Opinion
Case No. 4:09-cv-47.
August 20, 2010
Summary: The Defendant filed a motion for summary judgment arguing no issues of material fact were present and it was entitled to judgment as a matter of law. The Court granted in part and denied in part the motion. The Court dismissed the claims for unjust enrichment and consumer fraud but allowed the claims for breach of contract, fraud, and negligent misrepresentation to go forward.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Before the Court is the Defendant's motion for summary judgment filed on June 30, 2010. See Docket No. 10. The Plaintiffs filed a response in opposition to the motion on July 30, 2010. See Docket No. 13. The Defendant filed a reply on August 13, 2010. See Docket No. 15. For the reasons explained below, the motion is granted in part and denied in part.
I. BACKGROUND
This dispute grows out of a loan the plaintiffs, Vance and Arlene Castleman, obtained from the defendant, Wells Fargo Bank, for the construction of a sixteen-unit apartment building located in Minot, North Dakota. The Castlemans are residents of Minot who have successfully developed a number of hotels, apartment complexes, and other commercial real estate developments in North Dakota beginning in 1982. They have no formal education beyond high school but do consider themselves sophisticated borrowers, having borrowed forty to fifty million dollars over the years from many different banks in Minot to finance their commercial developments. Typically, the Castlemans would obtain financing, oversee construction, manage the property for three to five years and then sell the property and repay the loan. The transaction in question was not the first time the Castlemans had used Wells Fargo to finance a project.
In 2003, the Castlemans approached Wells Fargo regarding financing a sixteen-unit apartment building. They informed Wells Fargo that they were looking for a loan amortized over a long period of time with the lowest fixed interest rate possible. They also wanted to make sure the loan was assumable and that it did not have any prepayment penalties. Wells Fargo vice president Todd Gerber, a Wells Fargo vice president, responded with a letter proposal dated October 15, 2003, in which he outlined three financing options:
Amortization: Fully amortizing over 20 years; monthly payments Interest Rate: Option 1: Fixed rate for 3 years at 5.40%. Option 2: Fixed rate for 5 years at 6.00%. Option 3:Variable rate at Wells Fargo Prime. Floor of 4.0% and ceiling of 7.5% for 7 years. The ability to convert to a fixed rate during the term to be negotiated at that time. Fees: No fee at conversion to permanent financing. See Docket No. 11-2. Discussions between the Castlemans and Wells Fargo, specifically Todd Gerber and Jacqueline Duke, a Wells Fargo business banker, continued into 2004 and ultimately resulted in a more complex financing arrangement than had been contemplated in the letter proposal. The Castlemans signed a mortgage on November 12, 2004. See Docket No. 11-2, pp. 2-14. A Forward Rate Lock Agreement was signed on January 27, 2005. See Docket No. 11-5. This agreement recited Wells Fargo's conditional commitment to loan the Castlemans $975,000. The Forward Rate Lock Agreement refers to a "Cap Rate" of 7.25% and a "Floor Rate" of 7.25% which together constitute the interest rate "Collar." The effect of the "Collar" was to provide a 7.25% fixed rate on the Castlemans' loan. See Docket No. 13-6. The loan was to be executed prior to December 5, 2005, and if that did not occur the Castlemans were obligated to pay a "Collar Rate Adjustment Fee." See Docket No. 11-5. The "Collar Rate Adjustment Fee" was defined as follows:
(a) In order to establish the Collar and perform its obligations under this Agreement, Bank may hedge in the financial market or otherwise make arrangements or take actions to permit it to carry out its obligations under this Agreement. Such actions may result in various costs and risks to Bank in addition to those normally attributable to the Loan. Accordingly, Bank is willing to enter into this Agreement only upon the condition that, if the Closing Date does not occur on or before the last day of the Forward Collar Period for any reason, Borrower unconditionally agrees to pay Bank, immediately upon demand by Bank, the Collar Rate Price Adjustment Fee which amount shall be in addition to any other amounts Borrower owes Bank under the Loan Documents. Borrower hereby agrees to pay to Bank the Collar Rate Price Adjustment Fee when due, and acknowledges that the Collar Rate Price Adjustment Fee is a reasonable estimate of the amount of such additional costs as well as reasonable compensation for Bank's incurring of such additional risks.
