IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION

EDUARDO GARCIA and JULIA GARCIA,

 Plaintiffs,

 vs.

WELLS FARGO BANK, N.A.,

 Defendant. 

)

) 

) 

) 

) 

) 

) 

) 

Case No. 1:20-cv-02402 

Honorable Rebecca R. Pallmeyer 

ORAL ARGUMENT 

REQUESTED 

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S

MOTION FOR SUMMARY JUDGMENT

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TABLE OF CONTENTS 

Page 

I. INTRODUCTION ....................................................................................................... 1

II. FACTUAL BACKGROUND ...................................................................................... 1

A. Plaintiffs’ Loan and Payment History, Including Failed Forbearance 

Programs and Multiple Unsuccessful Modifications. ...................................... 1

B. Wells Fargo Notifies Plaintiffs That the August 2010 Trial Loan 

Modification Denial Was an Error. .................................................................. 4

III. STANDARD ................................................................................................................ 5

IV. WELLS FARGO IS ENTITLED TO SUMMARY JUDGMENT ON 

PLAINTIFFS’ ICFA CLAIM ...................................................................................... 6

A. Plaintiffs Cannot Establish the Software Error Constituted an 

“Unfair” Practice Under the ICFA. .................................................................. 6

1. Plaintiffs Cannot Show That the Error Was Unethical, 

Oppressive, or Unscrupulous. .............................................................. 7

2. Plaintiffs Cannot Establish the Injury Prong. .................................... 10

B. Plaintiffs Cannot Show the Erroneous Denial Caused Their 

Foreclosure, Let Alone the Damages They Allege Flowed From the 

Foreclosure. .................................................................................................... 11

1. Plaintiffs’ Pattern of Nonpayment Precludes a Finding of 

Proximate Cause. ............................................................................... 13

2. Plaintiffs Decided to Not Make Loan Payments Instead of 

Paying an Amount They Admittedly Could Afford. ......................... 16

C. Plaintiffs’ Emotional Distress Claims and Claims of Credit Harm Are 

Unsupported By The Evidence. ..................................................................... 17

1. The Court Should Grant Wells Fargo Judgment as a Matter of 

Law as to Plaintiffs’ Claimed Emotional Distress Damages. ............ 17

2. The Court Should Grant Wells Fargo Judgment as a Matter of 

Law on Plaintiffs’ Claims of Credit Harm. ........................................ 24

V. CONCLUSION .......................................................................................................... 25

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TABLE OF AUTHORITIES

 Page(s) 

Cases

Aiello v. Providian Fin. Corp., 

239 F.3d 876 (7th Cir. 2001) ........................................................................................... 22

Anderson v. Stauffer Chem. Co., 

965 F.2d 397 (7th Cir. 1992) ............................................................................................. 6

Anthony v. Country Life Mfg., L.L.C., 

2002 WL 31269621 (N.D. Ill. Oct. 9, 2002), aff’d, 70 F. App’x 379 (7th 

Cir. 2003) ................................................................................................................... 13, 15

Batson v. Live Nation Ent., Inc., 

746 F.3d 827 (7th Cir. 2014) ........................................................................................... 11

Biggs v. Vill. of Dupo, 

892 F.2d 1298 (7th Cir. 1990) ......................................................................................... 20

Blanton v. RoundPoint Mortg. Servicing Corp., 

825 F. App’x 369 (7th Cir. 2020) .............................................................................. 20, 22

Bomar v. Pac. Union Fin., LLC, 

2017 U.S. Dist. LEXIS 62915 (N.D. Ill. 2017) ............................................................... 25

Brown v. I.C. Sys., Inc., 

2019 WL 1281972 (N.D. Ill. Mar. 20, 2019) ................................................................... 23

Clark v. Experian Info. Sols., Inc., 

256 F. App’x 818 (7th Cir. 2007) .................................................................................... 12

Deutsche Bank Nat’l Tr. Co. v. Pickar, 

2017 WL 3475083 (N.D. Ill. Aug. 14, 2017) .................................................................. 16

Diedrich v. Ocwen Loan Servicing, LLC, 

2015 WL 1885630 (E.D. Wis. Apr. 24, 2015), aff’d, 839 F.3d 583 (7th 

Cir. 2016) ................................................................................................................... 19, 20

Eddie Bauer, Inc. v. Focus Transp. Servs., 

881 F. Supp. 1174 (N.D. Ill. 1995) .............................................................................. 5, 12

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iii

Fogt v. 1-800-Pack-Rat, LLC,

2017 IL App (1st) 150383................................................................................................16

Indep. Tr. Corp. v. Fid. Nat. Title Ins. Co. of N.Y.,

577 F. Supp. 2d 1023 (N.D. Ill. 2008) .............................................................................21

Kremers v. Coca-Cola Co.,

712 F. Supp. 2d 759 (S.D. Ill. 2010)..................................................................................7

Leszanczuk v. Carrington Mortg. Servs., LLC,

2021 WL 365611 (N.D. Ill. Feb. 3, 2021), aff’d, 21 F.4th 933 (7th Cir. 

2021) ..............................................................................................................................7, 8

McGlenn v. Driveline Retail Merchandising, Inc.,

2021 WL 4301476 (C.D. Ill., 2021)...............................................................13, 15, 19, 22

Mullen v. GLV, Inc.,

488 F. Supp. 3d 695 (N.D. Ill. 2020) ...............................................................................11

Nekolny v. Painter,

653 F.2d 1164 (C.A. Ill., 1981)........................................................................................20

Phila. Indem. Ins. Co. v. Chi. Title Ins. Co.,

771 F.3d 391 (7th Cir. 2014) .............................................................................................6

Phillips v. Double Down Interactive LLC,

173 F. Supp. 3d 731 (N.D. Ill. 2016) ...............................................................................10

Price v. Philip Morris, Inc.,

219 Ill. 2d 182 (Sup. Ct. 2005) ..................................................................................12, 13

Priebe v. Autobarn, Ltd.,

240 F.3d 584 (7th Cir. 2001) ...........................................................................................17

Real Est. Value Co. v. USAir, Inc.,

979 F. Supp. 731 (N.D. Ill. 1997) ....................................................................................17

Reeder v. HSBC USA, Inc.,

2009 WL 4788488 (N.D. Ill. Dec. 8, 2009).....................................................................25

Robinson v. Toyota Motor Credit Corp.,

201 Ill. 2d 403 (2002) ....................................................................................................7, 9

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Sarver v. Experian Info. Sols.,

390 F.3d 969 (7th Cir. 2004) ...........................................................................................22

Saunders v. Michigan Ave. Nat’l Bank,

278 Ill. App. 3d 307 (1996) ...............................................................................................9

Schrott v. Bristol-Myers Squibb Co.,

2003 WL 22425009 (N.D. Ill. Oct. 23, 2003), aff’d, 403 F.3d 940 (7th 

Cir. 2005).........................................................................................................................17

