2016 IL App (1st) 143592
No. 1-14-3592
FIFTH DIVISION
March 31, 2016
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
THE PEOPLE ex rel. LISA MADIGAN, Attorney )
General of Illinois, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 11 CH 33666
)
MATTHEW WILDERMUTH, GEORGE KLEANTHIS, )
Individually and as Managing Member of Legal )
Modification Network, LLC, and LEGAL )
MODIFICATION NETWORK, LLC, ) Honorable
) Diane J. Larsen,
Defendants-Appellants. ) Judge Presiding.
______________________________________________________________________________
JUSTICE LAMPKIN delivered the judgment of the court, with opinion.
Presiding Justice Reyes and Justice Gordon concurred in the judgment and opinion.
OPINION
¶1 This appeal presents a certified question that deals with the pleading requirements for the
Attorney General of Illinois for a claim under section 3-102(B) of the Illinois Human Rights Act
(Act) (775 ILCS 5/3-102(B) (West 2010)). Specifically the Attorney General filed a complaint
alleging, inter alia, that defendants Matthew Wildermuth, George Kleanthis, and Legal
Modification Network, LLC (LMN) violated section 3-102(B) of the Act by engaging in a real
estate transaction and, because of unlawful discrimination, altering the terms, conditions, or
No. 1-14-3592
privileges of the real estate transaction or the furnishing of facilities or services in connection
therewith. The Attorney General also alleged the defendants intentionally targeted their predatory
practices against minorities by aiming their advertising at African-Americans and Latinos. The
circuit court denied defendants’ motion to dismiss this claim. After also denying defendants’
motion to reconsider, the court certified the following question for interlocutory appeal under
Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010):
“Whether the State may claim a violation under the [Act] pursuant to a reverse
redlining theory where it did not allege that the defendant acted as a mortgage
lender.”
¶2 For the reasons that follow, we answer the certified question in the affirmative.
¶3 I. BACKGROUND
¶4 The Attorney General filed its original complaint against defendants in September 2011
and subsequently filed a four-count fourth-amended complaint, which alleged the defendants had
engaged in a course of conduct that violated several statutory and regulatory provisions. Count IV,
(which is the only count that concerns us here) alleged that defendants Wildermuth, an attorney,
and Kleanthis, a veteran of the real estate business and the sole managing member of LMN,
engaged in acts and practices that violated section 3-102(B) of the Act and constituted a pattern
and practice of discrimination when they partnered to offer loan modification services to Illinois
consumers. Eventually, LMN ceased functioning and Wildermuth and Kleanthis provided the loan
modification services through Wildermuth’s law offices. The Attorney General alleged defendants
engaged in “real estate transactions” as defined by section 3-101(B) of the Act by claiming to
negotiate loan modifications and short sales on behalf of their clients.
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¶5 The Attorney General alleged that after the collapse of the housing market, the federal
government largely created the loan modification market through a number of programs designed
to assist delinquent and underwater homeowners avoid foreclosure. However, unscrupulous
private, for-profit enterprises proliferated and seized on consumer confusion and desperation,
often targeted minority homeowners, and falsely offered guarantees on loan modifications and
charged exorbitant and nonrefundable fees for services the enterprises could not perform.
¶6 The Attorney General alleged defendants advertised on radio that they would succeed
where other loan modification providers had failed, help consumers save their homes and obtain
significant reductions on their monthly mortgage payments, and obtain modifications for
consumers within a short time frame. Consumers who contacted defendants were scheduled for
meetings with nonattorneys at defendants’ Woodridge, Illinois office and given aggressive sales
pitches. Defendants’ intake and sales staff made unreasonable assurances about defendants’
likelihood of successfully modifying the consumers’ mortgage loans, including promises to reduce
the consumers’ monthly mortgage payments by a specific amount and in a specific period of time.
However, despite their broad assurances, defendants’ services consisted primarily of merely filling
out and submitting the paperwork to apply for a traditional affordable home loan modification
program.
