Wilmington Savings Fund Society v. Choi ( 2021 )

2021 IL App (2d) 200218-UNo. 2-20-0218
Order filed June 17, 2021
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(l).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
WILMINGTON SAVINGS FUND SOCIETY, ) Appeal from the Circuit Court
FSB, d/b/a CHRISTIANA TRUST, not in its ) of Lake County.
individual capacity but solely in its capacity )
as Certificate Trustee for NNPL Trust Series )
2012-1, )
)
Plaintiff, )
)
v. ) No. 12-CH-4742
)
ROBERT CHOI and OLGA CHTIGUEL, )
)
Defendants, )
)
(Robert Choi and Olga Chtiguel, Third-Party )
Plaintiffs-Appellants; PNC Bank, National ) Honorable
Association, and Kondaur Capital Corporation, ) Michael B. Betar,
as Separate Trustee of Matawin Ventures Trust ) Jacquelyn D. Melius, and
Series 2013-3, Third-Party Defendants- ) Daniel L. Jasica
Appellees). ) Judges, Presiding.
______________________________________________________________________________
JUSTICE BRENNAN delivered the judgment of the court.
Justices ZENOFF and JORGENSEN concurred in the judgment.
ORDER
¶1 Held: Appellants, proceeding pro se, forfeited most issues on appeal by failing to comply
with Illinois Supreme Court Rule 341(h)(7). For issues adequately briefed, we
conclude that the trial court properly dismissed appellants’ claims against prior
mortgagors and request for sanctions.
2021 IL App (2d) 200218-U¶2 At issue in this appeal is whether the trial court erred in dismissing a variety of claims
against PNC Bank, National Association (PNC), and Kondaur Capital Corporation (Kondaur)
(collectively, the Lenders), pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure
(Code) (735 ILCS 5/2-615, 2-619 (West 2016)), brought by Robert Choi and Olga Chtiguel
(Homeowners) arising out of their purchase of a home and the subsequent foreclosure on the
mortgage. Homeowners also challenge the trial court’s denial of their motion for sanctions against
Kondaur. We conclude that the trial court properly dismissed the claims and denied sanctions.
Accordingly, we affirm.
¶3 I. BACKGROUND
¶4 A. Facts Alleged
¶5 The following facts and characterizations are as alleged in Homeowners’ operative
complaints. In 2000, Homeowners purchased a home in Ingleside, Illinois, for $113,000, subject
to a mortgage. In 2003, Homeowners refinanced the loan with National City Mortgage as a Fair
Housing Administration (FHA) mortgage loan for $113,999. Robert signed the note and the
mortgage, while Olga signed only the mortgage, which stated, “Olga F. Choi is signing for the sole
purpose of waiving homestead rights.” The monthly payment under the new mortgage was $931.47
and the contract also required Homeowners to make a monthly escrow payment for property taxes
and insurance. Their new interest rate was 5.5%. PNC acquired Homeowners’ mortgage in 2009.
¶6 1. Homeowners’ Default and Loan Modification Requests
¶7 On April 1, 2012, Homeowners became unable to make their monthly payments, at which
time the remaining principal balance was $60,910.17. Beginning in August 2012, Homeowners
began submitting mortgage loan modifications applications to PNC. From time to time, PNC
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2021 IL App (2d) 200218-Uwould send Homeowners letters advising them of options to avoid foreclosure with affirmations
such as “We are here to help you.”
¶8 On September 19, 2012, PNC informed Homeowners that additional documentation for
their application would be required. PNC filed a complaint for foreclosure the same day.
¶9 In December 2012, Homeowners engaged Consumer Credit Counseling Services (CCCS)
to help them obtain a loan modification. CCCS attempted to mediate the application process with
PNC and, later, with its successor, Kondaur. From December 2012 through January 2014,
Homeowners submitted multiple additional mortgage loan modification applications to PNC,
which rejected all of the submitted applications. In some instances, PNC stated that the
applications were incomplete, while in at least two instances, PNC indicated that its rejection was
due, in part, to Robert’s credit score.
¶ 10 During that time, the following events took place: in January 2013, PNC filed a motion for
summary judgment on the foreclosure without providing notice to Homeowners; in April 2013,
Homeowners filed for bankruptcy; in May 2013, PNC filed a motion for relief from automatic stay
in the bankruptcy court; and in August 2013, Homeowners were discharged in bankruptcy.
¶ 11 In addition, while Homeowners pursued a loan modification, PNC allegedly failed to notify
them that they could terminate their escrow account after their principal balance had fallen below
the pertinent threshold; improperly “force placed” excessive hazard insurance on their home,
without notifying them, at an annual cost exceeding the previous insurance premium by over
$1000; failed to conduct a face-to-face meeting with Homeowners prior to foreclosure; charged
excessive legal and other fees in connection with the foreclosure and bankruptcy cases; failed to
respond to requests for information and a settlement offer; refused to fairly consider Homeowners
for loan modification; misled Homeowners into thinking that they would be fairly considered for
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2021 IL App (2d) 200218-Uloan modification via statements in its communications to Homeowners and via its agents;
repeatedly and falsely told Homeowners their applications were incomplete; and improperly based
its denial of a loan modification offer, in part, on Robert’s credit score.
¶ 12 In October 2013, PNC sold Homeowners’ loan to Kondaur. Further, Homeowners allege,
PNC received reimbursement from the Department of Housing and Urban Development (HUD)
in December 2013 for the outstanding balance of Homeowners’ loan and, in its claim to HUD,
PNC indicated that Homeowners were “Delinquent” as of October 2011 and “Ineligible for Loss
Mitigation” as of August 2012.
¶ 13 2. Transfer of Loan to Kondaur
¶ 14 In February 2014, Kondaur notified Homeowners that it had been assigned their loan. After
being notified of the transfer, Homeowners requested that Kondaur review the application they
submitted to PNC in January 2014. Kondaur denied receiving the application when the loan was
transferred. In March 2014, Homeowners, through CCCS, requested a new loan modification
application packet from Kondaur, which advised that Homeowners would need to provide a down
payment to be considered for modification. In response to this stipulation, CCCS referred
Homeowners to the Illinois Attorney General’s office, insisting that it did not have the expertise
to handle their case further. The office contacted Kondaur; Kondaur responded by sending a letter
to the Office indicating that Homeowners had submitted an incomplete application, which was
under review pending Robert’s return of a 2013 profit and loss statement for his business.
¶ 15 Over the next year, Homeowners and Kondaur engaged in a series of back-and-forth
communications. Homeowners were encouraged by Kondaur’s website, which contained
affirmations that it offered strategies to help borrowers stay in their properties and avoid
foreclosure, as well as assurances by Kondaur representatives that it was willing to work with
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2021 IL App (2d) 200218-Uthem. Homeowners submitted a new loan modification application after learning that Kondaur had
become the new loan servicer. Kondaur followed up by requesting additional documentation (a
2013 profit and loss statement), which Homeowners then sent to Kondaur. Kondaur never notified
Homeowners about their application, notwithstanding various phone inquiries about as to its status.