Siegel v. Shell Oil Co.,

612 F.3d 932 (7th Cir. 2010) ...........................................................................5, 10, 11, 13

Siegel v. Shell Oil Co.,

656 F. Supp. 2d 825 (N.D. Ill. 2009), aff’d, 612 F.3d 932 (7th Cir. 2010) .......................9

Walker v. Macy’s Merch. Grp., Inc.,

288 F. Supp. 3d 840 (N.D. Ill. 2017) ...............................................................................12

White v. City of Chi.,

829 F.3d 837 (7th Cir. 2016) .............................................................................................6

Other Authorities

Fed. R. Civ. P. 56(a) ................................................................................................................5

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I. INTRODUCTION

Plaintiffs have undoubtedly suffered from many financial difficulties since 2006. The 

failure of their business; the 2008 Financial Crisis; Mr. Garcia’s struggles with 

unemployment; and Mrs. Garcia’s deteriorating health all impacted Plaintiffs’ ability to make 

their monthly mortgage payments. And Wells Fargo did make a mistake when it erroneously 

denied Plaintiffs a trial loan modification. However, the evidence demonstrates that Plaintiffs 

fall far short of the showing that the erroneous denial deprived them of “meaningful choice” 

under the ICFA or that it is probable that it proximately caused the foreclosure from which 

all of their alleged damages derive. Wells Fargo offered to review Plaintiffs for nine separate 

modifications. Moreover, even if they were to show that the erroneous denial had “caused” 

the foreclosure, both Plaintiffs seek emotional distress damages that are precluded by their 

own testimony or other evidence in the record. Accordingly, Plaintiffs cannot point to any 

evidence, as they must, that in a sea of misfortune, Wells Fargo’s solitary mistake was the 

proximate cause of the economic and emotional damages they currently claim. Wells Fargo 

is entitled to summary judgment. 

II. FACTUAL BACKGROUND

A. Plaintiffs’ Loan and Payment History, Including Failed Forbearance 

Programs and Multiple Unsuccessful Modifications.

The Plaintiffs in this case, Mr. and Mrs. Garcia, refinanced their mortgage in 2006 to 

invest in their first business, Woodland Lumber LLC (“Woodland Lumber”). Statement of 

Undisputed Material Facts (“SUMF”) ¶ 15. Mr. Garcia stopped working as a self-employed 

carpenter so he could devote himself to the business. SUMF ¶¶ 6; 10. Mrs. Garcia continued 

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to work full-time at Alivio Medical Center. SUMF ¶¶ 7-9. The same year of their refinance, 

Plaintiffs claim their Woodland Lumber business partner defrauded them, and the company 

was involuntarily dissolved at the end of 2006. SUMF ¶¶ 11-13. Mr. Garcia attempted to reenter the work force and regain his carpentry clients, but struggled to find any work as the 

economy entered a recession. SUMF ¶ 14.

By December 2006, Plaintiffs first defaulted on their refinanced loan. SUMF ¶ 17. 

After Woodland Lumber failed, Plaintiffs sought help with their refinanced loan payments, 

and in February 2007, Wells Fargo extended the first Temporary Forbearance Agreement to 

Plaintiffs. SUMF ¶ 18. Plaintiffs performed under that Agreement and brought their loan 

current until March 2008. SUMF ¶ 19. After their payments increased per the terms of their 

adjustable-rate note, Plaintiffs defaulted again and sought what would be the first of eight 

more loan modifications from Wells Fargo. SUMF ¶¶ 20-39. Plaintiffs did not qualify for a 

March 2008 loan modification because their reported monthly income was less than their 

reported monthly expenses. SUMF ¶ 20. Plaintiffs do not challenge that decision.

Although Plaintiffs did not qualify for the March 2008 loan modification (id.), Wells 

Fargo offered Plaintiffs two Special Forbearance Plans—one in 2008 and one in 2009. 

SUMF ¶ 22. Plaintiffs defaulted on both plans by failing to make the necessary payments. Id. 

Plaintiffs now claim they agreed to the September Special Forbearance Plan “just to gain 

time” so they could submit another loan modification application. SUMF ¶ 23. Deutsche Bank 

National Trust Company (as trustee for Morgan Stanley IXIS Real Estate Capital Trust) filed 

a foreclosure complaint against Plaintiffs in the Circuit Court of Cook County in January 

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2009. SUMF 42. Plaintiffs answered the complaint in February 2009, and the court entered a 

judgment of foreclosure against Plaintiffs in September 2009. Id.

In December 2009, Plaintiffs again sought assistance from Wells Fargo. SUMF ¶ 32. 

Plaintiffs were given the opportunity to apply for a loan modification, but their application 

was denied because Plaintiffs failed to provide the documents required for Wells Fargo to 

complete its evaluation of Plaintiffs’ eligibility. SUMF ¶ 38. Then Wells Fargo offered 

Plaintiffs a March 2010 loan modification which would have lowered their monthly mortgage 

payment by almost $1,200—from roughly $3,000 to $1,871.60. SUMF ¶ 25. Plaintiffs 

testified that although they could have afforded to pay that modified monthly payment, they

intentionally declined the modification. SUMF ¶¶ 26-39. Instead, Plaintiffs elected to pay 

neither their original unmodified mortgage payments nor the modified mortgage payments. 

SUMF ¶ 31. Plaintiffs’ rationale for not making any payments at this time was to force Wells 

Fargo to negotiate with them until they received a subjectively “more comfortable” monthly 

mortgage payment than the modified payment of $1,871.60. SUMF ¶¶ 31-32. In April 2010, 

Plaintiffs applied for a HAMP trial loan modification—which they knew was not a permanent 

loan modification—but were erroneously denied in August 2010 because of a software 

calculation error, which is described more fully below. SUMF ¶¶ 33; 36. Plaintiffs claim it is

this denial that is responsible for the eventual foreclosure of their property and the $25 million 

in damages they seek. At the time of the denial, Plaintiffs had not made a payment on their 

mortgage for 24 months. SUMF ¶ 37.

Within a couple of months of the August 2010 erroneous denial, Plaintiffs were 

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separately considered for another loan modification. SUMF ¶ 38. That modification was 

denied – as before – because Plaintiffs failed to provide the documents required for Wells 

Fargo to evaluate Plaintiffs’ eligibility. Id. Two months after that denial, Plaintiffs submitted 

what would be their final modification application. SUMF ¶ 39. That application was denied 

because Plaintiffs’ reported monthly income was less than their reported monthly expenses. 

Id. 

After 30 months of missed payments and eight unsuccessful loan modification

attempts—one of which Wells Fargo erroneously denied—the LaGrange Park Property was 

sold at a foreclosure sale on February 18, 2011. SUMF ¶¶ 40; 42-43. 