¶7 The Attorney General alleged defendants failed to provide any of the disclosures and
notices mandated by the Illinois Mortgage Rescue Fraud Act (765 ILCS 940/1-1 et seq. (West
2010)) or the federal Mortgage Assistance Relief Services Rule (12 C.F.R. § 1015.1 et seq. (2012))
and charged consumers nonrefundable fees that ranged from $3,000 to $5,000, which often
exceeded the consumers’ monthly mortgage payments. The consumers paid the fees in advance of
receiving services and were led to believe that a portion of their payments would be refunded if
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No. 1-14-3592
defendants failed to obtain a loan modification. Defendants routinely required and accepted
advance payments from consumers whom defendants knew were not eligible for loan
modifications because defendants knew the consumers did not meet the basic eligibility
requirements under the affordable home loan modification program. When defendants obtained
loan modifications for consumers, the modifications often were either inconsistent with the
promised terms or not obtained within the promised time frame. When defendants were not able to
obtain a loan modification, they would suggest listing the consumer’s property as a short sale.
When a consumer requested a refund, in most cases defendants refused to tender a refund.
¶8 The Attorney General alleged defendants intentionally discriminated in the furnishing of
facilities or services in connection with real estate transactions on the basis of race and national
origin by targeting the African-American and Latino communities. Defendants’ actions in
targeting disproportionately subjected African-American and Latino homeowners to defendants’
fraudulent scheme and resulted in the loss of thousands of dollars and, in many cases, the loss of
homes. Defendants’ discriminatory acts involving targeting included: (1) the exclusive
advertisement of their services through radio stations known to have a predominantly Latino or
African-American audience; and (2) the use of a well-known radio personality in the
African-American community to promote defendants’ services, which were carelessly or never
performed. Defendants’ scheme affected African-American and Latino homeowners who, in an
effort to save their homes, gave defendants thousands of dollars without receiving any of the
benefits defendants claimed to be able to provide.
¶9 Defendants moved to dismiss count IV of the fourth-amended complaint under section
2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2012)), asserting the complaint
failed to state a violation of section 3-102(B) of the Act because Wildermuth rendered legal
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No. 1-14-3592
services and was not engaging in real estate transactions as defined in the Act. Defendants also
asserted the Attorney General failed to allege facts showing that defendants treated
African-Americans or Latinos differently than other groups.
¶ 10 In response, the Attorney General asserted defendants engaged in real estate transactions
within the meaning of the Act when they negotiated loan modifications and short sales on behalf of
consumers. Furthermore, the Attorney General, citing reverse redlining cases involving the federal
fair housing statute, asserted it was not necessary to show disparate treatment or impact because
the Attorney General alleged facts showing direct evidence that defendants intentionally targeted
predatory practices against minorities, specifically, radio advertising aimed at African-Americans
and Latinos.
¶ 11 The trial court denied defendants’ motion to dismiss, concluding they functioned as
mortgage brokers when they conducted short sale negotiations and sought loan modifications.
Thereafter, defendants moved the court to reconsider the denial or certify a question to this court
for interlocutory review. The trial court denied the motion to reconsider but certified for review the
following question:
“Whether the State may claim a violation under the [Act] pursuant to a
reverse redlining theory where it did not allege that the defendant acted as a
mortgage lender.”
Over the Attorney General’s objection, this court granted defendants’ application for leave
to appeal.
¶ 12 II. ANALYSIS
¶ 13 Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010) allows for a permissive appeal of an
interlocutory order certified by the trial court involving a question of law as to which there is
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No. 1-14-3592
substantial ground for difference of opinion and where an immediate appeal may materially
advance the ultimate termination of the litigation. Brookbank v. Olson, 389 Ill. App. 3d 683, 685
(2009). However, the rule was not intended to be a mechanism for expedited review of an order
that merely applies the law to the facts of a particular case. Walker v. Carnival Cruise Lines, Inc.,
383 Ill. App. 3d 129, 133 (2008); Morrissey v. City of Chicago, 334 Ill. App. 3d 251, 258 (2002).
Nor does it permit us to review the propriety of the order entered by the lower court. Walker, 383
Ill. App. 3d at 133. Rather, we limit our review to answering the specific question certified by the
trial court to which we apply a de novo standard of review. See Moore v. Chicago Park District,
2012 IL 112788, ¶ 9.
¶ 14 The fundamental rule of statutory construction is to ascertain and give effect to the
legislature’s intent. DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006). The language of the statute is
the best indication of legislative intent, and we give that language its plain and ordinary meaning.