(b) The "Collar Rate Price Adjustment Fee" shall be an amount equal to the sum of (I) an amount reasonably determined by Bank to be the cost to offset the Collar, if any, as determined by the collar market, or if there then exists no collar market, an amount reasonably determined by Bank on the Notification Date for a collar of an amount approximately equal to the Loan Amount for a term equal to the remaining term until the Collar Maturity Date and (ii) an amount equal to the amount of any increase, if any, in Taxes and/or Regulatory Costs incurred by Bank in connection with the transactions provided for under this Agreement over those in effect on the date hereof.
(c) Borrower agrees and acknowledges that Bank has no obligation to purchase, sell and/or match funds in connection with the Collar or any other of its obligations under this Agreement.See Docket No. 11-5 (emphasis added).
On February 9, 2005, the Castlemans entered into a Construction Loan Agreement, Business Loan Agreement, Promissory Note, and Mortgage Modification Agreement, See Docket Nos. 13-9, 13-10, 13-11, and 11-3. Pp. 1-2. The February 9, 2005 Promissory Note specified a principal amount of $975,000, a variable interest rate, initially set at 5.5%, and no prepayment penalty. See Docket No. 13-11. The Business Loan Agreement contained a clause requiring the Castlemans to pay a $5 million fee if Wells Fargo did not originate the permanent loan. See Docket No. 13-10.
The loan was funded on December 1, 2005, when the Castlemans signed a second Promissory Note and an accompanying Addendum to Promissory Note. See Docket Nos. 13-12 and 13-14. The December 1, 2005 Promissory Note specifies a principal loan amount of $975,000 amortized over a twenty year period with a variable interest rate, initially set at 6.22%, and no prepayment penalties. The Addendum to Promissory Note modifies the December 1, 2005 Promissory Note by converting the variable rate into a 7.25% fixed rate and providing the potential for an early termination or prepayment fee. The language in the Addendum to Promissory Note is very similar to the language in the Forward Rate Lock Agreement which provided for a "Collar Rate Price Adjustment Fee." It is the Addendum to the December 1, 2005 Promissory Note which lies at the heart of this dispute; the relevant portion of which provides as follows:
Payments Upon Prepayment or Early Termination. In order to establish the Collar, it may be necessary or advisable for Lender to "hedge" an amount equal to the principal amount of this Note in the financial market or to otherwise make arrangements or take actions to permit Lender to carry out its obligations hereunder, which actions may result in various costs and risks to Lender beyond those Lender would otherwise incur with respect hereto. Accordingly, if Borrower prepays all or any portion of this Note prior to the Collar Maturity Date or if this Note becomes due and payable at any time prior to the Collar Maturity Date by acceleration or otherwise, Borrower agrees to pay to Lender immediately upon demand by Lender an amount reasonably determined by Lender to be the cost to offset the Collar if any, as determined by the collar market, or if there then exists no collar market an amount reasonably determined by Lender, at the time of prepayment or early termination for a collar in an amount approximately equal to the principal amount prepaid or the outstanding principal balance of this Note on such early termination date and for a term equal to the remaining term until the Collar Maturity Date. Borrower acknowledges and agrees that such amount constitutes a reasonable estimate of Lender's additional costs for providing the Collar, as well as reasonable compensation for Lender's incurring of the additional risks associated therewith.See Docket No. 13-14 (emphasis in original).
Aside from a Change in Terms Agreement executed on January 23, 2006, which appears to have simply corrected a typographical error in the repayment schedule (See Docket No. 11-3, p. 15), things went smoothly with the loan until late 2008. In August of 2008, the Castlemans received an offer to purchase the sixteen-unit apartment building. After the purchase agreement was signed, the Castlemans contacted Wells Fargo in order to obtain the payoff amount on the loan. In response, Wells Fargo provided them with a computer printout or screenprint which showed they owed $934,160 in principal and $67,350.34 in interest for a total of $1,001,510.34. See Docket No. 13-15. The Castlemans were surprised by the interest charge as they had been making all their payments in a timely fashion. Vance Castlemans contacted Howard Palmer at Wells Fargo for an explanation of the interest charge. See Docket No. 11-3, p. 21. Palmer explained that the interest charge was a termination fee for the derivative. See Docket No. 14, p. 7. Vance Castleman emailed Daryl Hodnefield, President of Wells Fargo Minot, on September 3, 2008 to protest the termination fee and explain that he had been assured the loan was assumable and had no prepayment penalty. See Docket No. 11-3, p. 22-23.