B. Wells Fargo Notifies Plaintiffs That the August 2010 Trial Loan 

Modification Denial Was An Error. 

The erroneous denial at issue here was the result of a calculation error in an 

underwriting tool called the “Home Preservation Application Tool” or “HPA Tool.” That 

error led to erroneous denials of trial loan modifications for certain borrowers in the 

foreclosure process. SUMF ¶¶ 3-4. As Plaintiffs acknowledge, these trial loan modifications 

were not permanent loan modifications. SUMF ¶ 36. Instead, they required borrowers to 

(among other requirements) make timely payments during a three-month trial period in order 

to be eligible for a permanent modification. Id. 

Many borrowers who received trial HAMP modifications did not avoid foreclosure. 

Indeed, approximately 47% of trial HAMP modifications from February 2009 to June 2012 

failed to convert to permanent modifications for several reasons, including missing 

documentation (34%), payment default during the trial payment period (22%), and borrowers 

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withdrawing their requests for modifications (8%). SUMF ¶ 41. Plaintiffs engaged in all of 

these behaviors during the 30 months they were delinquent on their loan. SUMF ¶¶ 20-39. 

Given the history of Plaintiffs’ loan, it is unlikely that Plaintiffs would have been able to avoid 

default or foreclosure even if the software error had not occurred and they had been approved 

for the trial modification in August 2010. Id. at ¶ 41.

In July 2019, Wells Fargo notified Plaintiffs of the error, sent them no-strings-attached 

payments totaling $24,500 and offered to mediate with them if Plaintiffs felt the payment did 

not make things right. SUMF ¶ 5. Plaintiffs did not mediate, and instead filed this lawsuit in 

April 2020. Wells Fargo paid the $24,500 to Plaintiffs’ bankruptcy estate. In re Eduardo 

Garcia and Julia Escamilla, N.D. Ill Case No. 11-22208 (Dkt. 54).

III. STANDARD

Summary judgment is appropriate “if the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(a). Once a party has made a properly supported motion for summary 

judgment, the nonmoving party may not simply rest upon the pleadings but must instead 

submit evidentiary materials that “set forth specific facts showing that there is a genuine 

issue for trial.” Siegel v. Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010) (citing Fed. R. Civ.

P. 56(e)). “The nonmoving party must do more than simply show that there is some 

metaphysical doubt as to the material facts.” Id. (citing Matsushita Elec. Indus. Co. v. Zenith 

Radio Corp., 475 U.S. 574, 586-87) (1986). “Where the party opposing summary judgment 

bears the burden of proof on a dispositive issue, it must offer specific evidence demonstrating 

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a factual basis on which it is entitled to relief.” Eddie Bauer, Inc. v. Focus Transp. Servs., 

881 F. Supp. 1174, 1177 (N.D. Ill. 1995). 

The non-moving party may not rely on conclusory allegations or speculation alone to 

oppose summary judgment. Anderson v. Stauffer Chem. Co., 965 F.2d 397, 402 (7th Cir.

1992). In ruling on summary judgment, the court gives the non-moving party “the benefit of 

reasonable inferences from the evidence, but not speculative inferences in [its] favor.” White 

v. City of Chi., 829 F.3d 837, 841 (7th Cir. 2016) (internal citations omitted). “The controlling 

question is whether a reasonable trier of fact could find in favor of the non-moving party on 

the evidence submitted in support of and opposition to the motion for summary judgment.” 

Id. (citation omitted). 

IV. WELLS FARGO IS ENTITLED TO SUMMARY JUDGMENT ON 

PLAINTIFFS’ ICFA CLAIM

An ICFA claim brought by a private party has five elements: “(1) a deceptive [or 

unfair] act or practice by the defendant; (2) the defendant intended that the plaintiff rely on 

the [deceptive or unfair practice]; (3) the deceptive [or unfair] act[s] occurred during a course 

of conduct involving trade or commerce; (4) actual damage to the plaintiff; (5) proximately 

caused by the deceptive [or unfair] act[s].” Phila. Indem. Ins. Co. v. Chi. Title Ins. Co., 771 

F.3d 391, 402 (7th Cir. 2014) (citing De Bouse v. Bayer AG, 922 N.E.2d 309, 313 (Ill. 2009)). 

Wells Fargo moves for summary judgment on the first, fourth, and fifth elements of Plaintiffs’ 

claim.

A. Plaintiffs Cannot Establish the Software Error Constituted an “Unfair” 

Practice Under the ICFA.

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Plaintiffs premise their ICFA claim on “unfair” conduct. Compl. (Dkt. 1) ¶ 125. 

Whether a practice is “unfair” under the ICFA depends upon whether the practice: (1) offends 

public policy; (2) is immoral, unethical, oppressive or unscrupulous; and (3) causes 

substantial injury to consumers. Robinson v. Toyota Motor Credit Corp., 201 Ill. 2d 403, 417–

418 (2002). “[C]ourts must determine whether a particular challenged trade practice is 

‘unfair’ within the meaning of the ICFA on a case-by-case basis.” Kremers v. Coca-Cola Co., 

712 F. Supp. 2d 759, 771 (S.D. Ill. 2010) (collecting cases).

Plaintiffs concede—as they must—that they turned down an affordable loan 

modification Wells Fargo offered them. Thus, there is no genuine issue of material fact as to 

the “unfair” element of Plaintiffs’ ICFA claim, and Wells Fargo is entitled to summary 

judgment.

1. Plaintiffs Cannot Show That the Error Was Unethical, Oppressive, 

or Unscrupulous.

A practice is “immoral, unethical, oppressive, or unscrupulous,” if it “leaves the 

consumer with little alternative except to submit to it.” Id. at 772. “Conduct is oppressive only 

if it imposes a lack of meaningful choice or an unreasonable burden on its target.” Leszanczuk 

v. Carrington Mortg. Servs., LLC, 2021 WL 365611, at *6 (N.D. Ill. Feb. 3, 2021), aff’d, 21 

F.4th 933 (7th Cir. 2021).

While Plaintiffs’ untested allegations were sufficient at the pleading stage, discovery 

has confirmed that Wells Fargo’s conduct in denying the HAMP trial modification did not 

impose a lack of meaningful choice on Plaintiffs. Plaintiffs had choices – but instead they 

chose to decline or fail to complete necessary paperwork for other modifications, failed to 

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perform on other forbearance agreements, and continued to default on their mortgage that was 

part of an admitted negotiation strategy. SUMF ¶¶ 20; 26-30. This is not Wells Fargo

“impos[ing] a lack of meaningful choice” on Plaintiffs, as the law requires. Leszanczuk, 2021 

WL 365611, at *6.

Plaintiffs did have a choice. More specifically, for instance, Plaintiffs could have 

accepted the loan modification Wells Fargo offered them just four months before the 

erroneous denial, which would have reduced their monthly mortgage payments from 

approximately $3,000 to $1,871. SUMF ¶¶ 25-26. They chose not to accept this modification. 