Ready v. United/Goedecke Services, Inc., 232 Ill. 2d 369, 375 (2008). In determining the plain
meaning of a statute’s terms, we consider the statute in its entirety, keeping in mind the subject it
addresses, and the apparent intent of the legislature in enacting the statute. Ready, 232 Ill. 2d at
375. We may not depart from the plain language of the statute by reading into it exceptions,
limitations, or conditions that conflict with the express legislative intent. Town & Country
Utilities, Inc. v. Illinois Pollution Control Board, 225 Ill. 2d 103, 117 (2007). “[A] court should not
attempt to read a statute other than in the manner in which it was written.” Ultsch v. Illinois
Municipal Retirement Fund, 226 Ill. 2d 169, 190 (2007).
¶ 15 The Act states that it is the public policy of Illinois to “secure for all individuals within
Illinois the freedom from discrimination against any individual because of his or her race, color,
religion, sex, national origin, ancestry, age, order of protection status, marital status, physical or
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mental disability, military status, sexual orientation, pregnancy, or unfavorable discharge from
military service in connection with employment, real estate transactions, access to financial credit,
and the availability of public accommodations.” 775 ILCS 5/1-102 (West 2014). Because the Act
is remedial legislation, it must be construed liberally to give effect to its purposes. Arlington Park
Race Track Corp. v. Human Rights Comm’n, 199 Ill. App. 3d 698, 703 (1990). Illinois courts
interpreting the terms of section 3-102(B) of the Act have looked to federal case law interpreting
comparable provisions the federal Fair Housing Act (FHA) (42 U.S.C. §§ 3601-3631 (2006)), and
other civil rights statutes. See Szkoda v. Human Rights Comm’n, 302 Ill. App. 3d 532, 539-40
(1998) (examining relevant federal law to determine what constitutes sexual harassment under
section 3-102(B) of the Act, which has close parallels to section 3604 of the FHA).
¶ 16 Section 3-102(B) of the Act states, in relevant part, as follows:
“Civil Rights Violations; Real Estate Transactions. It is a civil rights violation for
an owner or any other person engaging in a real estate transaction, or for a real
estate broker or salesman, because of unlawful discrimination or familial status, to
***
(B) Terms. Alter the terms, conditions or privileges of a real estate
transaction or in the furnishing of facilities or services in connection therewith[.]”
775 ILCS 5/3-102(B) (West 2010).
¶ 17 Section 3-101 of the Act contains the following definitions:
“(B) Real Estate Transaction. ‘Real estate transaction’ includes the sale,
exchange, rental or lease of real property. ‘Real estate transaction’ also includes the
brokering or appraising of residential real property and the making or purchasing of
loans or providing other financial assistance:
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No. 1-14-3592
(1) for purchasing, constructing, improving, repairing or maintaining a
dwelling; or
(2) secured by residential real estate.
***
(D) Real Estate Broker or Salesman. “Real estate broker or salesman”
means a person, whether licensed or not, who, for or with the expectation of
receiving a consideration, lists, sells, purchases, exchanges, rents, or leases real
property, or who negotiates or attempts to negotiate any of these activities, or who
holds himself or herself out as engaged in these.” 775 ILCS 5/3-101(B), (D) (West
2010).
¶ 18 Because we are limiting our review to the certified question, we discuss only the
parties’ arguments on appeal that are relevant to the certified question. Defendants contend
the conduct alleged by the Attorney General does not technically constitute reverse
redlining because defendants did not extend credit or influence the terms and conditions of
credit to the consumers in the first instance. According to defendants, reverse redlining is a
viable theory where the alleged discriminator controlled or influenced the terms and
conditions under which borrowers were extended credit and those terms and conditions
were predatory and unfair. Defendants, however, represented homeowners who had
already procured credit to obtain their homes and to whom no new credit was extended.