Homeowners also submitted a cash offer to settle their obligations under the loan and end the
foreclosure proceeding, which a Kondaur representative rejected via email.
¶ 16 In addition, Kondaur allegedly added various improper charges to Homeowners’ account
and demanded that Homeowners make an upfront payment before a loan modification plan could
be implemented. First, after Kondaur acquired the loan, it raised the monthly escrow payment
amount above what Homeowners had previously been paying to $1404.93. Homeowners
complained numerous times to Kondaur representatives that the escrow charges were inaccurate.
Second, Kondaur added various charges to Homeowners’ account, including legal fees, corporate
advances, and late fees, which they disputed. Third, Kondaur sent multiple documents labelled
“PAYOFF DEMAND STATEMENT” to Homeowners in April, May, and October 2014. The
October 21, 2014, statement indicated that Homeowners owed $81,396.11, as set forth by the
following line items:
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“Description Item Amount
Unpaid Principal Balance $60,910.17
Interest from [3/1/2012 - 11/30/2014] $9,208.79
Late Charges $74.52
Legal Fees $1,575.00
Corporate Advance $3,576.50
Escrow Advance Balance $6,051.13
TOTAL: $81,396.11”
Another letter, also dated October 21, 2014, further indicated that, to reinstate their loan,
Homeowners would need to pay $50,183.78 by November 30, 2014, as set forth by the following
line items:
“Description Item Amount
32 payments at $1,404.93 *** $44,957.76
Late Charges $74.52
Corporate Advance $3,576.50
Legal Fees $1,575.00
TOTAL AMOUNT $50,183.78”
Finally, Kondaur issued a letter to Homeowners dated November 3, 2014, giving them two options
to “resolve the delinquency” of their loan: (1) pay $15,000 by November 28, 2014, “to bring the
Loan contractually current”; or (2) pay $70,000 by November 28, 2014, “to release [Kondaur’s]
lien from the Subject Property.” Homeowners allege that a Kondaur representative
“kept reminding [them] that they were senior citizens and it would be in their best interest to pay
off their loan to Kondaur before it would be too late and before they would lose their house” and
2020 IL App (2d) 170817-Uthat “Kondaur attempted to scare [them] into paying inflated reinstatement or payoff demands so
as not to lose the house in their senior years.”
¶ 17 In sum, according to Homeowners, Kondaur added excessive costs to their mortgage
account balance when it maintained excessive hazard insurance on their home, overcharged
Homeowners’ escrow account, charged excessive legal and other fees in connection with the
foreclosure, and fraudulently added charges reimbursed by HUD. Further, Kondaur misled
Homeowners during the process of applying for a loan modification when it failed to respond to
requests for information and send written acknowledgements of Homeowners’ complaints, misled
Homeowners into thinking that they would be fairly considered for loan modification via
statements on its website and by its representatives, repeatedly and falsely told Homeowners their
applications were incomplete, and improperly attempted to “steer” Homeowners by demanding
large upfront payments in exchange for a loan modification offer. Homeowners contend that
Kondaur refused to fairly consider Homeowners for loan modification. Finally, Kondaur failed to
transfer loan modification application documents to its successive servicer.
¶ 18 3. Transfer of Loan to Wilmington
¶ 19 In July 2015, Kondaur notified Homeowners that their loan was being transferred to a new
servicer, Shellpoint Mortgage Servicing (Shellpoint). The mortgage was transferred to Wilmington
Savings Fund Society (Wilmington), with Shellpoint as its servicer. Kondaur allegedly failed to
transfer documentation pertaining to Homeowner’s loan modification application to Shellpoint.
After a year of communication, Homeowners reached a modification agreement with Wilmington
in 2016. The agreement was predicated on a starting balance of $80,000; included an interest rate
higher than the rate agreed to under the FHA loan; included $19,936.73 in added fees; and would
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2020 IL App (2d) 170817-Urequire $236,640 in total additional payments. Wilmington filed a motion to voluntarily dismiss
the foreclosure against Homeowners, which the trial court granted.
¶ 20 B. Procedural History
¶ 21 PNC initiated this proceeding when it filed its complaint for foreclosure on September 19,
2012. On May 6, 2014, Homeowners filed a counterclaim against PNC. Subsequently, Kondaur
was substituted as plaintiff in the foreclosure and Homeowners filed a third-party complaint
against PNC.
¶ 22 After various discovery motions, on January 4, 2016, Homeowners filed a motion for
sanctions against Kondaur pursuant to Supreme Court Rules 137 and 219(c). Ill. S. Ct. R. 137 (eff.
July 1, 2013); R. 219(c) (eff. July 1, 2002). Homeowners claimed Kondaur violated Rule 137 “by
making false statements in their discovery responses” and by failing to provide requested certified
answers in response to a 201(k) letter and to provide certification of completeness for the discovery
responses it had submitted. Homeowners then requested the court to bar Kondaur from filing any
further pleadings, to enter judgment in Homeowners’ favor, and to impose monetary sanctions on
Kondaur in accordance with Rule 219(c). Homeowners subsequently filed their operative
pleadings.
¶ 23 First, on October 21, 2016, Homeowners filed a third-party complaint against PNC. 1 The
pleading contained the following claims: (1) breach of the mortgage contract; (2) breach of the
“Mortgage Escrow Account Act” (765 ILCS 910/1 et seq. (West 2012)) disclosure form;
1
Homeowners’ pleading was labelled “First Amended Counterclaim Against PNC,” but
PNC had earlier been dismissed as a plaintiff after it sold the loan to Kondaur. Kondaur was
substituted as plaintiff and PNC was reintroduced to the litigation as a third-party defendant.
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2020 IL App (2d) 170817-U(3) breach of the escrow account disclosure agreement; (4) breach of the Real Estate Settlement
Procedures Act (RESPA) (see 12 U.S.C. § 2601 et seq. (2012)) servicing disclosure; (5) breach of
the FHA loan servicing disclosure statement; (6) violation of the Fair Debt Collection Practices
Act (FDCPA) (15 U.S.C. § 1692 (2012)); (7) violation of the Illinois Consumer Fraud and
Deceptive Business Practices Act (ICFA) (815 ILCS 505/2 et seq. (West 2012)); (8) violation of
the Illinois Uniform Deceptive Trade Practices Act (UDTPA) (815 ILCS 510/1 et seq. (West
2012)); (9) violation of RESPA and RESPA regulations (12 C.F.R. § 1024.1 et seq. (2012));
(10) breach of the Fiduciary Obligations Act (760 ILCS 65/0.01 et seq. (West 2012));
(11) promissory estoppel; (12) violation of the Illinois Fairness in Lending Act (IFLA) (815 ILCS
120/3 et seq. (2014)); and (13) “promissory fraud and fraudulent scheme.”
