Wigod v. PNC Bank, N.A.
338 F. Supp. 3d 758
E.D. Ill.2018Background
- On August 31, 2016 Wigod applied to PNC for a mortgage loan modification; PNC requested additional information on October 12.
- Wigod’s husband faxed the completing document on Saturday, October 22; the next business day was Monday, October 24. PNC denied the application by letter dated November 23, 2016.
- Wigod sued under the ECOA/Regulation B for (1) untimely adverse-action notice (Count I) and (2) an unlawfully vague adverse-action notice (Count II), and asserted state-law claims for breach of the covenant of good faith and an ICFA unfair-practices claim (Counts III–IV). She sought class treatment for late-notice, vague-notice, and an Illinois subclass.
- PNC moved for summary judgment on the ECOA late-notice claim, to dismiss the vague-notice and state-law claims, and to strike the class allegations.
- The court accepted PNC’s Local Rule 56.1 facts as undisputed at summary judgment because Wigod failed to comply with the local rule; factual disputes that were supported by the record were nevertheless viewed in Wigod’s favor at summary judgment.
- Court holdings: summary judgment denied on ECOA late-notice claim; ECOA vague-notice, good-faith covenant, and ICFA claims dismissed without prejudice; motion to strike class allegations as to the late-notice class denied.
Issues
| Issue | Wigod's Argument | PNC's Argument | Held |
|---|---|---|---|
| Whether PNC violated Regulation B by sending adverse-action notice more than 30 days after receiving a completed application (late-notice) | The application was completed when the fax arrived Oct. 22 (a calendar day), so the Nov. 23 denial was >30 days | Receipt should be measured by the first business day after arrival (Oct. 24), making the Nov. 23 notice timely (30 days) | Denied summary judgment for PNC; a reasonable jury could find receipt occurred Oct. 22 (calendar days govern) |
| Whether PNC’s denial language (“Income insufficient to support credit obligations”) violated Regulation B as an unlawfully vague notice | The language is ambiguous about whether it refers to present obligations or new credit | The language is substantially similar to CFPB sample Form C-1 and falls within the safe-harbor | Dismissed Count II: notice was within the safe-harbor and not impermissibly vague |
| Whether Wigod stated a breach of the implied covenant of good faith and fair dealing under the mortgage | PNC acted unreasonably by failing to provide timely and clear reasons for denial | PNC had no contractual duty to decide or respond to modification requests within 30 days; no bad-faith exercise of contractual discretion alleged | Claim dismissed: plaintiff did not allege misuse of contractual discretion tied to a mortgage provision |
| Whether Wigod stated an ICFA unfair-practices claim based on vague/late notices and oral disclosure of inputs | Practices were unfair, immoral, and caused substantial injury by preventing correction or verification | The vagueness claim fails; any lateness was de minimis; oral disclosure did not prevent correction and caused no substantial injury | Claim dismissed: allegations do not plausibly show unfairness or substantial consumer injury |
| Whether the proposed Late Notice Class should be stricken at this stage | Class is ascertainable, numerosity and predominance can be resolved after discovery; internal PNC data can show completion/notice dates | Class fails adequacy/typicality/predominance; statute of limitations and individualized issues (completeness/default) preclude class treatment; is a potential fail-safe class | Motion to strike class allegations denied as premature; class definition not facially defective and issues require discovery |
Key Cases Cited
- Dean v. United States, 556 U.S. 568 (presumption against reading different meanings into similar statutory terms)
- Ohio v. Akron Ctr. for Reproductive Health, 497 U.S. 502 (contrast in statutory language indicates different meanings for "days" and "business days")
- Houston v. Lack, 487 U.S. 266 ("received" occurs when a paper physically arrives, not when acted on)
- Treadway v. Gateway Chevrolet Oldsmobile Inc., 362 F.3d 971 (ECOA notice aims to let applicants correct misinformation)
- Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (predominance inquiry and cohesiveness requirement for Rule 23(b)(3))
- Mullins v. Direct Digital, LLC, 795 F.3d 654 (ascertainability and fail-safe class concept)
- Messner v. Northshore Univ. HealthSys., 669 F.3d 802 (class definition must avoid over-inclusiveness and manage predominance)
- McCaster v. Darden Rests., Inc., 845 F.3d 794 (discussion of fail-safe class and how to cure it)