¶ 19 To support their argument, defendants cite federal cases involving actions under the
FHA against mortgage companies that have described redlining as “ ‘the practice of
denying the extension of credit to specific geographic areas due to the income, race, or
ethnicity of its residents.’ ” Hargraves v. Capital City Mortgage Corp., 140 F. Supp. 2d 7,
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20 (D.D.C. 2000) (quoting United Cos. Lending Corp. v. Sargeant, 20 F. Supp. 2d 192, 203
n.5 (D. Mass. 1998)). The term “redlining” is derived from the actual practice of drawing a
red line around designated areas in which credit is to be denied. Sargeant, 20 F. Supp. 2d at
203 n.5. Reverse redlining has been described as “ ‘the practice of extending credit on
unfair terms to those same communities.’ ” Hargraves, 140 F. Supp. 2d at 20 (quoting
Sargeant, 20 F. Supp. 2d at 203 n.5).
¶ 20 Defendants argue that in order to allege discrimination under the Act pursuant to a
reverse redlining theory, the Attorney General must establish that defendants (1) engaged
in lending practices and loan terms that were predatory and unfair, and (2) either
intentionally targeted the consumers because of their race, or that the defendants’ lending
practices had a disparate impact on the basis of race. Defendants contend the Attorney
General cannot meet this pleading requirement because the alleged misconduct fails to
establish that defendants extended credit to any consumer and, thus, the Attorney General
cannot show that defendants targeted a certain class of consumers to whom defendants
extended credit on materially less favorable terms.
¶ 21 Furthermore, defendants argue the Attorney General failed to allege they extended credit to
any consumer or had the opportunity to affect the terms of credit through which the consumers
obtained or refinanced their residential property in any way. Defendants contend that they are not
mortgage brokers and their representation of delinquent borrowers does not constitute “engaging
in real estate transactions” pursuant to section 3-102(B) of the Act. Although the Attorney General
alleged defendants claimed to negotiate loan modifications and short sales on behalf of clients,
defendants argue the Attorney General failed to allege any facts to suggest defendants acted in the
capacity of a mortgage broker. Defendants also argue that the conduct alleged by the Attorney
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No. 1-14-3592
General does not bring defendants within the section 3-101(B) definition of a real estate
transaction.
¶ 22 The Attorney General argues this court should answer the certified question in the
affirmative because it alleged defendants targeted distressed African-American and Latino
homeowners for predatory practices with regard to mortgage loan modification services and
section 3-102(B) of the Act encompasses conduct other than mortgage lending, including the
negotiation and procurement of loan modifications and short sales.
¶ 23 The Attorney General argues defendants fall within the term “real estate broker or
salesman” pursuant to section 3-101(D) of the Act because they held themselves out as negotiating
and procuring short sales and loan modifications. According to defendants’ customer agreements
with the consumers, defendants stated that they would pursue various loss mitigation options,
including loan restructuring and short sale payoffs. When defendants could not obtain loan
modifications for their consumer clients, defendants generally suggested that the clients list the
property for a short sale, which is a sale of real property for less than the amount of encumbrances
on the property with the consent of the lien holders who are willing to accept less than what they
are owed. See In re Fabbro, 411 B.R. 407, 413 n.7 (Bankr. D. Utah 2009). The Attorney General
also argues defendants’ conduct of negotiating loan modifications puts them within the section
3-101(D) definition of a real estate broker because a mortgage conveys an interest in real property
to the mortgage lender to secure the debt created by the mortgage loan, so defendants, therefore,
were negotiating sales of interests in real property.
¶ 24 The sole distinct issue raised in this interlocutory appeal is whether the Attorney General
may claim a violation under the Act pursuant to a reverse redlining theory where the Attorney
General did not allege that the defendants acted as mortgage lenders. Neither the Attorney General
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nor defendants direct this court to, and this court is unaware of, any existing controlling law on this
issue.
¶ 25 Section 3-102 of the Act requires that the entity alleged to have violated this section be
either “a real estate broker or salesman” or “an owner or any other person engaging in a real estate
transaction.” 775 ILCS 5/3-102 (West 2010). Furthermore, the term real estate transaction, in
addition to meaning “the sale, exchange, rental or lease of real property, *** also includes the
brokering or appraising of residential real property and the making or purchasing of loans or
providing other financial assistance *** for purchasing, constructing, improving, repairing or
maintaining a dwelling ***.” 775 ILCS 5/3-101(B)(1) (West 2010). The plain language of the
statute does not require a defendant alleged to have violated section 3-102 to be a mortgage lender.