¶ 24 Then, on November 30, 2016, Homeowners filed a third-party complaint against Kondaur. 2
The pleading contained the following claims: (1) breach of the mortgage contract; (2) breach of
the escrow account disclosure agreement; (3) breach of the RESPA servicing disclosure;
(4) breach of the FHA loan servicing disclosure statement; (5) violation of the FDCPA;
(6) violation of “Dodd-Frank Act and [Bureau of Consumer Financial Protection]” rules and
regulations; (7) violation of RESPA and RESPA regulations; (8) violation of ICFA;
(9) promissory estoppel; (10) violation IFLA; (11) violation of the Equal Credit Opportunity Act
(ECOA) (15 U.S.C. § 1691 (2012)) and ECOA regulations (12 C.F.R. 1002.1 et seq. (2014));
2
Homeowners’ pleading was labelled “Third Amended Counterclaim.” Although
Wilmington was substituted as plaintiff after Kondaur transferred the loan, the record does not
indicate that Kondaur was dismissed as a plaintiff as PNC had been. At the time Homeowners filed
the pleading, however, Kondaur was substantively a third-party defendant.
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2020 IL App (2d) 170817-U(12) breach of the Fiduciary Obligations Act; (13) “promissory fraud and fraudulent scheme”;
(14) intentional infliction of emotional distress (IIED); and (15) violation of the Racketeer
Influenced and Corrupt Organizations Act (RICO) (18 U.S.C. § 1961 et seq. (2012)).
¶ 25 As to each of the Lenders, Homeowners alleged a variety of damages. First, the Lenders
charged improper legal fees, late fees, corporate advance fees and charged excessive amounts for
property taxes and escrow withholding. Second, Homeowners experienced emotional distress due
to their attempts to obtain a loan modification, resulting in Robert experiencing “pain, with great
restrictions on his movements” and Olga experiencing “spinal and neck nerve related injuries and
facial palsy” requiring medical treatment and leading to missed business opportunities. They spent
approximately $10,300 for medical fees and medications. Finally, Homeowners incurred various
direct costs associated with the proceeding. Robert spent “approximately 1,800 hours” dealing
with the foreclosure case, including consultations with attorneys and CCCS, conducting research,
preparing documents, and making court appearances, resulting in $120,000 in lost income.
Homeowners also spent $22,650 in legal consultation fees and over $2600 for “copying ***, office
supplies, postage, parking, traveling, etc.”
¶ 26 PNC and Kondaur each filed motions to dismiss Homeowners’ claims in April 2017
pursuant to 735 ILCS 5/2-619.1 (West 2016). Regarding Kondaur, on January 29, 2018, the trial
court dismissed all counts with prejudice except Homeowners’ claim (under their RESPA and
“Dodd-Frank” counts) that Kondaur violated 12 C.F.R. § 1024.41 by failing to timely respond to
Homeowners’ loan modification applications. On February 7, 2018, the court granted PNC’s
motion to dismiss, dismissing all claims with prejudice.
¶ 27 On February 22, 2019, the trial court denied Homeowners’ motion for sanctions against
Kondaur. In its written order, the court stated:
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2020 IL App (2d) 170817-U“(1) [Rule 219(c)] sanctions are not warranted because no allegations of failure to
comply w[ith] discovery order, and no proof of unreasonable failure to comply w[ith]
discovery rules[.]
(2) Rule 137 sanctions are not warranted because [Homeowners] failed to prove
that Kondaur or its attorneys made false or misleading statements w[ithout] reasonable
cause for purpose of undue delay or harassment [and] because [Homeowners] failed to
prove any basis for awarding fees or costs.”
¶ 28 Finally, on August 7, 2019, Kondaur filed its motion for judgment on the pleadings as to
Olga’s remaining RESPA claims (alleging violation of 12 C.F.R. § 1024.41) under 735 ILCS 5/2-
615(e) (West 2018), asserting that she lacked standing to seek relief under RESPA because she
was not a “borrower.” On November 14, 2019, the trial court granted Kondaur’s motion for
judgment on the pleadings, dismissing Olga’s remaining claims.
¶ 29 The only remaining claims thus were Robert’s RESPA and “Dodd-Frank” counts (alleging
violation of 12 C.F.R. § 1024.41). Homeowners filed a motion to voluntarily dismiss those counts,
which the trial court granted on February 20, 2020. Homeowners timely appealed.
¶ 30 II. ANALYSIS
¶ 31 Homeowners challenge four orders on appeal: (1) the order involuntarily dismissing the
claims against Kondaur; (2) the order dismissing all claims against PNC 3; (3) the order denying
Homeowners’ request for sanctions against Kondaur; and (4) the order dismissing Olga’s
surviving RESPA and “Dodd-Frank” claims against Kondaur. Because the factual allegations and
legal issues presented by Homeowners’ claims against PNC and Kondaur overlap significantly,
we review the trial court’s dismissal of those claims together.
3
Homeowners do not challenge dismissal of their UDTPA claim against PNC.
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2020 IL App (2d) 170817-U¶ 32 As a preliminary matter, we note that Homeowners’ brief, filed pro se, is deficient in many
respects. Illinois Supreme Court Rule 341 provides that the argument section of an appellant’s
brief “shall contain the contentions of the appellant and the reasons therefor, with citation of the
authorities and the pages of the record relied on” and that “[p]oints not argued are forfeited[.]” Ill.
S. Ct. R. 341(h)(7) (eff. May 25, 2018). In accordance with the mandate of Rule 341(h)(7), “[a]
reviewing court is entitled to have issues clearly defined with pertinent authority cited and coherent
arguments presented; arguments inadequately presented on appeal are [forfeited].” Holmstrom v.
Kunis, 221 Ill. App. 3d 317, 325 (1991). The appellate court is not a depository in which the
appellant may foist the burden of research and argument. People v. Trimble, 181 Ill. App. 3d 355,
356 (1989). Ignoring Rule 341(h)(7)’s admonition by addressing the case on the merits would
require the appellate court to be an advocate for defendant’s position on the issues he raises and to
judge the correctness of that position. Id. Bases for concluding that an argument is forfeited include
citation to irrelevant authority and failure to present well-reasoned argument. Trilisky v. City of
Chicago, 2019 IL App (1st) 182189, ¶ 54.
¶ 33 Homeowners’ brief is replete with conclusory factual assertions without reference to the
pleadings, contentions unsupported by citation to specific statutory or regulatory provisions or to
specific explanations of case law, and statements unsupported by coherent legal argument. A
pro se litigant is held to the same standard as a licensed attorney, and noncompliance with our
supreme court’s rules will not be excused. See Ammar v. Schiller, DuCanto & Fleck, LLP, 2017
IL App (1st) 162931, ¶ 16. As necessary, we point out arguments Homeowners have forfeited for
failure to comply with Rule 341(h)(7).
