Judge Feinerman's analysis in FirstMerit Bank, N.A. v. Quanstrom-Rose L.L.C., 2013 WL 6577028, at *2 (N.D. Ill. 2013), is instructive: Defendants' affirmative defense to the breach of promissory note claim to invoke the in pari delicto doctrine, which is equivalent in all pertinent respects to unclean hands and which indisputably applies to actions at law.
The court notes that cases cited by Wells Fargo do not address this issue in the negligence context. Kinsella v. Cap. One, No. 17 C 05236, 2018 WL 5884520, at *5 (N.D. Ill. Nov. 9, 2018) (in the fraud context); Bank of Am., N.A. v. 108 N. State Retail LLC, 401 Ill. App. 3d 158, 165-75, 928 N.E.2d 42, 50-58 (1st Dist. 2010) (in the context of succeeding on the merits of the underlying foreclosure); FirstMerit Bank v. Quanstrom-Rose, 12 C 10051, 2013 WL 6577028, at *4 (N.D. Ill. Dec. 13, 2013) (unclean hands defense); N. Tr. Co. v. VIII S. Mich., 276 Ill. App. 3d 355, 368, 657 N.E.2d 1095, 1104-05 (1st Dist. 1995) (covenant of good faith and fair dealing). In Illinois, "one who undertakes, gratuitously or for consideration, to render services to another is subject to liability for . . . harm caused to the other by one's failure to exercise due care in the performance of the undertaking."