trial court’s
determination that this was the monthly payment required under Fiorentino’s mortgage was not
against the manifest weight of the evidence.
¶ 39 2. Judgment against manifest weight of evidence
¶ 40 a. Application of May and June 2010 payments
¶ 41 Fiorentino next argues that the trial court’s judgment on his counterclaim for breach of
contract was against the manifest weight of the evidence. He argues that the loan modification
agreement and underlying mortgage contract were breached when Bank of America failed to apply
his payments correctly, failed to send monthly statements, and failed to send escrow statements.
He further argues the totality of the evidence supported a judgment in his favor, and the trial court’s
finding that he had breached those same contracts was against the manifest weight of the evidence.
¶ 42 Fiorentino’s argument that Bank of America failed to apply his payments correctly involves
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the May 2010 payment of $2500 and the June 2010 payment of $2400. He cites the fact that,
shortly after he made these payments, Bank of America sent him the statement dated June 29,
2010, indicating that his interest payment was $2312.31, that his total payment due was $5312.44,
and that he had a negative escrow balance of $6031.71, a past due amount of $8409, fees due of
$87, and a partial payment balance of $2998.16. That notice also directed him, if he and Bank of
America had entered into an agreement to modify monthly payments, to “make payments in
accordance with this agreement.” The cover letter of that agreement, he points out, directed him
to “refer to your monthly statement for information regarding your current escrow payments.” He
contends that these statements in these two documents amounted to a “circular reference,” creating
confusion about exactly how much he owed. He also cites the notice of default and intent to
accelerate dated July 14, 2010, which again indicated that he owed $3090.84 in monthly charges
for May and $10,636.88 in monthly charges for June, plus late fees. He argues that, despite
checking the online portal, making numerous phone calls, and visiting bank branches in person,
nobody from Bank of America could tell him what was going on at the time. He states that it was
not until after this lawsuit was filed and a Bank of America representative gave a deposition that
he learned the May 2010 payment had been applied to attorney fees. He cites the fact that this
information was never made available to him at that time, and therefore nobody could tell him
what had happened to his May 2010 payment.
¶ 43 The trial court’s conclusion that Fiorentino failed to prove that this was a breach of contract
is not contrary to the manifest weight of the evidence. Fatal to Fiorentino’s argument on appeal is
his complete failure to cite us to any specific contractual provision or term that he contends was
breached by Bank of America’s conduct here. Our own review of the mortgage contract and
promissory note reveal several provisions, including section 14 of the mortgage contract and
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section 7(E) of the promissory note, that allow, in the event of a borrower’s default, expenses such
as attorney fees, property inspection fees, and other expenses and costs pertaining to the default to
be charged to the borrower’s account. The evidence at trial was that, when Bank of America first
received Fiorentino’s May 2010 payment of $2500, it applied the payment to the reimbursement
of attorney fees and expenses stemming from the prior foreclosure action that had been filed
against Fiorentino in March 2010. Application of the funds in this manner appears to be consistent
with the contract, and Fiorentino cites no contract provision that required his May 2010 payment
to be applied in a different manner.
¶ 44 As for his June 2010 payment for $2400, Fiorentino argues that the trial court erred in finding
that this payment was properly applied to the suspense account. We reject this argument. As
discussed above, the evidence showed that the regular monthly payment due at that time was
$3090.84. Because the payment of $2400 was less than a regular monthly payment of $3090.84,
it was insufficient to bring the loan current and thus properly held in the suspense account under
section 1 of the mortgage contract. That section provides that the lender is not required to accept
a payment that is “insufficient to bring the Loan current.” The lender “may” accept such a payment,
“but Lender is not obligated to apply such payments at the time such payment is accepted.” Instead,
“Lender may hold such unapplied funds until Borrower makes payment to bring the Loan current.
If Borrower does not do so within a reasonable period of time, Lender shall either apply such funds
or return them to Borrower.” Thus, application of the June 2010 payment to the suspense account
was permissible under section 1 of the mortgage contract.
¶ 45 Fiorentino goes on to argue that, even if $3090.84 was the proper amount of his monthly
payment, Bank of America failed to follow its own procedures when it applied the $5500 in
payments made for July and August 2010 to monthly payments, instead of applying them to the
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suspense account (presumably to allow the funds from the June 2010 payment to be used sooner).