SUMF ¶ 27. Plaintiffs claim they rejected that offer only because they wanted to see if Wells 

Fargo would offer them an even lower payment. SUMF ¶¶ 27-32. In other words, rather than 

accept the loan modification offer (or make the required payments under the terms of their 

original unmodified mortgage), it was Plaintiffs’ “intention to negotiate” with Wells Fargo 

until Plaintiffs were given what they viewed as a “better” and “more comfortable” payment. 

SUMF ¶ 31. Mr. Garcia testified that he declined the modification because he believed it was 

“not a comfortable sum of money” for them to pay. SUMF ¶ 27. However, Mr. Garcia 

understood that if he declined the modification, Wells Fargo could foreclose on the house and 

that he was still responsible for the original monthly mortgage payments. SUMF ¶ 28.

For Mrs. Garcia’s part, she testified that Plaintiffs could have afforded the $1,871 

monthly payment they rejected. SUMF ¶ 26. According to Mrs. Garcia, she would have 

accepted the modification and made the $1,871 payments had she known that the property 

could have been foreclosed on if she did not accept the offer. SUMF ¶ 30. She wanted 

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someone from Wells Fargo to “take care of [Plaintiffs]” and verbally tell her, after missing 

some 19 months of mortgage payments, “Mrs. Garcia if you don’t take this last opportunity, 

we’re going to sell your house.” SUMF ¶ 29. Plaintiffs received a total of four default and 

acceleration notices expressly stating this would happen. SUMF ¶ 43. In any event, Plaintiffs’

decision to decline the modification Wells Fargo offered them does not constitute a lack of 

meaningful alternatives imposed by Wells Fargo, as required under ICFA.

Moreover, within a couple of months of the August 2010 erroneous denial, Wells 

Fargo considered Plaintiffs for another loan modification, but Plaintiffs failed to provide the 

documents required to evaluate their eligibility. SUMF 38. Plaintiffs’ failure to provide 

documents further demonstrates that Wells Fargo’s conduct did not impose a lack of 

meaningful alternatives upon Plaintiffs.

Courts have not hesitated to dispose of ICFA claims on summary judgment where, as 

here, alternatives existed. In Siegel v. Shell Oil Co., 656 F. Supp. 2d 825, 833 (N.D. Ill. 2009), 

aff’d, 612 F.3d 932 (7th Cir. 2010), the court noted that alternative options demonstrated “an 

absence of the type of oppressiveness and lack of meaningful choice necessary to establish 

unfairness.” Id. The court granted summary judgment in favor of defendants and the Seventh 

Circuit affirmed. See generally id.; see also Robinson, 201 Ill. 2d at 420 (plaintiffs had not 

proven oppressive conduct under the ICFA because they could have leased a car elsewhere

and avoided defendant’s penalty provisions); Saunders v. Michigan Ave. Nat’l Bank, 278 Ill.

App. 3d 307, 314 (1996) (bank’s fee was not an unfair trade practice under ICFA when the 

customer “not only had control over whether she would be assessed an overdraft fee, but was 

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free to select another Bank”). Here too, the evidence demonstrates it was not Wells Fargo that 

imposed any lack of meaningful choice on Plaintiffs. Instead, Plaintiffs’ financial 

circumstances, nearly three years of missed mortgage payments, negative equity, their 

decision to reject a modification offer, and a desire to continue what they personally believed 

were “negotiations” with Wells Fargo created any lack of meaningful choice they 

experienced. These circumstances do not amount to an unfair ICFA practice under the law. 

Summary judgment should be entered in favor of Wells Fargo.

2. Plaintiffs Cannot Establish the Injury Prong.

Plaintiffs’ decision to reject Wells Fargo’s March 2010 modification offer also negates 

injury under ICFA as a matter of law. Indeed, under ICFA, “[e]ven if [a plaintiff] could 

establish that the defendants’ conduct was unfair, in order to establish harm [...], [a plaintiff] 

must still show that he suffered substantial injury, and that he could not avoid this injury.” 

Siegel, 612 F.3d at 937 (emphasis added); Phillips v. Double Down Interactive LLC, 173 F. 

Supp. 3d 731, 743 (N.D. Ill. 2016) (in order to constitute substantial injury within the meaning 

of the ICFA, the practice must be “one that consumers themselves could not reasonably have 

avoided”).

As before, the evidence shows that Plaintiffs could have avoided their claimed injuries 

by accepting the modification Wells Fargo offered to them just months prior to the erroneous 

denial, which would have significantly lowered their monthly payments. See Section II, supra. 

Courts routinely grant summary judgment or motions to dismiss for ICFA defendants where 

a plaintiff could have avoided an injury based on the existence of alternatives. See Siegel, 612 

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F.3d at 937 (affirming summary judgment where plaintiff could have purchased gasoline from 

gas stations that did not artificially inflate prices). For example, in Batson v. Live Nation Ent., 

Inc., 746 F.3d 827, 834 (7th Cir. 2014), the Seventh Circuit affirmed the dismissal of 

plaintiff’s ICFA claim and agreed with the lower court’s analysis that plaintiff could have 

reasonably avoided a concert ticket fee that bundled the cost for the ticket and parking. The 

plaintiff could have avoided the fee by “opting instead for alternative entertainment” to the 

concert. Id. 

Plaintiffs’ claimed reasons for not pursuing the loan modification do not require a 

different conclusion. As this District has explained, “whether a consumer’s [] decision was 

justified, despite the availability of alternatives, is not an element of an unfair practices 

claim.” Mullen v. GLV, Inc., 488 F. Supp. 3d 695, 712 (N.D. Ill. 2020) (granting summary 

judgment for defendants on ICFA claim alleging concealment of coach’s history of sexual 

abuse despite plaintiff’s contention that her decision to enroll daughters in defendants’ 

programs was justified because she did not know about coach’s history at the time). Instead, 

“[t]he relevant inquiry is whether a consumer’s injury ‘could reasonably have been avoided’ 

by, for example, purchase of available alternatives.” Id. Because Plaintiffs admit that Wells 

Fargo offered them a loan modification they could have afforded but nonetheless chose not 

to accept, there is no genuine issue of material fact regarding the injury prong of Plaintiffs’ 

ICFA claim. Wells Fargo is entitled to judgment as a matter of law.

B. Plaintiffs Cannot Show the Erroneous Denial Caused Their Foreclosure, 

Let Alone the Damages They Allege Flowed From the Foreclosure.

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Nor is there any genuine issue of material fact regarding proximate cause, which is an 

essential element of Plaintiffs’ ICFA claim. See Clark v. Experian Info. Sols., Inc., 256 F. 