¶ 34 A. The Trial Court’s Dismissal of Homeowners’
Third-Party Complaints Against Kondaur and PNC
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2020 IL App (2d) 170817-U¶ 35 The trial court dismissed Homeowners’ claims pursuant to section 2-615 of the Code in
part and section 2-619 of the Code in part. Dismissal of claims under either section is reviewed
de novo. Rehfield v. Diocese of Joliet, 2021 IL 125656, ¶ 23. When reviewing a 2-615 motion, a
court must view the facts alleged in the pleading in the light most favorable to the complainant,
take all well-pleaded facts as true, and determine whether they sufficiently state a cause of action
upon which relief may be granted. Id. ¶ 20. “Well-pled facts are specific allegations of fact that
bring a complaint within a recognized cause of action; mere conclusory allegations unsupported
by specific facts will not suffice.” (Internal quotation marks omitted.) Porter v. Cub Cadet LLC,
2020 IL App (2d) 190823, ¶ 10.
¶ 36 A section 2-619 motion admits the legal sufficiency of a claim but raises an affirmative
matter that defeats the claim. Rehfield, 2021 IL 125656, ¶ 21. The movant bears the burden of
establishing the existence of the affirmative matter, either by showing it is apparent on the face of
the claim or by providing supporting evidence such as affidavits or other materials. Id. ¶¶ 21-22.
Once the movant has met this burden, the burden shifts to the nonmovant to refute the affirmative
matter or establish that an essential element requires the movant to prove a material fact. Id. ¶ 22.
Facts asserted by the movant via supporting evidence must be refuted by the nonmovant or else
deemed admitted, but they are still viewed in the light most favorable to the nonmovant. Id. Where
a trial court grants a section 2-619 motion to dismiss, a reviewing court must determine (1) whether
there was a genuine issue of material fact and, if none, (2) whether dismissal was proper as a matter
of law. Id. ¶ 23.
¶ 37 1. Claims Properly Dismissed by the Trial Court
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2020 IL App (2d) 170817-U¶ 38 The following claims were sufficiently argued in Homeowners’ brief to permit our review.
The trial court ostensibly dismissed with prejudice each claim pursuant to section 2-615 of the
Code.
¶ 39 a. Breach of Contract
¶ 40 Homeowners pled nine total counts alleging breach of contract premised on various
violations of HUD and RESPA regulations by both PNC and Kondaur. The counts alleged breach
of the mortgage contract itself as well as other supporting documents and disclosure forms. The
trial court dismissed these claims, in part, based on Homeowners’ inability to demonstrate that
they substantially performed under the contract. We conclude that the trial court’s ruling was
correct and therefore address all breach of contract counts together.
¶ 41 “[T]o establish a breach of contract, the plaintiff must prove (1) a valid and enforceable
contract exists, (2) he substantially performed, (3) the defendant committed a breach, and
(4) resulting damages. Rocha v. FedEx Corp., 2020 IL App (1st) 190041, ¶ 95.
¶ 42 Here, Section 9(a)(i) of the mortgage contract, attached to Homeowners’ pleadings,
specifically provides: “Borrower defaults by failing to pay in full any monthly payment required
by this Security Instrument prior to or on the due date of the next monthly payment.” Homeowners
acknowledge in their brief that they stopped making monthly payments in April 2012. This default
precluded Homeowners from arguing that they substantially performed.
¶ 43 Homeowners, citing without discussing a slew of cases from other jurisdictions, appear to
argue that their default was not a material breach because the Lenders failed to comply with federal
regulations as required by the mortgage contract. Homeowners insist that “[t]he Mortgage
stipulates procedures in case of a borrower’s default” with which the Lenders failed to comply.
We note, however, that a borrower may not bring private suit against a lender alleging the lender
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2020 IL App (2d) 170817-Uhas violated HUD regulations unless the mortgage contract specifically incorporates the lender’s
compliance with HUD regulations into its terms. See Hayes v. M & T Mortgage Corp., 389 Ill.
App. 3d 388, 391 (2009). The mortgage contract must demonstrate “an intention to completely
adopt” federal regulations, “not merely require compliance with specified portions.” Id. at 390-91.
¶ 44 Hayes squarely addresses this issue. In Hayes, the appellate court concluded that general
references to HUD regulations in a mortgage contract did not sufficiently incorporate those
regulations into the contract. Hayes, 389 Ill. App. 3d at 390-91. The provision at issue in Hayes
provided as follows:
“In many circumstances regulations issued by the Secretary will limit Lender’s rights, in
the case of payment defaults, to require immediate payment in full and foreclosure if not
paid. This Security Instrument does not authorize acceleration or foreclosure if not
permitted by regulations of the Secretary.” (Internal quotation marks omitted.) Hayes, 389
Ill. App. 3d at 389.
After the homeowner defaulted, she filed a breach of contract claim for damages based on the
lender’s purported failure to comply with applicable HUD regulations. The trial court dismissed
the complaint. The appellate court affirmed, concluding that the proffered language did not reflect
an intent to make each HUD regulation enforceable under the contract. Id. at 391. Rather, the cited
provision “reflect[ed] only an acknowledgment that the lender’s foreclosure rights under the
mortgage [were] subordinate to applicable HUD regulation.” Id. Thus, the lender’s alleged breach
of HUD regulations did not create a cause of action for the homeowner. Id.¶ 45 Homeowners state in their brief, in conclusory fashion, “Borrower’s default of HUD-FHA
loan is not a material breach of contract because the clear language of the loan specifies steps
lender must take in the case of default.” However, they fail to identify specific language in the
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2020 IL App (2d) 170817-Ucontract which shows “an intention to completely adopt” any of the regulations Homeowners
alleged PNC and Kondaur violated. Id. Our review of the record discloses the following potentially
relevant provisions in the contract: (1) “Secretary” is defined as Secretary of Housing and Urban
Development; (2) “Default. Lender may, except as limited by regulations issued by the Secretary,
in the case of payment defaults, require immediate payment in full of all sums secured by this
Security Instrument”; and (3) “Regulations of HUD Secretary. In many circumstances regulations
issued by the Secretary will limit Lender’s rights, in the case of payment defaults, to require
immediate payment in full and foreclose if not paid. This Security Instrument does not authorize
acceleration or foreclosure if not permitted by regulations of the Secretary.”
¶ 46 The third provision in the preceding sentence is identical to the provision discussed in
Hayes, and the second provision is redundant. As a matter of law, this language did not give
Homeowners a private right of action to enforce the Lenders’ alleged violations of federal
regulations. Because Homeowners do not point to any other language contained in the mortgage
contract that could have created a private right of action, we conclude that Homeowners failed to
establish that one exists.
