United States Seventh Circuit

In plaintiff's suit against defendant mortgage companies under the federal Real Estate Settlement Procedures Act (RESPA), and under Illinois law for gross negligence, breach of contract, and willful and wanton negligence, district court's dismissal of the gross negligence claim and grant of summary judgment on the breach of contract, RESPA, and remaining negligence claims is reversed in part, affirmed in part and remanded where: 1) summary judgment for defendant on the plaintiffs' RESPA claim is reversed as the district court erred in concluding that defendant was entitled to the protection of the RESPA safe harbor provision in 12 U.S.C. section 2605(f)(4) as defendant did not argue, and nothing in the record shows, that defendant "notified the person concerned of the error," as required to invoke the protection, and on this basis alone, defendant was not eligible for protection in the RESPA safe harbor; 2) summary judgment for defendant on plaintiffs' breach of contract claim is reversed as a reasonable trier of fact could find that plaintiffs' failure to remit their October 2004 payment in a timely manner was excused due to the lenders' earlier breaches and errors and the resulting confusion surrounding their account; 3) the trial court's dismissal of plaintiffs' negligence claims is affirmed as plaintiffs have made no showing of a fiduciary relationship between the parties; and 4) although the district court did not address the question of damages, plaintiffs have raised disputed issues of material fact that bar summary judgment on this basis.

Appellate Information

• Argued 02/12/2010
• Decided 01/10/2011
• Published 01/10/2011

Judges

• HAMILTON

Court

• United States Seventh Circuit

Counsel