On or about September 4, 2008, Wells Fargo provided the Castlemans with a second Payoff Statement which stated, in relevant part:
In response to your recent request for a payoff quote, the following is a breakdown of the amount due:
The principal amount due is: $934,160.00 Interest through September 4, 2008 ONLY $4,515.11 There are release fees due in the amount of: $0.00 The prepayment penalty is: $0.00 Derivative Fee $86,700.00 The total payoff will be: $1,025,375.11. . .
This payoff is subject to change should the principal balance change. If you should payoff on a different day, the interest will need to be adjusted accordingly. Any prepayment penalty fees quoted are valid for a period of 30 days.
See Docket No. 13-16.
On September 5, 2008, Wells Fargo provided the Castlemans with a third Payoff Statement which stated, in relevant part:
In response to your recent request for a payoff quote, the following is a breakdown of the amount due:The principal amount due is: $934,160.00 Interest through September 5, 2008 ONLY $4,703.24 There are release fees due in the amount of: $0.00 The prepayment penalty is: $0.00 Derivative Fee $99,000.00 The total payoff will be: $1,037,863.24
. . .
This payoff is subject to change should the principal balance change. If you should payoff on a different day, the interest will need to be adjusted accordingly. Any prepayment penalty fees quoted are valid for a period of 30 days . . .See Docket No. 13-17.
Brian Knapp, a Wells Fargo interest rate specialist who works out of Minneapolis, Minnesota, testified that he calculated the derivative fee using a proprietary model. See Docket No. 11-9, pp. 2 and 7. Knapp testified that the derivative fee fluctuated in the days leading up to closing due to changes in the financial markets. See Docket No. 11-9, pp. 6-7.
The Castlemans went forward with the sale of the sixteen-unit apartment building on September 5, 2008. They paid Wells Fargo the total amount set forth in the September 5, 2008, payoff statement, including the $99,000 derivative fee, while making it clear that they were doing so under protest. See Docket Nos. 11-3, pp. 22-23 and 11-1, pp. 15-16. The sixteen-unit apartment building was sold at a profit despite the $99,000 derivative fee.See Docket No, 11-1, p. 14. It now appears that the $99,000 derivative fee may have been in error and the correct amount should have been $91,000. See Docket No. 13-18. The Castlemans maintain the $8,000 overpayment was never refunded to them although Howard Palmer, the Wells Fargo banker who worked on the closing of the loan, testified the $8,000 was turned over to the title company. See Docket no. 14 p. 11, pp. 10-11.
It is undisputed that the Castlemans did not fully read any of the loan documents at issue before they signed them. Nor did they have any of the loan documents reviewed by an attorney or accountant before signing. The Castlemans testified they would not have signed the loan documents if they had read them. They maintain they were made to understand they were receiving standard run-of-the-mill financing, such as they had received before from Wells Fargo, at a fixed rate with no prepayment penalty. They had no idea they were committing to complex derivative-based financing. Wells Fargo maintains it fully explained the financing to the Castlemans who should have read the loan documents and asked questions if they did not understand what they were signing.
This action was commenced in state court in July 2009. The Castlemans assert five causes of action including: breach of contract, unjust enrichment, fraud, negligent misrepresentation, and consumer fraud. See Docket No. 1-1. Wells Fargo removed the action to federal district court on August 7, 2009. See Docket No. 1. Trial is scheduled for October 12, 2010.
II. STANDARD OF REVIEW
Summary judgment is appropriate when the evidence, viewed in a light most favorable to the non-moving party, indicates that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. Davison v. City of Minneapolis, Minn., 490 F.3d 648, 654 (8th Cir. 2007); see Fed.R.Civ.P. 56(c). Summary judgment is not appropriate if there are factual disputes that may affect the outcome of the case under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is genuine if the evidence would allow a reasonable jury to return a verdict for the non-moving party. Id.