App’x 818, 822 (7th Cir. 2007). According to Plaintiffs, the erroneous trial modification 

denial “caused [them] to lose their Family Home,” which in turn resulted in damages “flowing 

directly from this harm.” Compl. (Dkt. 1) ¶¶ 35; 114-115 (emphasis added). At this stage, 

Plaintiffs must substantiate those assertions with “specific evidence demonstrating a factual 

basis.” Eddie Bauer, 881 F. Supp. at 1177. They cannot do so.

Plaintiffs acknowledge that the erroneous denial of their trial modification and the 

foreclosure of their home are not the same. SUMF ¶ 35. Plaintiffs also admit that the error 

only prevented them from getting a trial—not permanent—modification. SUMF ¶ 36. 

Plaintiffs would have had to successfully complete the trial modification to receive a 

permanent modification and then perform under that modification to avoid foreclosure. Id. 

The evidence also demonstrates that, from the time Plaintiffs refinanced their mortgage in 

2006, they faced numerous financial difficulties, loan payment problems, and various medical 

conditions. SUMF ¶¶ 11-44; 45-66. The evidence also shows that all of these issues caused 

Plaintiffs’ delinquency and claimed damages. See id.

In the ICFA context, “the relevant [cause-in-fact] inquiry is whether the harm would 

have occurred absent the defendant’s conduct.” Price v. Philip Morris, Inc., 219 Ill. 2d 182, 

269 (Sup. Ct. 2005) (emphasis added). Further, “when multiple factors may have combined 

to cause the injury, [the Court] consider[s] whether the defendant’s conduct was a material 

element and a substantial factor in bringing about the injury.” Walker v. Macy’s Merch. Grp., 

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Inc., 288 F. Supp. 3d 840, 856 (N.D. Ill. 2017) (quotation omitted). This showing can only be 

made where there is “‘reasonable certainty’ that the defendant’s acts caused the injury.” 

Anthony v. Country Life Mfg., L.L.C., 2002 WL 31269621, at *2 (N.D. Ill. Oct. 9, 2002), aff’d, 

70 F. App’x 379 (7th Cir. 2003). Here, despite extensive discovery, Plaintiffs have proffered 

no evidence showing that an erroneous denial on a single trial modification application can

be disentangled from the morass. See Siegel, 612 F.3d at 937 (affirming summary judgment 

of ICFA claim “because many factors contributed to [plaintiff’s harm and] his claim that the 

defendants’ conduct caused” that harm “[wa]s therefore undermined”).

1. Plaintiffs’ Pattern of Nonpayment Precludes a Finding of Proximate 

Cause.

Plaintiffs must demonstrate it is “probable” they would have avoided foreclosure in 

the absence of Wells Fargo’s erroneous trial modification denial. See Price, 219 Ill. 2d at 269; 

McGlenn v. Driveline Retail Merchandising, Inc., 2021 WL 4301476, at *10 (C.D. Ill., 2021)

(proximate cause can be established through circumstantial evidence only if the evidence 

makes the causation conclusion “probable as opposed to merely possible”). However, 

Plaintiffs’ years of failing to make their loan payments, breaking modification payment plans, 

and failing to complete applications call for a different conclusion. See SUMF ¶¶ 15-44. A

bevy of financial problems over at least four years—not the one erroneous denial by Wells 

Fargo in August 2010—led to Plaintiffs’ inability to keep their house. See id. They repeatedly 

defaulted on their loan and remained in default despite multiple modifications and forbearance 

agreements Wells Fargo offered them. SUMF ¶¶ 17-43. Indeed, Deutsche Bank National 

Trust Company (as trustee for Morgan Stanley IXIS Real Estate Capital Trust) filed a 

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foreclosure complaint against Plaintiffs in January 2009. SUMF ¶ 42. Plaintiffs answered the 

complaint, and the court entered a judgment of foreclosure against Plaintiffs in September 

2009. Id. In addition, it is undisputed that Mr. Garcia endured long periods of unemployment 

and that Plaintiffs lost their business at the same time through no fault of Wells Fargo. Id. at 

¶¶ 10-14; 24. Plaintiffs incurred dozens of debts (aside from that owed to Wells Fargo) and 

also failed to pay those off. SUMF ¶¶ 24; 44. This pattern of nonpayment even led to 

repossession of Mrs. Garcia’s car by a different bank. SUMF ¶ 16.

Even if Plaintiffs had been approved for and accepted the erroneously denied trial 

modification, the evidence does not suggest it is probable that Plaintiffs would have been able 

to save their home. See SUMF ¶¶ 34; 41. Borrowers who obtained HAMP modifications 

frequently lost their homes in foreclosure—this is especially true of those, like Plaintiffs, with 

long delinquencies and histories of breaking loan modification payment plans and failing to 

complete modification applications. Id. at ¶ 41. In the first three years of the HAMP program

(which includes the dates of the erroneous denial and the Garcias’ foreclosure), only around 

half of all borrowers who received a trial modification were able to convert it into a permanent 

modification. Id. Of those, approximately a quarter re-defaulted within two years and 

approximately 35% re-defaulted within four. See id. Together, these statistics give Plaintiffs, 

at most, a 40% likelihood of both getting a permanent modification and holding onto their 

property for a mere two years without re-defaulting. See id. This is well short of the 

probability showing required.

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In fact, of the seven times Plaintiffs were considered for a loan modification after their 

uncured September 2008 default, six resulted in denials for reasons they do not and cannot 

challenge. SUMF ¶¶ 20-40. Plaintiffs twice lost forbearance plans for failing to make the 

required payments, twice could not receive a full review because they did not submit the 

requested documents, did not qualify for one because their expenses were greater than their 

income, and in one instance they rejected a loan modification for which they were approved. 

SUMF ¶¶ 22-23; 38-39; 25-32. Acknowledging this history, Mr. Garcia conceded that it was 

possible Plaintiffs would not have been able to complete the one erroneously denied trial 

modification. SUMF ¶ 34. He also admitted the possibility that Plaintiffs would have declined 

it. Id. Further, both Plaintiffs testified to engaging in some level of gamesmanship with Wells 

Fargo: both reported declining a modification they could have afforded to pay, and Mrs. 

Garcia admitted that they agreed to a 2008 forbearance plan, which they promptly broke, “just 

to gain time and submit the application for the affordable house modification.” SUMF ¶¶ 25-

32; 22-23. Moreover, even after the August 2010 erroneous denial, Wells Fargo considered 

Plaintiffs for another loan modification, but Plaintiffs failed to provide the documents 

required to evaluate their eligibility. SUMF ¶ 38. 

