Under Montana law, the ordinary banking or lending relationship between a bank and its customer is a simple, arms-length, debtor/creditor relationship. Morrow v. Bank of America, N.A., 324 P.3d 1167, 1177 (Mont. 2014) (citation omitted). That common relationship does not impose fiduciary responsibilities upon the lender with respect to its conduct towards a borrower.

Mont. Code Ann. § 30-14-103. Morrow v. Bank of America, N.A., 324 P.3d 1167, 1184 (Mont. 2014). An act or practice is deemed "unfair if it 'offends established public policy and ... is either immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.'"

In the loan applications and servicing context, the relationship between a lender and borrower “is generally a nonfiduciary, arms-length contractual relationship limited to express contract duties and the implied duty of good faith and fair dealing.” ReconTrust, 407 P.3d at 697 (citing Morrow v. Bank of America, N.A., 324 P.3d 1167, 1177 (Mont. 2014)). However, “extraordinary circumstances . . . may independently give rise to a general or fiduciary duty of care.”

Additionally, a lender owes "a duty to a borrower not to make material misrepresentations about the status of an application for a loan modification." Morrow v. Bank of America, N.A., 324 P.3d 1167, 1184 (Mont. 2014) (citing Lueras v. BAC Home Loans Servicing, LP, 163 Cal. Rptr. 3d 804 (Cal. App. 4th Dist. 2013)).

"Once a prima facie case is established, '[a]ctual fraud is always a question of fact.'" Morrow v. Bank of America, N.A., 324 P.3d 1167, 1183 (Mont. 2014) (citing Mont. Code Ann. § 28-2-404). "[C]onstructive fraud is a breach of duty which, without fraudulent intent, creates an advantage for the breaching party by misleading another person to that person's prejudice."

Generally, the ordinary lending relationship between a bank and its customer is that of a debtor and creditor and "does not give rise to fiduciary responsibilities." Morrow v. Bank of America, N.A., 324 P.3d 1167, 1177 (Mont. 2014). Further, "a bank has no duty to modify or renegotiate a defaulted loan." Id.

(Doc. 28 at ¶ 35.) Cf. Morrow v. Bank of America, N.A., 324 P.3d 1167, 1181-84 (Mont. 2014) (finding genuine issues of material fact existed to support detrimental reliance and claims of actual and constructive fraud where evidence suggested the lender represented to, and advised, the borrower (1) to intentionally miss a monthly payment to invoke the loan modification process, (2) that it had actually approved the borrower for a modification, (3) to make reduced monthly payments, (3) to ignore default notices from the lender, and (4) to ignore the borrower's obligation to cure the default, thereby causing the borrower's default, causing the amount the borrower owed to cure the default to grow, and causing foreclosure to occur). C. Montana Consumer Protection Act

A promissory note is a written contract and may be modified in writing or by an executed oral agreement. Morrow v. Bank of American, N.A., 324 P.3d 1167, 1175 (Mont. 2014); Mont. Code Ann. § 28-2-1602. "An executed oral agreement exists where the obligations of both parties have been fully performed, and nothing remains to be done by either party.

Thes elements of negligent misrepresentation do not include business transactions. In Morrow v. Bank of America, 324 P.3d 1167 (Mont. 2014), the Montana Supreme Court recently recognized that Kitchen Krafters expanded the Restatement definition of negligent misrepresentation and that negligent misrepresentations may occur outside the context of business transactions. Morrow, 324 P.3d at 1180; Jackson v. Dep't of Family Svcs., 956 P.2d 35 (Mont.

Defendants' conduct was not "beyond the ordinary role of a lender of money," and Defendants did not "actively advise[] [Burrington] in the conduct of [his] affairs." See Morrow v. Bank of America, N.A., 324 P.3d 1167, 1177 (Mont. 2014) (citing Deist v. Wachholz, 678 P.2d 188, 193 (Mont. 1984)); see alsoAnderson v. ReconTrust Co., N.A., 407 P.3d 692, 699 (Mont. 2017) (finding that the borrowers did not receive advice "beyond basic information about HAMP and whether they qualified for loan modification under the program" and were not induced to default on their loan).