To the contrary, the plain language of this section merely requires that the entity engage in a real
estate transaction, which includes “providing other financial assistance *** for maintaining a
dwelling.” 775 ILCS 5/3-101(B)(1) (West 2010).
¶ 26 The Attorney General’s amended complaint alleged that defendants offered loan
modification services to consumers and utilized government programs that were designed to help
delinquent and underwater homeowners avoid foreclosure. Defendants, however, allegedly made
unreasonable assurances to clients about the likelihood of success in modifying the clients’ home
mortgage loans, carelessly or never performed the touted services, and charged the clients
exorbitant and nonrefundable fees for services of little or no value. Furthermore, the Attorney
General alleged defendants, because of unlawful discrimination, altered the terms, conditions or
privileges in the furnishing of facilities or services in connection with real estate transactions.
¶ 27 Clearly, defendants’ alleged conduct interfered with consumers’ ability to obtain a
particular type of financial assistance—residential loan modifications—for maintaining their
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homes against the risk of foreclosure. This conduct may be construed as providing other financial
assistance for maintaining a dwelling, especially in light of the allegation that defendants charged
consumers fees in connection with these services. The term other financial assistance is not
specifically defined in the Act, and section 3-102 does not require “other financial assistance” to
be in the form of a mortgage loan or otherwise. The Attorney General’s allegations concerning
defendants’ residential loan modification services are neither too far removed from transactions in
the residential real estate market nor lacking any connection to the financing of residential real
estate. Construing the Act—which is remedial legislation—liberally, we conclude that defendants’
alleged conduct brings them within the section 3-101 definition of a real estate transaction as
providing other financial assistance for maintaining a dwelling, and the section 3-102(B)
requirement concerning the furnishing of facilities or services in connection with a real estate
transaction that alters the terms, conditions or privileges of such a transaction based on unlawful
discrimination.
¶ 28 We find support for this position by looking to persuasive federal case law interpreting a
comparable provision of the FHA—section 3605 of the FHA—which closely parallels the
language of sections 3-101 and 3-102(B) of the Act. See Szkoda, 302 Ill. App. 3d at 539-40.
Federal courts have discussed the meaning of financial assistance in the context of section 3605 of
the FHA. The Seventh Circuit held that property or casualty insurance did not constitute financial
assistance because “[i]nsurers do not subsidize their customers or act as channels through which
public agencies extend subsidies.” National Ass’n for the Advancement of Colored People v.
American Family Mutual Insurance Co., 978 F.2d 287, 297 (7th Cir. 1992). In United States v.
Massachusetts Industrial Finance Agency, 910 F. Supp. 21, 28-29 (Mass. Dist. Ct. 1996), the court
held that a quasi-public agency’s action of channeling the proceeds from tax-exempt bonds to
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qualifying applicant organizations was extending financial assistance to those applicants.
Consistent with both American Family and Massachusetts Industrial, defendants here, although
admittedly not quasi-government agencies, hold themselves out as a channel through which relief
flows in the form of residential loan modifications via government programs designed to help
delinquent and underwater homeowners avoid foreclosures. The terms financial assistance in
section 3605 of the FHA and other financial assistance in section 3-101(B) of the Act are very
similar, and we find that the discussions of financial assistance in American Family and
Massachusetts Industrial support our conclusion that defendants’ alleged loan modification
conduct brings them within the section 3-101 definition of a real estate transaction as providing
other financial assistance for maintaining a dwelling.
¶ 29 Furthermore, in Eva v. Midwest National Mortgage Banc, Inc., 143 F. Supp. 2d 862 (N.D.
Ohio 2001), the plaintiffs, female borrowers, alleged, inter alia, that defendants, which included a
mortgage lender, its employees or agents, and a corporation—U.S. Mortgage Reduction, Inc.
