Hayes v. M & T Mortgage Corp.

16 Citing cases

  1. Leszanczuk v. Carrington Mortg. Servs.

    Case No. 19-cv-3038 (N.D. Ill. Mar. 25, 2020)   Cited 3 times   1 Legal Analyses
    Interpreting essentially identical mortgage language to allow imposition of single inspection fee at issue in that case, but noting that plaintiff was not without recourse because "the contract expressly limits Defendant's rights to collection inspection fees to those that are 'necessary'"

    And based on these principles, courts applying Illinois law hold that "a contract must display an intention to completely adopt" any external document or regulation. Hayes v. M & T Mortg. Corp., 389 Ill.App.3d 388, 390 (1st Dist. 2009) (refusing to read FHA-backed mortgage to incorporate HUD regulations that it vaguely referenced, because it did not "demonstrate an intent to make each loan regulation enforceable under the parties' agreement"); see also Dochak v. Polskie Linie Lotnicze LOT S.A., 189 F. Supp. 3d 798, 802-803 (N.D. Ill. 2016) (refusing to incorporate regulation because its incorporation was not "clear and specific") (citations and quotation marks omitted). Plaintiff implies that some or all HUD regulations are necessarily incorporated into FHA-backed loans.

  2. Wilmington Savings Fund Society v. Choi

    2021 Ill. App. 2d 200218 (Ill. App. Ct. 2021)   Cited 1 times

    We note, however, that a borrower may not bring private suit against a lender alleging the lender has violated HUD regulations unless the mortgage contract specifically incorporates the lender's compliance with HUD regulations into its terms. See Hayes v. M & T Mortgage Corp., 389 Ill.App.3d 388, 391 (2009). The mortgage contract must demonstrate "an intention to completely adopt" federal regulations, "not merely require compliance with specified portions."

  3. Leszanczuk v. Carrington Mortg. Servs.

    21 F.4th 933 (7th Cir. 2021)   Cited 8 times

    Mere reference to "HUD regulations fall[s] short of the showing necessary to demonstrate that the parties intended to incorporate the regulations, in their entirety, into their mortgage agreement." Hayes v. M & T Mortg. Corp. , 389 Ill.App.3d 388, 329 Ill.Dec. 440, 906 N.E.2d 638, 641 (2009). Leszanczuk fails to identify specific contractual language that shows an intent to completely adopt HUD regulations.

  4. Cain v. Redbox Automated Retail, LLC

    136 F. Supp. 3d 824 (E.D. Mich. 2015)   Cited 1 times

    However, "[t]o be construed as incorporating an entire second document, a contract must display an intention to completely adopt that document, not merely require compliance with specified portions." Hayes v. M & T Mortg. Corp. , 389 Ill.App.3d 388, 329 Ill.Dec. 440, 906 N.E.2d 638, 641 (2009) (emphasis added) (citation omitted). On this issue, the parties agree that Illinois law controls.

  5. Pettaway v. PHH Mortg. Servs. as Transferee of Ocwen Loan Servs.

    Civil Action 2:21-00294-JB-N (S.D. Ala. Sep. 23, 2021)

    Finally, the Court notes that Plaintiffs' argument that an alleged failure to offer loss mitigation warrants remand has nothing at all to do with removal jurisdiction. Plaintiffs contend “borrowers may raise lender noncompliance with FHA loss mitigation regulations as a defense to a foreclosure law suit, ” citing Hayes v. M&T Mortgage Corp., 906 N.E.2d 638 (Ill.App.Ct. 2009). (Doc. 7 at 10).

  6. Leszanczuk v. Carrington Mortg. Servs.

    Case No. 19-cv-3038 (N.D. Ill. Feb. 3, 2021)

    Finally, "[u]nder Illinois law, a document is incorporated by reference into the parties' contract only if the parties intended its incorporation," and that intent must be "clear and specific." 188 LLC v. Trinity Indus., Inc., 300 F.3d 730, 736 (7th Cir. 2002); see also Hayes v. M & T Mortg. Corp., 906 N.E.2d 638, 641 (Ill. App. 2009) (refusing to read FHA-insured mortgage to incorporate HUD regulations that it referenced because it did not "demonstrate an intent to make each loan regulation enforceable under the parties' agreement"); Dochak v. Polskie Linie Lotnicze LOT S.A., 189 F.Supp.3d 798, 802-803 (N.D. Ill. 2016) (refusing to incorporate regulation because its incorporation was not "clear and specific" (citations and quotation marks omitted)). As with Defendant's previous motion to dismiss, this issue comes down to "whether the express terms of the contract clearly imposed a limitation on Defendant's ability to collect inspection fees."