The evidence thus does not show the required “probability” that Plaintiffs would have 

accepted the erroneously denied trial modification if received—let alone completed the 

required trial payments and the required regular payments thereafter—and thus avoided 

foreclosure. Instead, the evidence supports the opposite. Since it is not “reasonabl[y]

certain[]” or probable that Wells Fargo was the proximate cause of Plaintiffs’ harm, their 

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claim should be summarily adjudicated. See Anthony, 2002 WL 31269621, at *2; McGlenn, 

2021 WL 4301476, at *10.

2. Plaintiffs Decided to Not Make Loan Payments Instead of Paying an 

Amount They Admittedly Could Afford.

Plaintiffs’ willful decision not to make their loan payments, even when they testified 

they would have been able to, demonstrates that Wells Fargo was not the proximate cause of 

their foreclosure. See Section IV. A.1, supra. The evidence instead demonstrates that the loss 

of Plaintiffs’ home is fundamentally attributable to Plaintiffs’ own conduct. Had Plaintiffs 

decided to accept the March 2010 modification instead of continuing to pay nothing on their 

loan, and completed all necessary trial payments, they could have brought their loan current 

and obviated the need for a subsequent loss mitigation review altogether. Where, as here, 

Plaintiffs’ “own actions caused . . . the foreclosure of their property” and there is “no basis 

. . . to find that [the bank’s] actions caused [Plaintiffs] to stop making payments,” courts have 

found summary judgment to be warranted. See, e.g., Deutsche Bank Nat’l Tr. Co. v. Pickar, 

2017 WL 3475083, at *5 (N.D. Ill. Aug. 14, 2017) (summary judgment granted where 

plaintiffs rejected modification and stopped making payments on the note, which led to 

default that brought on foreclosure action); Fogt v. 1-800-Pack-Rat, LLC, 2017 IL App (1st) 

150383, ¶ 71 (granting summary judgment where plaintiffs failed to update credit card 

information, which led plaintiffs to fall behind on rental payments and explaining that

“[a]bsent the plaintiffs’ [own] failures,” they would not have been harmed). This Court should 

conclude the same.

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C. Plaintiffs’ Emotional Distress Claims and Claims of Credit Harm Are 

Unsupported By The Evidence.

Even if Plaintiffs could establish the erroneous denial proximately caused the 

foreclosure, Plaintiffs cannot adduce evidence that certain categories of damages they claim 

flowed from the erroneous denial. Indeed, there is no triable issue regarding Plaintiffs’ 

claimed emotional distress damages and damages to their credit scores. Accordingly, the 

Court should dispose of these damages on summary judgment. Priebe v. Autobarn, Ltd., 240 

F.3d 584, 589 (7th Cir. 2001) (affirming summary judgment as to ICFA claim because 

plaintiff failed to prove damages); Real Est. Value Co. v. USAir, Inc., 979 F. Supp. 731, 741 

(N.D. Ill. 1997) (“[A] party may be entitled to summary judgment with respect to certain 

categories of damages sought”). 

1. The Court Should Grant Wells Fargo Judgment as a Matter of Law 

as to Plaintiffs’ Claimed Emotional Distress Damages. 

Here, Plaintiffs cannot adduce sufficient evidence that they suffered emotional distress 

as a result of Wells Fargo’s alleged violation of ICFA. Rather, the medical evidence in the 

record either (1) does not address the erroneous denial’s impact on Plaintiffs’ conditions or 

finds that it had none, or (2) shows that all of the conditions for which Plaintiffs seek damages 

were either pre-existing at the time of the error or have never been diagnosed by a doctor. 

Accordingly, there is no triable issue regarding Plaintiffs’ claimed emotional distress 

damages, and Wells Fargo is entitled to judgment as a matter of law. 

Mrs. Garcia: It is axiomatic that when a plaintiff “fails to offer any evidence 

demonstrating that her physical complaints are related to” the harm alleged, she also fails to 

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demonstrate evidence of causation. Schrott v. Bristol-Myers Squibb Co., 2003 WL 22425009, 

at *6 (N.D. Ill. Oct. 23, 2003), aff’d, 403 F.3d 940 (7th Cir. 2005). Mrs. Garcia’s claims fail 

this test at the outset because all of the medical conditions for which she seeks damages 

predate the foreclosure and error, in some cases by many years. Indeed, before Plaintiffs’ 

financial difficulties began, Mrs. Garcia was diagnosed with several medical conditions, 

including migraines, fibromyalgia, and Major Depressive Disorder. SUMF ¶¶ 45; 53; 55-56. 

Mrs. Garcia’s primary care physician traces her fibromyalgia and migraine pain to a severe 

car accident that occurred nearly 30 years ago, and links Mrs. Garcia’s depression to the 

chronic physical pain she experiences because of her other medical conditions. SUMF ¶¶ 46-

47. An independent neuropsychological analysis of Mrs. Garcia and her medical conditions 

confirms that the medications she takes to treat her medical conditions are mismanaged and 

likely extend and worsen her symptoms. SUMF ¶¶ 55; 57-58. Medication mismanagement 

aside, Mrs. Garcia testified that she does not “believe” in depression and, consequently, has 

never sought nor followed through with treatment for it. SUMF ¶¶ 59; 49. Mrs. Garcia has 

also disregarded the advice and treatment recommendations of her doctors. Id. at ¶¶ 49, 59. 

For example, she refused recommended psychotherapy because she preferred to seek pastoral 

and spiritual care, despite expressing an understanding that these cannot replace formal 

psychotherapy. Id. In light of this evidence, independent medical examiner Dr. Hartman 

concluded that Mrs. Garcia’s chronic psychological and medical conditions are not the result 

of losing the house in foreclosure, but instead are the result of her mistreated and untreated 

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medical and psychological conditions. Id. at ¶¶ 55-56. Moreover, Dr. Hartman found that Mrs. 

Garcia may magnify her symptoms for secondary (financial) gain. Id. at ¶ 60. 

Accordingly, Mrs. Garcia cannot demonstrate that proximate cause as to her claimed 

emotional distress damages is “probable,” as opposed to merely “possible,” and summary 

judgment should be granted. McGlenn, 2021 WL 4301476, at *10. 

Mr. Garcia: Mr. Garcia testified that his feelings of anxiousness, being “on edge,” 

and frustration all pre-dated the erroneous denial and arose from his inability to find steady 

employment and accomplish work projects starting around 2008. SUMF ¶ 61. Similarly, Mr. 

Garcia’s medical records noted issues with sleep and a severe sleep disorder years before the 

erroneous denial. Id. Moreover, Mr. Garcia testified that there was “no room” for depression 

in his life, it was not in his nature to feel depressed, and he confirmed that he is a person with 

a “positive outlook.” Id. Mr. Garcia also denied the existence of any marital distress. Id. And 

while both Plaintiffs testified experiencing emotional distress in connection with prosecuting 

this lawsuit, such damages are not recoverable. Id. ¶¶ at 54; 62; see Diedrich v. Ocwen Loan 

Servicing, LLC, 2015 WL 1885630, at *9 (E.D. Wis. Apr. 24, 2015), aff’d, 839 F.3d 583 (7th 

Cir. 2016) (stress relating to plaintiff’s “involvement in the lawsuit itself . . . does not ‘suffice 

as a harm warranting actual damages’”) (collecting cases). 