(USMR), violated section 3605 of the FHA by engaging in a pattern or practice of predatory and
sexually discriminatory lending related to the refinancing of homes already owned by the
plaintiffs. Defendant USMR moved to dismiss the claim against it, arguing, inter alia, that section
3605 of the FHA applied to mortgage lenders, bankers, mortgage arrangers and creditors, but did
not apply to entities like USMR, which was a separate entity that merely managed and marketed a
program utilized by the other defendants in their alleged predatory, discriminatory, and fraudulent
mortgage refinancing scheme that extracted excessive funds from the plaintiffs. Id. at 872, 875,
878, 888-89. Specifically, USMR, according to the plaintiffs’ allegations, had signed the plaintiffs
up for the program and imposed transaction fees every time the plaintiffs made a mortgage
payment. Id.
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¶ 30 The Eva court rejected USMR’s argument, finding that the plain language of section 3605
of the FHA did not “require a defendant to be a mortgage lender, banker, mortgage arranger or
creditor.” “To the contrary, *** merely require[d] that the entity conduct business which ‘includes
engaging in residential real estate-related transactions.’ ” (Emphasis in original.) Id. at 889
(quoting 42 U.S.C. § 3605 (2000)). In addition, the court concluded that the term residential real
estate-related transaction included the conduct of “providing other financial assistance for
maintaining a dwelling,” and applied to USMR’s management of the program utilized by the
lender and the other defendants. Id. (citing 42 U.S.C. §§ 3605(b)(1)(A)-(B) (2000)).
¶ 31 We find that the relevant provisions of the FHA discussed in Eva are very similar to
sections 3-101 and 3-102(B) of the Act, and the alleged misconduct of defendant USMR in Eva
has close parallels to the alleged misconduct of defendants’ in the instant case. Accordingly, we
reject the premise that a section 3-102(B) claim against a defendant must allege the defendant was
a mortgage lender.
¶ 32 The interlocutory appeal question also asks whether the Attorney General must allege that
defendants acted as mortgage lenders because the Attorney General utilized a reverse redlining
theory to allege defendants engaged in unlawful discrimination by intentionally targeting on the
basis of race. This issue arises because the Attorney General utilized the reverse redlining theory,
i.e., the intentional targeting of African-Americans and Latinos, instead of pleading facts to show
unlawful discrimination by defendants based on their practices having a disparate impact on the
basis of race. See Hargraves, 140 F. Supp. 2d at 20 (a claim against the defendant mortgage
lenders for violating the FHA must show that (1) the defendants’ lending practices and loan terms
were unfair and predatory, and (2) the defendants either intentionally targeted on the basis of race
or there was a disparate impact on the basis of race).
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¶ 33 Defendants assert that although reverse redlining is a viable theory when the alleged
discriminator controlled or influenced the terms and conditions under which borrowers were
extended credit, reverse redlining is not applicable to situations where no new credit was extended
to homeowners who had already procured credit to purchase their homes. To support this
assertion, defendants cite federal cases analyzing reverse redlining theories of discrimination that
involved claims of FHA violations against mortgage lenders extending credit to borrowers. In
those cases, reverse redlining was described as the practice of extending credit on unfair terms to
specific geographical areas due to the income, race or ethnicity of the communities’ residents. See
Id.
¶ 34 We reject defendants’ assertion that the reverse redlining theory for proving discrimination
narrowly applies only to instances involving the extension of credit. Federal courts have addressed
cases that utilized the redlining or reverse redlining theories to allege discrimination in the context
of claims pursuant to the FHA involving the issuance and cancellation of property insurance
policies. See Nationwide Mutual Insurance Co. v. Cisneros, 52 F.3d 1351 (6th Cir. 1995);
American Family Mutual Insurance Co., 978 F.2d at 298. Furthermore, permitting evidence of
intentional targeting in the context of residential loan modification services as an alternative to
evidence of disparate treatment or impact is in keeping with the Act’s multiple aims of forbidding
practices that make housing unavailable to persons on a discriminatory basis as well as
discriminatory terms and conditions with respect to housing that is provided. The Act would
provide little vindication to the policy of nondiscrimination in housing if it prohibited
discrimination against individuals seeking a home or credit to purchase a home, but then
subsequently gave free reign to entities to discriminate against these same individuals seeking loan
modification services in order to avoid foreclosure. In the context of section 3-102 of the Act,
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reverse redlining is not strictly limited to the practice of mortgage lending; rather it more broadly
encompasses the conduct of engaging in predatory practices with respect to services related to real
estate transactions, as that term is broadly defined in section 3-101(D) of the Act, and directing
those predatory practices against members of minority groups.
