Thul v. Onewest Bank, Fsb

2013 WL 212926 (2013)

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Nature of the Case

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Facts

The attorneys are John Beisner and Jessica Miller of the Washington, D.C. office of Skadden, Arps and Andrew Fuchs of the Skadden firm's Chicago office. Ps alleged in their complaint that they were issued a 'trial period plan' (TPP) under which D agreed to modify their mortgage if they complied with the plan and the material representations in their application remained true. Ps alleged they had fully complied with the TPP and that there were no material changes in their financial status. After citing Seventh Circuit cases from 1991 and 2002 and district court cases from 1995 and 2004 for the proposition that contract and promissory estoppel claims cannot stand unless there is a promise, counsel went on to state that 'D never promised P that his mortgage would be modified . . . .' but rather represented that 'a modification would not occur if 'the Lender determined that P did not qualify of if he failed to meet any one of the requirements under the Plan.'' D argued that because 'D told P that he did not, in fact, qualify for a HAMP modification . . . the explicit precondition for a HAMP modification was not satisfied.' This amounted to an argument that D had complete discretion to determine whether to make a modification, had exercised its discretion by determining not to do so, and this was the end of the story. The Seventh Circuit rejected this same argument, or one indistinguishable from it, in Wigod. D failed to cite the Wigod case in its motion to dismiss.