In our July 2011 blog post, we reported about Judge William J.
Hibbler's decision to deny IndyMac Mortgage Servicers, FSB's (a division of
OneWest Bank, FSB) motion to dismiss a class action lawsuit related to its
failure to comply with guidelines established by the Home Affordable
Modification Program ("HAMP"). See Fletcher v. OneWest Bank, FSB, 2011 U.S. Dist. LEXIS
72562 (N.D. Ill. June 30, 2011) [an enhanced version of this opinion is available to lexis.com subscribers]
(order denying OneWest's motion to dismiss plaintiff's class action claims for
breach of contract, promissory estoppel and violations of the Illinois Consumer
Fraud and Deceptive Business Practices Act ("ICFA")). Abbey Spanier is lead
counsel in the Fletcher litigation.
On July 15, 2011, OneWest filed a motion to stay the Fletcher
litigation pending the U.S. Court of Appeal for the Seventh Circuit's decision
in Wigod v. Wells Fargo Bank, N.A., Appeal No. 11-1423 (7th Cir. Feb.
22, 2011). In Wigod, Judge Manning dismissed the plaintiff's claims
stemming from defendant Wells Fargo's alleged non-compliance with HAMP. Like
the Fletcher litigation, plaintiff Wigod's class action complaint
alleged violations of Illinois law under common-law contract and tort theories
and under the ICFA. The district court's reason for dismissing Wigod's
complaint was primarily that Wigod alleged Wells Fargo had violated HAMP, a
federal statute which it determined did not allow for a private right of
action. See Wigod v. Wells Fargo Bank, N.A., No. 10 CV 2348, 2011 WL
250501 (N.D. Ill. Jan. 25, 2011). After the Wigod appeal, OneWest argued
that a stay was warranted in the Fletcher litigation because the issues
raised were virtually identical to those pending before the Seventh Circuit
Court of Appeals. During a status hearing with the Court, plaintiff consented
to OneWest's motion for a stay so long as the status quo was to be maintained.
On March 7, 2012, the Seventh Circuit issued its opinion
in Wigod v. Wells Fargo Bank, N.A., No. 11-1423, 2012 U.S. App. LEXIS
4714 (7th Cir. March 7, 2012), a copy of which is located here [enhanced version]. Relying in part on Judge
Hibbler's June 30, 2011 opinion denying OneWest's motion to dismiss, the
Seventh Circuit reversed the judgment of the Wigod district court on
breach of contract, promissory estoppel, fraudulent misrepresentation and ICFA
claims. In its decision, the Seventh Circuit determined that plaintiff Wigod's
state law claims are not preempted or otherwise barred by federal law.
In light of the Seventh Circuit's decision reversing the
district court's decision in Wigod, the Court has lifted the
stay in the Fletcher litigation and the case will now proceed.
Abbey Spanier intends to aggressively litigate the Fletcher action and
seek compensation for homeowners who have been harmed by OneWest's deceptive
practices. If you have been harmed by OneWest's improper practices, please tell
us your story here.
In related news, on March 26, 2012, Judge Hibbler
unexpectedly passed away at the age of 65. Abbey Spanier passes along its
sincere condolences to Judge Hibbler's family, friends and colleagues at
the Northern District.
Spanier Rodd & Abrams, LLP, located in New York City, is a
well-recognized national class action and complex litigation law firm.
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