We reject this argument also. Assuming arguendo that there is sufficient evidence in this case of
Bank of America’s internal procedures, the parties’ relationship here is governed by a contract.
Internal policies and procedures cannot be used to impose additional duties not set forth in that
contract or to alter or enlarge the existing duties as the contract defines them. See Schweihs v.
Chase Home Finance LLC, 2021 IL App (1st) 191779, ¶¶ 40, 42. Bank of America’s holding of
the June 2010 payment in the suspense account and not applying it until September 29, 2010, is
allowable within the discretion granted to it in section 1 of the mortgage about when to apply the
funds. Accordingly, the trial court’s finding that Fiorentino failed to prove that this was a breach
of contract is not contrary to the manifest weight of the evidence.
¶ 46 b. Monthly account and escrow statements
¶ 47 Fiorentino also argues that the contract was breached by Bank of America’s failure to send
him monthly statements and escrow account analyses that accurately informed him that it was
requiring him to make a monthly payment in the amount of $3090.84 for the period commencing
May 1, 2010. He argues that the evidence that Bank of America failed to do this was
uncontradicted, and the trial court arbitrarily and capriciously ignored this evidence in finding that
he had not proven a breach of contract.
¶ 48 Our review of the record actually shows little evidence or argument on the topic of monthly
statements or escrow account analyses and about how the contract was breached by what Bank of
America sent or failed to send. Fiorentino’s testimony was that he received statements during this
time period reflecting escrow, but “some of them were conflicting.” He testified that he did not
“remember the specific date or month in which I was getting a regular statement that accurately
depicted the monthly payments due.” Only one monthly statement (dated June 29, 2010) is
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included in the record. We see no other evidence about what monthly statements were or were not
sent or what information they contained. Also, Fiorentino does not cite us to any contract provision
concerning monthly statements. Based on this, any conclusion that Fiorentino did not prove that
this was a breach of contract was not against the manifest weight of the evidence.
¶ 49 As for his claim that Bank of America failed to send him accurate escrow account analyses,
Fiorentino cites to the provision in section 3 of the mortgage contract requiring Bank of America
to send him written notice of any escrow account shortages. Specifically, this requirement of
section 3 states:
“If there is a shortage of Funds held in escrow, as defined under RESPA [(the Real
Estate Settlement Procedures Act, 12 U.S.C. § 2601 et seq. (2006))], Lender shall notify
Borrower as required by RESPA, and Borrower shall pay to Lender the amount necessary
to make up the shortage in accordance with RESPA, but in no more than 12 monthly
payments.”
RESPA requires a mortgage servicer to notify a borrower of a shortage in his or her escrow account
only one time per year. Id. § 2609(b) (mortgage servicer “shall notify the borrower not less than
annually of any shortage of funds in the escrow account”); 24 C.F.R. § 3500.17(f)(5) (2010)
(“servicer shall notify the borrower at least once during the escrow account computation year if
there is a shortage or deficiency in the escrow account,” which “may be part of the annual escrow
account statement”).
¶ 50 The evidence at trial showed that Bank of America sent Fiorentino an escrow account analysis
dated April 29, 2010, notifying him of the shortage in his escrow account. That statement reflected
that, of the $3006.13 that was stated to be the escrow portion of his monthly payment effective
June 2010, $1054.09 of that sum was for the “[s]hortage payment,” i.e., “[t]he monthly amount
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you must pay into your escrow account to keep the balance from falling below zero for the year.”
The remainder of that sum comprised $1674.13 as the base monthly amount needed to pay the
projected property taxes and insurance premiums and $277.91 as the reserve allowed for
unexpected tax and insurance increases and other costs. The statement also informed him that his
escrow account balance at that time was negative $7626.63.