¶ 47 We further note that Homeowners’ citation to Hammer v. Residential Credit Solutions,
Inc., No. 13 C 6397, 2015 WL 7776807 (N.D. Ill. Dec. 3, 2015), and Ploog v. HomeSide Lending,
Inc., 209 F. Supp. 2d 863 (N.D. Ill. 2002), is unavailing. Neither case involved a borrower alleging
breach of contract based on a lender’s violation of RESPA requirements or regulations. See
Hammer, No. 13 C 6397, 2015 WL 7776807, at *4 (analyzing lender’s argument that it did not
breach contract because no enforceable agreement was formed); Ploog, 209 F. Supp. 2d at 874(analyzing borrower’s allegation that lender breached contract by paying taxes from escrow
account on property she did not own).
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2020 IL App (2d) 170817-U¶ 48 Since Homeowners cannot show that the Lenders were contractually obligated to follow
applicable regulations, they cannot establish that their default was not material. Thus, Homeowners
are unable to show that they satisfied the second element of a breach of contract claim. The trial
court did not err in dismissing these claims.
¶ 49 b. Fair Debt Collection Practices Act (FDCPA)
¶ 50 Homeowners brought claims against both PNC and Kondaur under the FDCPA. The trial
court dismissed both claims on the bases that both PNC and Kondaur owned the debt when they
tried to collect and that neither PNC nor Kondaur qualified as a “debt collector” under the FDCPA
pursuant to Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1723 (2017). Homeowners’
contend that the Lenders each qualified as a “debt collector” under the FDCPA.
¶ 51 The FDCPA defines “debt collector” as “any person who uses any instrumentality of
interstate commerce or the mails in any business the principal purpose of which is the collection
of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or
due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6) (2012). In Santander, the
Supreme Court held that the defendant purchaser of defaulted auto loans did not qualify as a “debt
collector” under section 1692a(6) because it had not regularly sought to collect debts “owed ***
another.” Santander, 137 S. Ct. at 1721, 1726. The Court explained, “under the definition at issue
before us you have to attempt to collect debts owed another before you can ever qualify as a debt
collector.” (Emphasis in original.) Id. at 1724.
¶ 52 Homeowners quote, without providing any analysis, two federal decisions to support their
assertion that the trial court erred. See Bridge v. Ocwen Federal Bank, FSB, 681 F.3d 355, 360
(6th Cir. 2012) (“Although there is no statutory definition of ‘loan servicer’ under the Act, a loan
servicer will become a debt collector under § 1692a(6)(F)(iii) if the debt was in default or treated
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2020 IL App (2d) 170817-Uas such when it was acquired.”); Schlosser v. Fairbanks Capital Corp., 323 F.3d 534, 536 (7th Cir.
2003) (“[T]he Act treats assignees as debt collectors if the debt sought to be collected was in
default when acquired by the assignee, and as creditors if it was not.”). Quite apart from
Homeowners’ failure to analyze these cases, we note that they appear to be abrogated by the
Supreme Court’s Santander decision and we decline to consider them.
¶ 53 Reviewing the pleadings, we conclude that Homeowners failed to sufficiently allege that
either PNC or Kondaur (1) “uses any instrumentality of interstate commerce or the mails in any
business the principal purpose of which is the collection of any debts” or (2) “regularly collects or
attempts to collect *** debts owed or due *** another.” 15 U.S.C. § 1692a(6) (2012).
Homeowners did state in their pleadings that PNC and Kondaur, respectively, collected payments
for debt “owed to National City” and “acted as a third-party debt collector,” but failed to support
these statements with specific facts to establish that either Kondaur or PNC attempted to collect
on Homeowners’ loan as a third-party. To the contrary, Homeowners acknowledge in their brief
that PNC was a “mortgagee” and that Kondaur “purchased the loan in foreclosure.” “[M]ere
conclusory allegations unsupported by specific facts will not suffice.” Porter, 2020 IL App (2d)
190823, ¶ 10. Thus, the pleadings were facially deficient, and the trial court did not err when it
dismissed Homeowners’ FDCPA claims.
¶ 54 We note separately the Homeowners’ complaint that “[t]he court relied on a case law not
previously cited by PNC in its Reply.” To the extent this statement is intended to undermine the
trial court’s dismissal of Homeowners’ FDCPA claim against PNC, it is unsupported by additional
argument or citation to authority, thus it is forfeited pursuant to Rule 341(h)(7).
¶ 55 c. Illinois Fairness in Lending Act (IFLA)
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2020 IL App (2d) 170817-U¶ 56 Homeowners next contend the trial court erred in denying their IFLA claims for failure to
make sufficient factual allegations. Section 3 of the IFLA provides,
Ҥ 3. No financial institution, in connection with or in contemplation of any loan to any
person, may:
***
(d) Utilize lending standards that have no economic basis and which are discriminatory in
effect.
(e) Engage in equity stripping or loan flipping.” 815 ILCS 120/3(d), (e) (West 2012).
Section 2 provides,
“ ‘Loan flipping’ means to assist a person in refinancing a loan secured by the person’s
principal residence for the primary purpose of receiving fees related to the refinancing
when (i) the refinancing of the loan results in no tangible benefit to the person and (ii) at
the time the loan is made, the financial institution does not reasonably believe that the
refinancing of the loan will result in a tangible benefit to the person.” Id. § 2(e).
First, Homeowners argue that PNC denied them modification due to Robert’s credit score, and
thus that decision had “no economic basis.” See Id. § 3(d). Second, Homeowners argue “Kondaur
used Chois’ age to steer them from modification into paying off the loan,” thus Kondaur engaged
in age discrimination and impermissible “loan flipping.” See Id. §§ 2(e), 3(e).
¶ 57 Homeowners’ claims are based solely on conclusory allegations. They pleaded no specific
facts to show that PNC’s purported denial of a loan modification on the basis of Robert’s credit
score had “no economic basis and [was] discriminatory in effect.” Id. § 3(d). Nor did they plead
specific facts to show that Kondaur’s purported denial of a loan modification was based on
Homeowners’ ages or that Kondaur’s conduct amounted to “assist[ing] a person in refinancing a
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2020 IL App (2d) 170817-Uloan secured by the person’s principal residence for the primary purpose of receiving fees related
to the refinancing.” Id. §§ 2(e), 3(d). The trial court did not err in dismissing Homeowners’ IFLA
claims.
¶ 58 d. “Promissory fraud and fraudulent scheme”
¶ 59 Homeowners next argue that the trial court erred in dismissing their promissory fraud and
fraudulent scheme claims against both PNC and Kondaur. To prevail on a claim of common law
fraud, a plaintiff must show the following: “(1) a false statement of fact by the defendant, (2) made
with the knowledge that the statement was false; (3) the defendant intended that the statement
would induce the plaintiff to act; (4) the plaintiff justifiably relied upon the statement; and (5) the
plaintiff suffered damages arising from that reliance.” Abazari v. Rosalind Franklin University of
Medicine & Science, 2015 IL App (2d) 140952, ¶ 14. Under the Illinois promissory fraud doctrine,
a plaintiff can assert a fraudulent promise to perform a future act as the basis for a fraud claim if
the promise was part of a scheme to defraud. Gagnon v. Schickel, 2012 IL App (1st) 120645, ¶ 33.