The Court must inquire whether the evidence presents a sufficient disagreement to require the submission of the case to a jury or whether the evidence is so one-sided that one party must prevail as a matter of law. Diesel Mach., Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 832 (8th Cir. 2005). The moving party bears the burden of demonstrating an absence of a genuine issue of material fact. Simpson v. Des Moines Water Works, 425 F.3d 538, 541 (8th Cir. 2005). The non-moving party "may not rely merely on allegations or denials in its own pleading; rather, its response must . . . set out specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e)(2). The court must consider the substantive standard of proof when ruling on a motion for summary judgment. Anderson, 477 U.S. at 252.
This action is based on diversity jurisdiction. Therefore, the Court will apply the substantive law of North Dakota. See Paracelsus Healthcare Corp. v. Philips Med. Sys., Nederland, B.V., 384 F.3d 492, 495 (8th Cir. 2004).
III. LEGAL DISCUSSION
A. BREACH OF CONTRACT
The first cause of action asserted by the Castlemans is for breach of contract. In order to establish a prima facie case for breach of contract the party asserting the breach must demonstrate: (1) the existence of a contract, (2) breach of the contract, and (3) damages which flow from the breach. Van Sickle v. Hallmark Assocs., Inc., 744 N.W.2d 532, 536 (N.D. 2008). The burden of proof is on the party asserting the breach. Id. When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone if possible. N.D.C.C. § 9-07-04. Construction of a written contract is a question of law. Garofalo v. Saint Joseph's Hosp., 615 N.W.2d 160, 162 (N.D. 2000). The language of a contract is to govern its interpretation if the language is clear and explicit and does not involve absurdity. N.D.C.C. § 9-07-02. Whether a party has breached a contract is finding of fact. Pfeifle v. Tanabe, 620 N.W.2d 167, 170 (N.D. 2000).
In this case the document upon which the claim for breach of contract turns is the Addendum to Promissory Note and, specifically, the clause which calls for "Payments Upon Prepayment or Early Termination." See Docket No. 13-14.
It appears from the submissions before the Court that a factual dispute exists as to how the "derivative fee" was calculated and whether the $99,000 fee paid by the Castlemans was the proper amount. The Addendum to Promissory Note requires the early termination fee to be an "amount reasonably determined by Lender to be the cost to offset the Collar if any, as determined by the collar market." See Docket No. 13-14. Brian Knapp testified he used the swap rate market to determine the derivative fee. See Docket No. 11-9 pp. 5-6. There is no mention of a "derivative fee" in the loan documents nor any indication as to how such a fee is calculated at closing. From the record before the Court it is unclear whether the "swap market" and the "collar market" are the same thing. Neither term is defined in any of the loan documents. More important, the term "derivative fee" is neither explained nor defined anywhere in the loan documents. A fact question exists which precludes summary judgment. In addition, if one compares the September 5, 2008 payoff statement with the email exchange between Brian Knapp and Howard Palmer of Wells Fargo there is a clear discrepancy in the amount of the "derivative fee" and whether the proper amount was $99,000 or $91,000. See Docket Nos. 13-17 and 13-18. Suffice it to say that the term "derivative fee" is neither defined nor explained in the loan documents — nor can any witness provide an understandable explanation as to what the term means or how such a "derivative fee" is calculated.
B. UNJUST ENRICHMENT
The Castlemans have stipulated to dismissal of their claim for unjust enrichment and thus the claim will be dismissed.
C. FRAUD
The Castlemans allege Wells Fargo fraudulently induced them to sign the loan documents by making false statements about the nature of the loan and suppressing the fact that the loan was a complex derivative-based product and not run-of-the-mill financing.
