Order Form (01/2005)

United States District Court, Northern District of Illinois

Name of Assigned Judge

or Magistrate Judge

Elaine E. Bucklo Sitting Judge if Other

than Assigned Judge

CASE NUMBER 12 C 851 DATE 6/19/2012

CASE

TITLE

Papalitsas vs. U.S. Bancorp d/b/a U.S. Bank, N.A., et al.

DOCKET ENTRY TEXT

Defendants’ motion to dismiss [15] is granted and plaintiffs’ complaint is dismissed.

O[ For further details see text below.] Notices mailed by Judicial staff.

STATEMENT

Plaintiffs Michael and Harriet Papalitsas filed a six-count complaint, alleging that defendants violated

Illinois and federal law when U.S. Bank denied plaintiffs’ final Home Affordable Modification Program

(“HAMP”) modification agreement. The complaint includes counts for breach of contract, breach of implied

covenant of good faith and fair dealing, promissory estoppel, unjust enrichment/restitution, violation of the

Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS § 505/2 et seq., and violation of the

Equal Credit Opportunity Act, 15 U.S.C. § 1691 et seq. Defendants have moved to dismiss the complaint

and for the reasons given below the motion is granted.

According to plaintiffs, they entered into a HAMP trial period plan with U.S. Bank1 after the Circuit

Court of Cook County entered a judgement of foreclosure against them. Under the terms of the agreement

governing the trial period plan, U.S. Bank agreed that if plaintiffs successfully completed the trial period

plan, U.S. Bank would offer them a permanent HAMP modification. The complaint alleges that U.S. Bank

denied plaintiffs’ permanent HAMP modification even though plaintiffs had successfully completed the trial

period plan. 

The gravamen of defendants’ argument is that U.S. Bank did, in fact, offer plaintiffs a final HAMP

modification agreement but that plaintiffs rejected U.S. Bank’s proposed terms by demanding other terms. 

Indeed, plaintiffs plead in their complaint that U.S. Bank offered them a permanent modification after they

made six monthly payments and completed a credit counseling program under the trial period plan. (Compl.,

at ¶ 27). Plaintiffs also attached to their complaint a copy of the unsigned final HAMP modification

agreement (“unsigned offer”) that U.S. Bank sent to them. (Compl. Ex. G). But the version of the final

modification agreement that plaintiffs ultimately signed and returned to U.S. Bank (“signed document”),

submitted by defendants with their motion to dismiss, tells a story counter to plaintiffs’ allegations.2 The

signed document differs from the unsigned offer in a number of significant respects, not the least of which

include changing the new principal balance, the date on which interest would have begun to accrue, and the

date the first new monthly payment would have been due. Defendants argue that plaintiffs cannot state a

12C851 Papalitsas vs. U.S. Bancorp d/b/a U.S. Bank, N.A., et al. Page 1 of 2
STATEMENT

1. Defendants argue that plaintiffs have sued the wrong entities and plaintiffs respond by

claiming that amendment of the complaint would fix any error. The issue of whether plaintiffs

can correct the problem is moot in light of my decision to grant defendants’ motion on other

grounds.

2. Because plaintiffs reference the final HAMP modification agreement that they returned to

U.S. Bank on July 21, 2011, in their complaint I may consider it without converting defendants’

motion to dismiss into a motion for summary judgment. 188 LLC v. Trinity Indus. Inc., 300 F.3d

730, 735 (7th Cir. 2002) (“documents attached to a motion to dismiss are considered part of the

pleadings if they are referred to in the plaintiff’s complaint and are central to his claim”)

(quoting Wright v. Assoc. Ins. Cos., 29 F.3d 1244, 1248 (7th Cir. 1994)).

claim against defendants when plaintiffs themselves were the ones to reject the final HAMP modification

agreement. As defendants point out, in Illinois the “mirror image” rule dictates that a response to an offer to

enter into a contractual relationship that does not conform exactly to the offer is a counteroffer and

extinguishes the original offer. Nomanbhoy Family Ltd. P’ship v. McDonald’s Corp., 579 F.Supp.2d 1071,

1092 (N.D. Ill. 2008). According to defendants, the signed document that plaintiffs returned to U.S. Bank,

altered as it was, constituted a counteroffer under the mirror image rule and U.S. Bank was under no

obligation to accept the terms of plaintiffs’ counteroffer. 

Plaintiffs’ opposition to the motion to dismiss is unresponsive to defendants’ arguments. Plaintiffs do

not dispute that they altered the modification agreement before signing and returning it to U.S. Bank, nor do

they address defendants’ contention that such alteration constitutes a rejection of U.S. Bank’s offer to enter

into a final modification agreement. This failure to substantively respond to defendants’ motion dooms

plaintiffs’ complaint. “[W]hen presented with a motion to dismiss, the non-moving party must proffer some

legal basis to support his cause of action. . . . The federal courts will not invent legal arguments for

litigants.” Stransky v. Cummins Engine Co., Inc., 51 F.3d 1329, 1335 (7th Cir. 1995); see also Cincinnati

Ins. Co. v. Eastern Atlantic Ins. Co., 260 F.3d 742, 747 (7th Cir. 2001) (by failing to address an argument

that is not frivolous or nondispositive, a non-moving party acquiesces in the movant’s argument, and

“acquiescence operates as a waiver”). Accordingly, all of plaintiffs’ state law claims based on U.S. Bank’s

alleged failure to offer or grant plaintiffs a permanent HAMP modification are dismissed.

This leaves plaintiffs’ claim that defendants violated the Equal Credit Opportunity Act (“ECOA”)

when U.S. Bank failed to timely notify plaintiffs in writing of the reasons for denying them a permanent

HAMP modification. Defendants argue that the ECOA does not apply here because U.S. Bank’s alleged

denial of the final modification does not constitute an “adverse action,” the event that triggers the ECOA’s

notification requirement. Again, plaintiffs fail to address defendants’ argument. In fact, plaintiffs do not

even reference their ECOA claim in their response to defendants’ motion. As such, plaintiffs have waived

any argument in support their ECOA claim and that count is dismissed as well.

For the foregoing reasons, defendants’ motion is granted and plaintiffs’ complaint is dismissed.

12C851 Papalitsas vs. U.S. Bancorp d/b/a U.S. Bank, N.A., et al. Page 2 of 2