¶ 51 We recognize that Fiorentino’s testified at trial that he did not believe that $3006.13 was the
accurate amount of his escrow obligation, due to the fact that this annual escrow statement was
issued between the time that Bank of America purchased the force-placed hazard insurance and
the time that it credited the premium back to his escrow account. We also recognize that the
evidence showed that Bank of America only required an escrow payment of $778.53 after that
time. However, this does not establish a breach of contract. The evidence put on by Fiorentino fell
short of showing that Bank of America improperly calculated his escrow obligation in the annual
escrow analysis statement it sent to him on April 29, 2010. 2 In that statement, Bank of America
informed him of the negative balance of his escrow account as of that time, as well as the amount
of monthly shortage payments needed to bring that balance to a positive amount over a 12-month
period. By doing so, Bank of America complied with the contract’s requirement that it “notify
Borrower as required by RESPA” of the shortage of funds in the escrow account. 3 By the contract’s
incorporation of the requirements of RESPA, Bank of America was required to do this only one
time per year. There does not appear to be any contractual requirement for Bank of America to
2
Section 3 of the mortgage contract allowed the lender to collect escrow funds not exceeding the
minimum permitted under RESPA and required it to “estimate the amount of Funds due on the basis of
current data and reasonable estimates of expenditures of future Escrow Items or otherwise in accordance
with Applicable Law.”
3
We note that Bank of America was required to notify Fiorentino of the amount of the escrow
account shortage but had the option under RESPA to allow the shortage to exist without seeking to collect
it. See 24 C.F.R. § 3500.17(f)(3)(ii)(A) (2010) (“The servicer may allow a shortage to exist and do nothing
to change it”).
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have recalculated the escrow analysis again after the force-placed hazard insurance premium was
recredited to Fiorentino’s account.
¶ 52 Furthermore, we find it significant that the evidence showed that, by at least August 27, 2010,
Fiorentino had received information from Bank of America that $3090.84 was the amount that it
expected to receive from Fiorentino as his regular monthly payment. Fiorentino made payments
in this amount for several months after this time. The evidence showed that the reason he
eventually stopped making payments in this amount was not due to a lack of information about
whether this was the amount that Bank of America wanted to receive from him as a regular
monthly payment. Rather, his testimony was that the reason he began making payments of less
than that amount was because he wanted the excess over $2312.31 to be applied to the principal
balance and he was dissatisfied with the way that Bank of America was applying it. In other words,
the evidence supports the conclusion that the reason Fiorentino was not making regular monthly
payments in the correct amount was not because Bank of America failed to give him accurate
information about the amount of his escrow obligation, but rather it was because of his incorrect
interpretation that the loan modification agreement did not require an escrow obligation at all.
¶ 53 c. Totality of the evidence
¶ 54 Fiorentino argues that the totality of the evidence supported a judgment in his favor on the
counterclaim for breach of contract. However, we find that this is simply a rehashing of the various
arguments that we have addressed and rejected above. The trial court’s judgment is not against the
manifest weight of the evidence. He also argues, in a single sentence, that the trial court’s finding
that the Lender had established all of the elements of its claim for breach of the mortgage contract
is against the manifest weight of the evidence and should be reversed. This conclusory sentence
fails to satisfy the requirement of an argument under Illinois Supreme Court Rule 341(h)(7) (eff.
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Oct. 1, 2020), and therefore we find review of the issue forfeited. Maday v. Township High School
District 211, 2018 IL App (1st) 180294, ¶ 50. However, even if the issue was not forfeited, we
agree with the trial court’s assessment that there was no evidence presented at trial demonstrating
that Fiorentino was ever current on his loan at any time after the time the parties entered into the
loan modification agreement. Accordingly, the trial court’s finding that Fiorentino was in breach
of the mortgage contract is not against the manifest weight of the evidence.
¶ 55 B. Summary Judgment
¶ 56 Fiorentino’s final argument on appeal is that the trial court erred in granting summary
judgment against him on his affirmative defense and counterclaim under the Consumer Fraud Act
(815 ILCS 505/1 et seq. (West 2014)). While the Lender argued multiple reasons why summary
judgment was appropriate on the Consumer Fraud Act allegations, the record indicates that the
trial court granted summary judgment on the basis that the allegations amounted merely to breach
of contract, not consumer fraud, because they involved only a failure to perform according to the
terms of the mortgage documents. On appeal, Fiorentino argues that, even if Bank of America’s
conduct gave rise to a claim for breach of contract, his allegations that its conduct in servicing his
mortgage was “unfair” also supports an independent claim under the Consumer Fraud Act.