¶ 35 Defendants cite Davis v. Wells Fargo Bank, 685 F. Supp. 2d 838 (2010), to support the
proposition that they cannot be liable under section 3-102(B) of the Act because the court in that
case construed the similar language of section 3605 of the FHA as applying only to transactions
involving the making or purchasing of loans. In Davis, the plaintiff was the victim of a predatory
mortgage in 1999; in 2007, a jury found that her loan was based on fraud and awarded her a
judgment against her original lender. Id. at 840-41. The plaintiff, however, was unable to collect
the judgment after the original lender went out of business. See Estate of Davis v. Wells Fargo
Bank, 633 F.3d 529, 533 (7th Cir. 2011). Meanwhile, the plaintiff’s loan was eventually assigned
to a new lender and was serviced by a new loan servicer, and a foreclosure proceeding was
initiated against the plaintiff when she failed to make her monthly payments. Davis, 685 F. Supp.
2d at 840. Thereafter, the plaintiff sued the new lender and loan servicer, alleging, inter alia, that
they violated section 3605 of the FHA by attempting to foreclose on her home and demanding
repayment of the loan and related fees despite a court finding that the loan was fraudulent. Id.
¶ 36 The district court granted summary judgment in favor of the defendant loan lender and
servicer, stating that the plaintiff failed to present any legal argument to support her section 3605
claim. Id. at 844. The district court then noted that the defendants did not directly enter into or
refuse to enter into any loan with the plaintiff and summarily concluded that section “3605 applies
only to transactions involving the ‘making or purchasing of loans.’ ” Id. (quoting 42 U.S.C.
§ 3605(a) (2009) and citing two unpublished district court cases). In reaching this conclusion, the
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district court failed to discuss or analyze the specific language of section 3605 that provides an
entity may be liable for providing other financial assistance for improving, repairing, or
maintaining a dwelling. See 42 U.S.C. § 3605(b)(1)(a) (2009). When the Seventh Circuit affirmed
the judgment of the district court on appeal, the Seventh Circuit did not review the district court’s
decision concerning the plaintiff’s section 3605 claim because she had abandoned any section
3605 claim. Estate of Davis, 633 F.3d at 539 n.3.
¶ 37 This court is not bound by the federal district court’s holding in Davis, and it does not
change our analysis. The Davis court did not address the statutory language concerning providing
other financial assistance for maintaining a dwelling, which is central to our holding in the instant
case. Furthermore, Davis is inapposite because the plaintiff forfeited her section 3605 claim and
the defendants did not directly engage in any transaction with her, either for the original mortgage
or the refinanced mortgage, and their involvement with her occurred merely in the context of a
foreclosure proceeding years after other entities had procured the fraudulent loan. Here, in
contrast, the Attorney General alleged that defendants directly engaged in real estate transactions
with consumers by intentionally targeting minority homeowners for residential loan modification
services, by giving the homeowners aggressive sales pitches and unreasonable assurances about
defendants’ ability to successfully modify the homeowners’ loans, and by charging exorbitant and
nonrefundable fees for services of little or no value.
¶ 38 We hold that the Attorney General may claim a violation under the Act pursuant to
a reverse redlining theory even though the Attorney General did not allege that defendants
acted as mortgage lenders because the concept of reverse redlining is not strictly limited to
situations involving mortgage lending and section 3-102(B) of the Act broadly
encompasses conduct other than mortgage lending, including the loan modification
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services that defendants offered. Accordingly, we answer the trial court’s certified question
in the affirmative.
¶ 39 III. CONCLUSION
¶ 40 For the foregoing reasons, we answer the certified question in the affirmative.
¶ 41 Certified question answered; cause remanded.
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