Critically, the only doctor who has ever evaluated Mr. Garcia for emotional distress 

found there to be none. Dr. Hartman, who performed an independent medical examination, 

concluded that Mr. Garcia “did not display any diagnosable stress disorder specific to the 

bank and mortgage difficulties.” SUMF ¶ 62. Dr. Hartman further concluded that Mr. Garcia 

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did not appear anxious or depressed. Id. at ¶ 63. While Dr. Hartman acknowledged that Mr. 

Garcia described the loss of his home as shocking and stressful, this single statement is not 

enough to establish injury as a result of Wells Fargo’s alleged violation of ICFA. Id. at ¶ 62; 

see Nekolny v. Painter, 653 F.2d 1164, 1172–73 (C.A. Ill., 1981). Dr. Hartman further noted 

that Mr. Garcia’s mental state is influenced by his untreated sleep apnea and hypertension, 

demonstrating that Wells Fargo was not the “but for” cause of Mr. Garcia’s damages. SUMF 

¶¶ 63-64. Finally, Dr. Hartman noted that Mr. Garcia exaggerated some symptoms. Id. at ¶ 65. 

Without any medical records or testimony from Mr. Garcia’s own doctors substantiating his 

potentially exaggerated emotional distress allegations, Dr. Hartman’s findings further bolster 

the argument that Mr. Garcia did not experience demonstrable emotional distress as a result 

of Wells Fargo’s alleged violation of ICFA. See Biggs v. Vill. of Dupo, 892 F.2d 1298, 1304-

05 (7th Cir. 1990) (“[W]e require that a plaintiff show “demonstrable emotional distress[.]”) 

(emphasis in original).

Plaintiffs attempt to address these insurmountable issues by alleging that Wells Fargo 

“exaggerated, increased, exacerbated” or otherwise worsened their pre-existing medical 

conditions. Declaration of Shawn R. Obi (Obi Dec.) at Ex. 37 (Julia Garcia’s Resp. to 

Interrog.) at p. 9. The Court should reject that attempt. The evidence provides no basis on 

which a jury could separate out how much of the “worsening” was caused by the foreclosure, 

let alone reasonably conclude that the bank was the proximate cause of Plaintiffs’ claimed 

ailments. See Diedrich, 2015 WL 1885630, at *9; Blanton v. RoundPoint Mortg. Servicing

Corp., 825 F. App’x 369, 373 (7th Cir. 2020). On the contrary, although Plaintiffs blame 

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Wells Fargo for causing or exacerbating their medical conditions (Obi Dec. at Ex. 37, Julia 

Garcia’s Resp. to Interrog. p. 9), as shown above, the evidence confirms numerous 

contributing causes, including (1) Mr. Garcia’s alleged emotional distress is completely 

untreated or mistreated (SUMF ¶¶ 49; 55-59), and (2) Mrs. Garcia’s treatment of her 

depressive disorder is “peculiar,” lacks a formal psychiatric evaluation, and leaves some 

obvious depressive symptoms unaddressed. SUMF ¶¶ 58-59. In addition, as shown above, 

Mrs. Garcia’s medications are mismanaged, likely causing extension and worsening of her 

symptoms and risking potentially dangerous interactions. SUMF ¶ 57. And Plaintiffs cite 

stress from being in default and having to apply for loan modifications starting in 2008 

(SUMF ¶¶ 50-51; 61), and from filing this lawsuit (id. at ¶¶ 54; 62), as contributing to their 

medical conditions as well.

The evidence in the record thus provides no means by which a jury could reasonably 

determine the medical impact of Wells Fargo’s erroneous denial amidst this constellation of 

causes. This difficulty is made more acute by the passage of time. Cf. Indep. Tr. Corp. v. Fid. 

Nat. Title Ins. Co. of N.Y., 577 F. Supp. 2d 1023, 1040 (N.D. Ill. 2008) (granting summary 

judgment on ICFA claim where plaintiff did not learn of alleged wrongful conduct until years 

after harm was caused). Plaintiffs here did not learn of the alleged wrongful conduct—the 

error—until eight years after it occurred, and they could not have discussed Wells Fargo’s 

conduct with their doctors prior to that time. This means that Plaintiffs’ doctors could not, 

and did not, try to isolate or assess the error as a potential cause to the Garcias’ health 

conditions.

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Indeed, several of Plaintiffs’ doctors confirmed at deposition that they did not recall 

discussing even the foreclosure with Plaintiffs. SUMF ¶ 48. And Plaintiffs’ primary 

physician, Dr. Pillai, testified that she remembered once speaking to the Garcias about losing 

their home, but she observed that they had “the same response that anybody [would] ha[ve].” 

Id. at ¶ 47. Dr. Pillai did not have an answer for how much, if any, of Plaintiffs’ medical 

conditions might be attributable to Wells Fargo. Id.; cf. Blanton, 825 F. App’x at 373 (granting 

summary judgment on ICFA claim where treating physician who was offered as expert on 

cause of the plaintiff’s injury had not made that determination in the course of providing 

treatment). Out of the 8,000 pages of medical records produced in this case from 13 doctors, 

there is a single reference to the foreclosure, and none contain a diagnosis based on that 

subject. Obi Dec. at Ex. 37 (Julia Garcia’s Resp. to Interrog.) at p. 14; SUMF at ¶ 48. Plaintiffs 

cannot adduce any other evidence on this point except for their own testimony. See, e.g., 

Sarver v. Experian Info. Sols., 390 F.3d 969, 971 (7th Cir. 2004) (explaining that the Seventh 

Circuit maintains “a strict standard for a finding of emotional damage” and such claims must 

be supported by more than a plaintiff’s own “conclusory” statements); Aiello v. Providian 

Fin. Corp., 239 F.3d 876, 880 (7th Cir. 2001) (noting that the law is “wary of claims of 

emotional distress, because they are so easy to manufacture”).

Indeed, Dr. Hartman has advised caution about uncritically accepting Plaintiffs’ selfreported symptoms and their causes, as each Plaintiff is prone to some amount of exaggeration 

and symptom-magnification. SUMF ¶¶ 60, 65. Such testimony alone is insufficient to 

demonstrate that Wells Fargo is the probable (not merely possible) proximate cause of 

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Plaintiffs’ alleged physical injuries and emotional distress. McGlenn, 2021 WL 4301476, at 

*10).

Nor is there sufficient evidence to show that Plaintiffs’ claimed emotional conditions 

proximately caused the additional harms they allege. For example, Mrs. Garcia seeks to 

recover damages arising from her alleged inability to keep her job or find work. Compl. (Dkt. 