  7. Roberts v. Carrington Mortg. Servs.

    Case No. 19-cv-2355 (N.D. Ill. Nov. 6, 2020)

    The Court recently construed the same language, in a lawsuit also brought against Defendant, and concluded that it did "not expressly incorporate any limitation" from HUD regulations and therefore those regulations did not impose "a limitation on Defendant's ability to collect inspection fees." Leszanczuk, 2020 WL 1445612, at *4; see also Hayes v. M & T Mortg. Corp., 906 N.E.2d 638, 641 (Ill. App. 2009) (references to HUD regulations in mortgage agreement fell short of the showing necessary to demonstrate that the parties intended to incorporate the regulations, in their entirety, into their mortgage agreement; the provisions cited by mortgagor reflected only an acknowledgment that the lender's foreclosure rights under the mortgage were subordinate to applicable HUD regulation, but they did not demonstrate an intent to make each loan regulation enforceable under the parties' agreement).

  8. Components for Indus. v. Auto Kabel N. Am., Inc.

    Case No. 19-cv-7152 (N.D. Ill. Aug. 5, 2020)   Cited 1 times

    holding that contractual language providing that "passengers are entitled to rights provided for in the Regulation (EC) No 261/2004 of the European Parliament" was akin to a notice provision, and did not evince an intent to incorporate those regulations); Mandel Metals, Inc. v. Walker Group Holdings, 2015 WL 3962005, at *4-5 (N.D. Ill. June 26, 2015) (holding that "provision stating that each Purchase Order 'must be confirmed within 24 hours of receipt' per [defendant's] 'Terms and Conditions which can be found at: http:// www.walkergh.com/docs/index.html'" was silent as to whether the entire Terms and Conditions should be fully incorporated into the contract); Hartford Fire Ins. Co. v. Henry Bros. Const. Management Services, LLC, 2011 WL 3563138, at *6 (N.D. Ill. Aug. 10, 2011) (provision explaining that a contract "is intended to be used in conjunction with the 1992 edition [ ] of AIA Document * * * A201/CMa" did not clearly and specifically incorporate the A201/CMa by reference); Hayes v. M & T Mortg. Corp., 389 Ill. App. 3d 388, 390 (1st Dist. 2009) (affirming dismissal of breach of contract actions where provisions "reflect only an acknowledgment that the lender's foreclosure rights under the mortgage are subordinate to applicable HUD regulation; they do not demonstrate an intent to make each loan regulation enforceable under the parties' agreement"). Here, Defendant's motion fails because the relevant contractual provision was not "clear and specific" in at least two respects.

  9. Watkins v. Cit Grp.

    Case No.: 14 cv 02164 (N.D. Ill. Feb. 25, 2015)   Cited 2 times

    Id. See Hayes v. M & T Mortgage Corp., 906 N.E.2d 638, 642 (Ill. App. Ct. 2009) (noting the continued viability of Bankers Life Co.'s holding twenty years later). The court's reasoning in Bankers Life Co. appears equally applicable in the context of RESPA violations.

  10. Hutsler v. Wells Fargo Home Mortg., Inc.

    No. 4:12-CV-2184 CAS (E.D. Mo. Sep. 30, 2013)   1 Legal Analyses

    Defendant disagrees. It argues that the references to the HUD regulations in paragraph 9(d) do not demonstrate the parties intent to incorporate the regulations into their mortgage agreement. Defendant relies primarily on an Illinois state court case, Hayes v. M&T Mortg. Corp., 906 N.E.2d 638, 642 (Ill. App. Ct. 2009). In Hayes, the court found the provisions of paragraph 9(b) "reflect only an acknowledgment that the lender's foreclosure rights under the mortgage are subordinate to applicable HUD regulation; they do not demonstrate an intent to make each loan regulation enforceable under the parties agreement."