¶ 60 The trial court dismissed the claims against the Lenders on various grounds, including,
essentially, that Homeowners failed to sufficiently allege that either party made knowingly false
promises to consider their applications. We agree.
¶ 61 Homeowners assert, in conclusory fashion, that both parties communicated the intent to
evaluate their loan modification applications, though intending not to evaluate these applications
or to make offers for loan modification.
¶ 62 Specifically, Homeowners contend that Kondaur made false promises on its website, and
through its representatives, that it would help borrowers keep their properties. They fail to explain
how Kondaur’s representations amount to an unambiguous promise to help Homeowners or how
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2020 IL App (2d) 170817-Uthe representations were demonstrably false. The failure to develop this argument violates Rule
341(h)(7). Thus, this argument is forfeited.
¶ 63 Homeowners’ claim with respect to PNC is somewhat more developed. They claim
specifically that PNC (1) filed its foreclosure action on the same day it requested additional
documentation for Homeowners’ application in September 2012, (2) filed a motion for summary
judgment in January 2013 while still representing to Homeowners that it was willing to consider
their application, (3) moved to stay Homeowners’ bankruptcy proceeding in May 2013 in order to
expedite the foreclosure, and (4) misrepresented to Homeowners that it still owned the mortgage
months after selling it in October 2013. These facts, according to Homeowners, demonstrate that
PNC never intended to consider their application, thus its promise to do so was knowingly false.
¶ 64 We find these allegations insufficient as well. Homeowners assert no specific facts to show
that PNC would not have considered a complete application had one been submitted. To the
contrary, Homeowners acknowledge that PNC sent letters confirming it would evaluate their
submitted applications, as well as requests for additional documents. Meanwhile, they also
acknowledge that PNC did not initiate foreclosure proceedings until four or five months after
Homeowners defaulted on their mortgage, and nothing in their pleadings suggests PNC’s legal
actions were out of the ordinary following a borrower’s default. We thus cannot conclude the trial
court erred in dismissing Homeowners promissory fraud and fraudulent scheme claim against
PNC.
¶ 65 2. Claims Forfeited Under Rule 341(h)(7)
¶ 66 a. Illinois Consumer Fraud Act (ICFA)
¶ 67 The trial court dismissed Homeowners claims against both PNC and Kondaur under ICFA.
To state a claim under ICFA, a plaintiff must allege (1) the defendant engaged in a deceptive act
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2020 IL App (2d) 170817-Uor practice, (2) the defendant intended that the plaintiff rely on the deception, (3) the deception
occurred in the course of conduct involving trade or commerce, (4) the plaintiff suffered actual
damage, and (5) the defendant’s deception proximately caused plaintiff’s damage. 815 ILCS
505/2, 10a(a) (West 2012); Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill. 2d 100,
190 (2005). To establish proximate causation, a plaintiff must plead facts to show he was actually
deceived by a purported misrepresentation. See Avery, 216 Ill. 2d at 199. Further, proximate cause
requires cause-in-fact, or “but for” causation. Price v. Philip Morris, Inc., 219 Ill. 2d 182, 269
(2005). Unfair conduct is actionable under ICFA, and a plaintiff may show conduct is unfair
because it offends public policy. Robinson v. Toyota Motor Credit Corp., 201 Ill. 2d 403, 417
(2002).
¶ 68 Homeowners argue that PNC violated ICFA by failing to consider their applications for a
loan modification as required by federal law and by filing for foreclosure in September 2012
despite their submission of a loan modification application in August 2012, citing Griffin v. U.S.
Bank National Ass’n, No. 15 CV 6871, 2016 WL 3671450, at *4 (N.D. Ill. July 11, 2016), and
Boyd v. U.S. Bank, N.A., ex rel. Sasco Aames Mortgage Loan Trust, Series 2003-1, 787 F. Supp.
2d 747, 754 (N.D. Ill. 2011). While we are of course not bound by the federal courts’ interpretation
of ICFA, we note also that Homeowners misrepresent the court’s holding in Griffin. The Griffin
court, in dicta, stated: “Plaintiff’s allegations that [the defendant] filed for foreclosure without
reviewing him for loss mitigation options and conditioned the dismissal of the foreclosure
complaint on plaintiff’s dismissal of his counterclaim are sufficient to plead an ICFA claim for
unfairness.” (Emphasis added.) Griffin, 2016 WL 3671450, at *4. Homeowners omitted the
italicized portion in their brief, which is significant because they do not allege PNC attempt to
obtain a dismissal of Homeowners’ third-party complaint by improper means.
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2020 IL App (2d) 170817-U¶ 69 Homeowners’ claims that PNC refused to consider their applications is deficient. They
assert that PNC told them repeatedly that they needed to submit additional documentation to
complete their application, but offer only conclusory allegations that PNC had no intention to offer
them a loan modification. In the absence of specific facts, bare allegations that PNC acted
“deceitfully” do not suffice. For the same reasons, Homeowners’ allegations against Kondaur that
it, too, had no intention to offer them a loan modification and that it acted deceitfully are
insufficient.
¶ 70 Homeowners further contend that the trial court erred when it dismissed their ICFA claim
pertaining to PNC’s and Kondaur’s communications, respectively, offering to help them obtain a
loan modification, as well as to representations on Kondaur’s website that it would help borrowers
avoid foreclosure. The trial court characterized these communications as “puffery.” See Avery,
216 Ill. 2d at 173 (stating that “puffing” cannot form the basis of an ICFA claim); Century
Universal Enterprises, Inc. v. Triana Development Corp., 158 Ill. App. 3d 182, 203 (1987)
(concluding defendant’s statement that it would “use its best efforts in the management, operation
and control of said Joint Venture Project” amounted to “puffery” insufficient to support fraud
claim). Homeowners cite no authority to refute the trial court’s characterization of those
communications and fail to develop this argument.
¶ 71 Finally, Homeowners state that “Kondaur used deceptive, false and unethical tactics to
defraud [them] of their rights (lawful loss mitigation process, proper loan servicing, accurate fee
charges, anti-steering protection, correct escrow account calculations).” But they again fail to point
to specific factual allegations in their complaint to support their bare assertions that Kondaur’s
conduct amounted to cognizable deceptive or fraudulent acts under ICFA.
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2020 IL App (2d) 170817-U¶ 72 For the reasons stated, Homeowners failed to adequately develop and support their
argument that the trial court erred when it dismissed their ICFA claims in violation of Rule
341(h)(7). Thus, Homeowners forfeit this argument.