1) ¶ 115(H). Mrs. Garcia alleges that “[d]ue to the stress and subsequent deterioration of her 

physical and mental health, Mrs. Garcia was eventually forced to quit her job, which 

significantly and permanently derailed her professional career.” Id. But Plaintiffs cannot show 

that it was probable that Mrs. Garcia quit her job because of the foreclosure as opposed to her 

pre-existing health issues or other unrelated reasons. SUMF ¶ 9. Elena Briseño, Mrs. Garcia’s 

former co-worker, testified that Mrs. Garcia did not leave her job at Alivio because of the 

stress due to the foreclosure; instead, she left because of disagreements with leadership. Id. 

Another former co-worker, Susan Vega, similarly testified that Mrs. Garcia quit because of 

issues with management. Id. Martha Koehler, Mrs. Garcia’s spiritual advisor and supervisor 

at Hispanic Bible School, likewise testified that changes in management at Alivio played a 

role in Mrs. Garcia leaving her job at Alivio. Id. And there is no evidence that her career has 

been “permanently derailed” because of Wells Fargo. Compl. (Dkt. 1) ¶ 115(H). Mrs. Garcia 

returned to Alivio in 2020 to work on a temporary project. SUMF ¶ 9. Mrs. Garcia’s selfserving testimony does not create a triable issue on this record. See Brown v. I.C. Sys., Inc., 

2019 WL 1281972, at *7 (N.D. Ill. Mar. 20, 2019) (finding at summary judgment that 

plaintiff’s deposition testimony was insufficient to prove certain damages for ICFA claim 

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because any amount awarded based on her testimony would be “arbitrary and purely 

speculative”).

In sum, the record confirms that Plaintiffs cannot demonstrate with reasonable 

certainty or probability that Wells Fargo was the proximate cause of their claimed emotional 

distress damages. Having failed to establish this necessary element of their ICFA claim, it 

fails as a matter of law.

2. The Court Should Grant Wells Fargo Judgment as a Matter of Law on 

Plaintiffs’ Claims of Credit Harm.

The Court should also grant Wells Fargo judgment as a matter of law on Plaintiffs’ 

claims of credit harm.

Here, Plaintiffs seek damages in the form of “severe damage to [their] credit rating” 

and the “[i]nability to access credit to purchase a reliable automobile.” Obi Dec. at Ex. 37

(Julia Garcia’s Resp. to Interrog) at p. 9. Plaintiffs allege – but have no evidence that – their 

“creditworthiness was obliterated [and that] the foreclosure and bankruptcy they were often 

unable to finance anything and had difficulty procuring basic services and necessities.” 

Compl. ¶ 115(G). They also claim that this damage to their credit, in turn, caused them to be 

“unable to qualify to rent almost any form of housing in LaGrange Park, ultimately forcing 

them to live in a much less desirable area, where credit checks for apartments were not 

required.” ¶ 115(P)(d). They allege they “were unable to finance a car even at above-market, 

high interest rates[,] forc[ing] [Plaintiffs] to buy several cars of little value for cash.” Compl. 

¶ 115(P)(e).

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These allegations have no evidentiary basis. Indeed, the only record evidence on this 

subject refutes this claim. First, Mr. Garcia conceded that his credit score was negatively 

affected because he did not make his mortgage payments. SUMF ¶ 66. Next, it is undisputed 

that Plaintiffs’ car was repossessed years before the erroneous denial, which undoubtedly 

caused their credit score to suffer. Id. at ¶ 16. Similarly, Mrs. Garcia filed for bankruptcy, 

which likewise negatively affected her credit score. SUMF ¶ 44. Plaintiffs offer nothing but 

their own allegations, which do not suffice at this stage. See Bomar v. Pac. Union Fin., LLC, 

2017 U.S. Dist. LEXIS 62915, at *11–12 (N.D. Ill. 2017) (granting summary judgment on an 

ICFA claim because the plaintiff “offered no evidence . . . establishing that his credit score 

was diminished or that he paid excessive or unnecessary interest”). Moreover, the record here 

contains no evidence, as required, that “any third-party user obtained, let alone acted upon, 

the false information in Plaintiffs’ credit reports.” See Reeder v. HSBC USA, Inc., 2009 WL 

4788488, at *13–14 (N.D. Ill. Dec. 8, 2009) (ICFA claim did not even survive past the 

pleadings for failure to allege “that any third-party user obtained, let alone acted upon, the 

false information in Plaintiffs’ credit reports”). Accordingly, summary judgment should be 

entered in favor of Wells Fargo on this element of Plaintiffs’ alleged damages.

V. CONCLUSION

Plaintiffs cannot adduce the required evidence establishing a causal connection 

between their claimed injuries and Wells Fargo’s alleged wrongdoing in denying their August 

2010 trial modification. Nor can they establish their entitlement to certain damagesthey claim

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26 

or an unfair act under the ICFA, as they must. Plaintiffs cannot prove these essential elements 

of their claim, so summary judgment must be entered in favor of Wells Fargo. 

For these reasons, Wells Fargo respectfully requests summary judgment be entered in 

its favor and for any such further relief that this Court deems just and proper. 

Dated: June 10, 2022 Respectfully submitted, 

/s/ Angela A. Smedley

Angela A. Smedley (pro hac vice) 

Winston & Strawn LLP 

200 Park Avenue 

New York, NY 10166 

Phone: 212-294-5348 

Fax: 212-294-4700 

Email: asmedley@winston.com 

Shawn R. Obi (pro hac vice) 

Winston & Strawn LLP

333 South Grand Avenue 

Los Angeles, CA 90071 

Phone: 213-615-1700 

Fax: 213-615-1750 

Email: SObi@winston.com

Christopher Parker 

Winston & Strawn LLP 

35 West Wacker Drive 

Chicago, IL 60601 

Phone: 312-558-8085 

Fax: 312-558-5700 

Email: cparker@winston.com 

Attorneys for Wells Fargo Bank, N.A

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1 

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on the 10th day of June, 2022, she electronically 

filed the foregoing Memorandum of Law In Support of Defendant’s Motion For Summary 

Judgment with the Clerk of the Court using the ECF system which will send notification of 

such filing to the following: 

Rusty A. Payton 

Payton Legal Group 

20 North Clark Street, Suite 3300 

Chicago, Illinois 60602 

(773) 682-5210 

info@payton.legal 

Salvador J. Lopez 

Robson & Lopez, LLC 

180 W. Washington Street, Suite 700 

Chicago, Illinois 60602 

(312) 525-2166 

lopez@robsonlopez.com 

Nicholas H. Wooten 

Nick Wooten, LLC 

5125 Burnt Pine Drive 

Conway, Arkansas 72034 

(833) 937-6389 

nick@nickwooten.com 

Attorneys for Plaintiff

 /s/ Shawn R. Obi 

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