¶ 57 A motion for summary judgment should be granted only where the pleadings, depositions,
admissions, and affidavits on file, when viewed in the light most favorable to the nonmoving party,
show that there is no genuine issue as to any material fact and that the moving party is clearly
entitled to judgment as a matter of law. Board of Education of Richland School District No. 88A
v. City of Crest Hill, 2021 IL 126444, ¶ 20; 735 ILCS 5/2-1005(c) (West 2018). A trial court’s
order granting summary judgment is reviewed de novo. Walker v. Chasteen, 2021 IL 126086, ¶ 13.
¶ 58 The Consumer Fraud Act is a regulatory and remedial statute intended to protect consumers,
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borrowers, and business persons against fraud, unfair methods of competition, and other unfair
and deceptive business practices. Robinson v. Toyota Motor Credit Corp., 201 Ill. 2d 403, 416-17
(2002). Recovery may be had for “unfair” as well as “deceptive” conduct, and an act or practice
can be unfair without being deceptive. Rockford Memorial Hospital v. Havrilesko, 368 Ill. App.
3d 115, 121 (2006). The criteria for evaluating unfair conduct is whether it (1) offends public
policy, (2) is immoral, unethical, oppressive, or unscrupulous, and (3) causes substantial injury to
consumers. Dubey v. Public Storage, Inc., 395 Ill. App. 3d 342, 354 (2009). Unfairness is evaluated
on a case-by-case basis, and a practice may be unfair without all three criteria being met. Id.¶ 59 However, “[a] breach of contractual promise, without more, is not actionable under the
Consumer Fraud Act.” Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill. 2d 100,
169 (2005). In Avery, the supreme court quoted the appellate court’s explanation of the rationale
behind this principle as follows:
“ ‘What plaintiff calls ‘consumer fraud’ or ‘deception’ is simply defendants’ failure
to fulfill their contractual obligations. Were our courts to accept plaintiff’s assertion that
promises that go unfulfilled are actionable under the Consumer Fraud Act, consumer
plaintiffs could convert any suit for breach of contract into a consumer fraud action.
However, it is settled that the Consumer Fraud Act was not intended to apply to every
contract dispute or to supplement every breach of contract claim with a redundant remedy.
[Citations.] We believe that a ‘deceptive act or practice’ involves more than the mere fact
that a defendant promised something and then failed to do it. That type of
‘misrepresentation’ occurs every time a defendant breaches a contract.’ ” Id. (quoting
Zankle v. Queen Anne Landscaping, 311 Ill. App. 3d 308, 312 (2000)).
¶ 60 Fiorentino’s second amended affirmative defenses and counterclaim under the Consumer
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Fraud Act allege that the Lender and its agent engaged in the following unfair acts: (1) failing to
honor its obligations under the loan modification agreement, (2) creating an escrow account for
insurance when the modification agreement made no mention of an escrow account, (3) debiting
Fiorentino’s account for the purchase of force-placed insurance and then failing to credit the
premium fee once Fiorentino proved that insurance was in place on the property, (4) misapplying
or failing to apply payments made by Fiorentino to his account, (5) ignoring and failing to answer
Fiorentino’s requests for accurate statements of his account, (6) filing a foreclosure lawsuit when
Fiorentino was not in breach of the mortgage or note, and (7) accepting payments in 2014 despite
having no intention of honoring the loan modification agreement or rectifying its breach thereof.
¶ 61 We agree with the trial court that each of these allegations of unfair conduct is essentially an
allegation that the Lender or its agent failed to perform in accordance with their obligations under
the mortgage contracts. Each of these matters is controlled by the parties’ undertakings and
obligations with respect to one another as set forth in these contract documents, and in fact the
consumer fraud allegations are largely the same as the allegations in the counterclaim for breach
of contract. Accordingly, summary judgment was properly granted under the principle that a
breach of a contractual promise without more is not actionable under the Consumer Fraud Act.
Avery, 216 Ill. 2d at 169. We reject Fiorentino’s argument that this principle is inapplicable because
he has alleged that Bank of America’s conduct was “unfair,” as the claims are still based on the
alleged failure to satisfy undertakings and obligations controlled by contract. See Philadelphia
Indemnity Insurance Co. v. Chicago Title Insurance Co., 771 F.3d 391, 402 (7th Cir. 2014).
¶ 62 III. CONCLUSION
¶ 63 For the reasons set forth above, the judgment of the trial court is affirmed.
¶ 64 Affirmed.
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