¶ 73 b. Real Estate Settlement Procedures Act (RESPA) and RESPA Regulations
¶ 74 The trial court dismissed with prejudice all of Homeowners’ claims predicated on the
Lenders’ violations of RESPA and RESPA regulations, with the exception of those claims alleging
Kondaur violated 12 C.F.R. § 1024.41, which Homeowners later voluntarily dismissed.
Homeowners challenge the trial court’s involuntary dismissal ruling. As to PNC, Homeowners
assert that (1) PNC charged incorrect amounts for their escrow account, (2) PNC failed to provide
timely notice of sale, (3) PNC failed to respond to their “QWRs/RFIs,” (4) PNC failed to notify
them before “force placing hazard insurance,” and (5) PNC failed to comply with loss mitigation
procedures. As to Kondaur, Homeowners assert that (1) “Kondaur was obligated to respond to
QWRs and RFIs under RESPA” and (2) “Kondaur violated RESPA provisions related to escrow
account, QWR; and ‘any other obligation’, including loss mitigation, anti-steering and loan
transfer.” Homeowners, however, fail to adequately cite to authority establishing their right to
relief and do not attempt to explain how the trial court erred or otherwise develop their argument
in violation of Rule 341(h)(7). Thus, Homeowners forfeit this argument.
¶ 75 c. Breach of Fiduciary Obligations Act Claims
¶ 76 Homeowners argue the trial court erred in dismissing their Fiduciary Obligations Act
claims against both PNC and Kondaur on the grounds that neither party was in a fiduciary
relationship with Homeowners. Homeowners fail to provide a citation for their cause of action
under the Fiduciary Obligations Act or otherwise develop their argument in violation of Rule
341(h)(7). The only statutory citation they provide in either their briefs or in their underlying
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2020 IL App (2d) 170817-Upleadings is to the definition of “fiduciary” under the Fiduciary Obligations Act. See 760 ILCS
65/1 (West 2012). They also cite inapposite case law, such as Johnson v. Maki & Associates, 289
Ill. App. 3d 1023, 1028 (1997), which stands for the proposition that a real estate broker holding
earnest money in escrow owes a fiduciary duty to home purchasers. Thus, Homeowners forfeit
this argument.
¶ 77 d. Promissory Estoppel
¶ 78 Homeowners argue the trial court erred in dismissing their promissory estoppel claims
against PNC and Kondaur on the ground that Homeowners failed to allege either party made an
unambiguous promise. Homeowners contend that their pleadings sufficiently show that PNC and
Kondaur, respectively, made unambiguous promises to consider their loan modification
applications. These bare assertions are unsupported by reference to any specific factual assertions
or case law supporting their position and thus violate Rule 341(h)(7). Thus, Homeowners forfeit
this argument.
¶ 79 e. “Violations of Dodd-Frank Act and CFPB”
¶ 80 The trial court’s order dismissing most of the allegations against Kondaur under
Homeowners’ “Dodd-Frank” count listed eight separate bases for finding the claim insufficient. 4
4
The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act)
established the Bureau of Consumer Financial Protection to “regulate the offering and provision
of consumer financial products or services under the Federal consumer financial laws.” Dodd-
Frank Wall Street Reform and Consumer Protection Act, Pub. Law No. 111-203, 124 Stat 1376
(2010). The Bureau promulgates rules which impose various requirements on mortgage servicers.
See 12 C.F.R. § 1001.1 et seq. (2012).
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2020 IL App (2d) 170817-UHomeowners fail to respond to any of the court’s reasons for dismissal with reasoned analysis.
Instead, they merely restate allegations in the complaint, stating unsupported legal contentions and
listing numerous cases without explaining how they apply to their case. Homeowners argue the
trial court erred for the following reasons: (1) the court’s conclusion that “error resolution and
request for information process did not apply because the loan was in foreclosure” was erroneous,
citing “12 C.F.R. 1024” generally; (2) the court’s conclusion that there is no private right of action
for violation of loss mitigation rules was erroneous, citing 12 C.F.R. 1024.41; (3) the court’s
conclusion that Kondaur, an assignee, was not subject to liability under 12 C.F.R. 1026.36 for
violation of payoff demand requirements was erroneous because “Kondaur was obligated to
comply with all requirements of Dodd-Frank and CFPB rules”; and (4) the court’s dismissal of
“abusive practices, anti-steering and fee regulations claims as not substantiated” was erroneous
because Homeowners “pled in detail” how Kondaur violated applicable requirements.
Homeowners also provide numerous string citations to cases without conducting any type of
analysis. Homeowners fail to support their contentions with specific citation to authority or to
develop their arguments with reference to the authority cited in violation of Rule 341(h)(7). Thus,
Homeowners forfeit this argument.
¶ 81 f. Equal Credit Opportunity Act (ECOA) Regulations
¶ 82 Homeowners argue the trial court erred in dismissing their ECOA claims against Kondaur
in one sentence: “The court erred in dismissing the claim for not adequately alleging age
discrimination but ignored that the claim is based on Kondaur’s violation of Chois’ protected rights
under Regulation B and 12 CFR 1002.” They fail to develop their argument in violation of Rule
341(h)(7). Thus, Homeowners forfeit this argument.
¶ 83 g. Intentional Infliction of Emotional Distress (IIED)
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2020 IL App (2d) 170817-U¶ 84 Homeowners argue the trial court erred in dismissing their IIED claim against Kondaur
because it incorrectly concluded their allegations did not rise to the level of “extreme and
outrageous” conduct. They cite just two inapposite cases, neither of which addresses IIED. See
Stenwall v. Bergstrom, 398 Ill. 377 (1947) (reversing dismissal of a complaint seeking partition
and an accounting of inherited land); Barzowski v. Highland Park State Bank, 371 Ill. 412 (1939)
(affirming dismissal of a complaint seeking to quiet title). Homeowners fail to provide citation to
relevant authority and to develop their argument in violation of Rule 341(h)(7). Thus, Homeowners
forfeit this argument.
¶ 85 h. Racketeer Influenced and Corrupt Organizations Act (RICO)
¶ 86 Homeowners argue the trial court erred in dismissing their RICO claims against Kondaur
merely by stating in conclusory fashion that Kondaur engaged in a scheme to defraud, had intent
to defraud, and used the mails or wire communication in furtherance of the scheme to defraud.
They also cite case law and to the record without any explanation. Homeowners fail to develop
their argument in violation of Rule 341(h)(7). Thus, Homeowners forfeit this argument.
¶ 87 B. The Trial Court’s Order Denying Homeowners’
Motion for Sanctions Against Kondaur
¶ 88 The Homeowners next challenge the trial court’s denial of their motion for sanctions
against Kondaur pursuant to Rules 137 and 219(c). Rule 137, in pertinent part, provides that an
attorney of record is required to sign any pleading, motion, or other document. Ill. S. Ct. R. 137(a)
(eff. July 1, 2013). This signature certifies that the attorney “has read the pleading, motion or other
document; that to the best of his knowledge, information, and belief formed after reasonable
inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for
the extension, modification, or reversal of existing law, and that it is not interposed for any
improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost
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2020 IL App (2d) 170817-Uof litigation.” Id. Further, the court may impose an appropriate sanction on an attorney or a party
for the failure to comply with this rule. Id. Rule 219(c) provides that a court may, on motion,
provide relief if a party unreasonably fails to comply with a discovery rule or with an order entered
under court rules. Ill. S. Ct. R. 219(c) (eff. July 1, 2002).
¶ 89 A trial court’s ruling on a motion for sanctions is reviewed for an abuse of discretion. Direct
Auto Insurance Co. v. Bahena, 2019 IL App (1st) 172918, ¶ 35; Harris Trust & Savings Bank v.
Otis Elevator Co., 297 Ill. App. 3d 383, 394 (1998). An abuse of discretion occurs only when the
court’s ruling is arbitrary, fanciful, or unreasonable. Bahena, 2019 IL App (1st) 172918, ¶ 35.
Homeowners contend that the trial court abused its discretion when it denied their motion for
sanctions against Kondaur.
¶ 90 Specifically, Homeowners assert that counsel for Kondaur “fil[ed] pleadings based on false
information,” “provided false discovery responses,” “failed to conduct a basic search of Kondaur’s
electronically stored records,” and “failed to make a reasonable inquiry into their client’s records
to uncover the truth of the matter and complete discovery responses in compliance with court
orders and instructions.” These allegations were premised on Homeowners’ underlying allegations
that they submitted a complete loan modification application to Kondaur and that Kondaur
repeatedly and falsely denied receiving a complete application, thus violating RESPA regulations.
They also incorrectly assert that “Kondaur *** was found in violations of loss mitigation
procedures under 12 CFR 1024.41 and RESPA” by the trial court. The record indicates that the
trial court denied Kondaur’s motion to dismiss Homeowners’ claims “solely with respect to the
allegations[ ] that Kondaur failed to respond to [Homeowners’] loss mitigation application within
the time required by 12 C.F.R. § 1024.41” and dismissed all other RESPA claims.
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2020 IL App (2d) 170817-U¶ 91 Homeowners fail to identify specific factual allegations in their motion for sanctions to
support their general allegations, fail to identify specific trial orders Kondaur allegedly violated,
and fail to cite to relevant authority to show how the trial court abused its discretion in violation
of Rule 341(h)(7). Thus, Homeowners forfeit this argument.
¶ 92 C. The Trial Court’s Order Dismissing Olga’s Remaining Claims
¶ 93 Finally, Homeowners contend that the trial court abused its discretion when it granted
Kondaur’s section 2-615 motion to dismiss Olga’s remaining claims due to lack of standing.
Dismissal of claims under section 2-615 is reviewed de novo. Rehfield, 2021 IL 125656, ¶ 23.
When reviewing a 2-615 motion, a court must view the facts alleged in the pleading in the light
most favorable to the complainant, view all well-pleaded facts as true, and determine whether they
sufficiently state a cause of action upon which relief may be granted. Id. ¶ 20. “Well-pled facts are
specific allegations of fact that bring a complaint within a recognized cause of action; mere
conclusory allegations unsupported by specific facts will not suffice.”
¶ 94 Section 2605 of RESPA imposes various requirements on federally related mortgage
lenders and provides a private right of action to a “borrower” in the event the lender fails to comply
with any provision of the section. 12 U.S.C. § 2605 (West 2012); Keen v. Helson, 930 F.3d 799,
802 (6th Cir. 2019); see also 12 C.F.R. § 1024.41 (West 2014) (“A borrower may enforce the
provisions of this section pursuant to section 6(f) of RESPA (12 U.S.C. 2605(f)).”). A “borrower,”
in turn, means a person who is personally obligated under a “federally related mortgage loan” and
does not include one who merely signs a mortgage. Keen, 930 F.3d at 804, 806 (holding that home
purchaser’s wife, who signed the mortgage, but not the loan, was not a “borrower” under RESPA
and did not have private right of action).
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2020 IL App (2d) 170817-U¶ 95 Homeowners do not contend that Olga signed the note. Instead, they argue that she
qualifies as a “borrower” because she signed the mortgage. Applying Keen, this action was
insufficient to confer standing to enforce RESPA requirements, thus Olga did not have a private
right of action.
¶ 96 Alternatively, Homeowners argue that Kondaur should have been estopped from asserting
that Olga did not have a private right of action. A party asserting equitable estoppel must show the
following elements:
“(1) [T]he other person misrepresented or concealed material facts; (2) the other person
knew at the time he or she made the representations that they were untrue; (3) the party
claiming estoppel did not know that the representations were untrue when they were made
and when that party decided to act, or not, upon the representations; (4) the other person
intended or reasonably expected that the party claiming estoppel would determine whether
to act, or not, based upon the representations; (5) the party claiming estoppel reasonably
relied upon the representations in good faith to his or her detriment; and (6) the party
claiming estoppel would be prejudiced by his or her reliance on the representations if the
other person is permitted to deny the truth thereof.” DeLuna v. Burciaga, 223 Ill. 2d 49,
82–83 (2006).
Further, the party must establish by clear and convincing evidence that the elements have been
met. In re Scarlett Z.-D., 2015 IL 117904, ¶ 26. A trial court’s ruling on an equitable estoppel
defense is reviewed de novo if it is based on a legal conclusion, otherwise it will not be disturbed
unless it is against the manifest weight of the evidence. Id.¶ 97 Homeowners fail to point to specific facts to show that all of the elements of estoppel have
been satisfied. Rather, they insist that Kondaur should be estopped from asserting Olga’s lack of
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2020 IL App (2d) 170817-Ustanding because it failed to raise the issue until several years after becoming a party to the
litigation, adding, “Through its inconsistent actions carried through by different attorneys since
2014, Kondaur had wasted court’s and Chois’ time and resources.” Assuming arguendo Kondaur’s
effort to raise the issue was untimely, Homeowners fail to explain how Kondaur “misrepresented
or concealed material facts” relevant to Olga’s standing, how Homeowners detrimentally relied on
the alleged misrepresentation, or how Homeowners would be prejudiced by Kondaur’s assertion
that Olga lacked standing. DeLuna, 223 Ill. 2d at 82-83. Moreover, that Robert’s and Olga’s claims
are identical and were pled together belies any argument that Kondaur’s delay prejudiced Olga, or
otherwise wasted time or resources. Homeowners would have expended the same effort pursuing
their claims solely in Robert’s name. Homeowners’ failure to support their estoppel claim violates
Rule 341(h)(7), and Homeowners forfeit this argument.
¶ 98 III. CONCLUSION
¶ 99 For the reasons stated, we affirm the judgments of the circuit court of Lake County.
¶ 100 Affirmed.
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