An individual "who has been fraudulently induced to enter into a contract may either rescind the contract, or retain the benefits of the contract and obtain damages for injuries from the fraud." West v. Carlson, 454 N.W.2d 307, 309 (N.D. 1990) (citingLanz v. Naddy, 82 N.W.2d 809 (N.D. 1957). In this case the Castlemans have sued for damages. Fraud is defined by statute which provides as follows:
Actual fraud within the meaning of this title consists in any of the following acts committed by a party to the contract, or with his connivance, with intent to deceive another party thereto or to induce him to enter into the contract:
1. The suggestion as a fact of that which is not true by one who does not believe it to be true;
2. The positive assertion, in a manner not warranted by the information of the person making it, of that which is not true though he believes it to be true;
3. The suppression of that which is true by one having knowledge or belief of the fact;
4. A promise made without any intention of performing it; or
5. Any other act fitted to deceive.
N.D.C.C. § 9-03-08. Under N.D.C.C. §§ 9-03-08(1) and (3), actual fraud requires either an intent to deceive a party to the contract, or an intent to induce that party to enter into the contract. West, 454 N.W.2d at 310. "When a party responds to an inquiry about the subject matter of a contract, the response must disclose full, accurate, and truthful information." Id. Actual fraud may not be presumed but it may be inferred from the facts and attendant circumstances of the transaction. Id. Actual fraud is a question of fact. Id.; N.D.C.C. § 9-03-10. Fraud must be proven by clear and convincing evidence. Kary v. Prudential Ins. Co., 541 N.W.2d 703, 705 (N.D. 1996).
Actions for fraud are not usually suited for disposition by summary judgment because they involve state of mind determinations. Id. at 706. However, if a plaintiff fails to support his opposition to a summary judgment motion with sufficient facts to show that there is a genuine issue for trial, summary judgment is appropriate. Id. Thus, in order to succeed with their claim of fraud, the Castlemans must set forth evidence that Wells Fargo made affirmative false statements or suppressed material facts with the intent to deceive the Castlemans or induce them into signing the loan documents at issue.
The Court has carefully reviewed the depositions of Vance Castleman, Arlene Castleman, Todd Gerber, and Jacqueline Duke. It appears to the Court that there was, and still is, a high level of miscommunication, uncertainty, and confusion among the parties as to what a "derivative fee" is and how such a fee is calculated at closing. For example, Vance Castleman testified that he always emphasized that he did not want a loan with prepayment penalties and he understood from his conversations with Todd Gerber of Wells Fargo that he was receiving run-of-the-mill fixed rate financing. See Docket No. 11-1, pp. 7 and 11. According to the Castlemans, had they read the loan documents, and been able to understand the terms as interpreted by Wells Fargo, they would not have signed them. See Docket Nos. 11-1, p. 13 and 11-4, p. 8. Jacqueline Duke testified that she told the Castlemans the loan involved a substantial early termination penalty and she fully explained all the risks involved. See Document No. 14-1, pp. 7 and 11. Todd Gerber testified that he was aware that on some previous transactions Wells Fargo financed for the Castlemans, they had paid off the loan in three to five years, and he knew the Castlemans were very concerned about prepayment penalties.See Docket No. 11-8, pp. 5-6. Gerber also testified that he explained to the Castlemans what a derivative loan product was and that it potentially involved a prepayment fee. See Docket No. 11-8, p. 7. The Castlemans testified they have no recollection of Gerber or Duke saying anything to them about a prepayment penalty. See Docket Nos. 11-1, p. 7 and 11-4, p. 6. Vance Castleman's emails to Palmer and Hodnefield support the Castleman's position that they were made to understand the loan was assumable and had no prepayment penalty. See Docket No. 11-3, pp. 21-23.
There is no dispute that many conversations took place between Vance Castleman and Gerber and Duke and the Castlemans based their understanding of the loan terms on these discussions. Nor is there any dispute that the Castlemans did not read the loan documents. Once Wells Fargo undertook to explain the loan to the Castlemans, it had an obligation to provide accurate information.West, 454 N.W.2d at 310. Vance Castleman testified he never would have entered into the loan in question if he had read the contract and clearly understood the terms as now interpreted by Wells Fargo. There can be no doubt the Castlemans did not receive the type of financing which they were seeking.
There is a clear factual dispute over what Wells Fargo said, or did, or did not say, that lead the Castlemans to believe they were receiving run-of-the-mill fixed rate financing with no prepayment penalty when in reality they were entering into complex derivative-based financing with significant prepayment penalties. Did Wells Fargo fully explain the terms of this complex financing to the Castlemans as it claims to have done? If Wells Fargo did not fully explain the terms of the loan documents, especially the prepayment penalty language, was that failure an intentional suppression of fact? Did Wells Fargo intentionally state or suggest to the Castlemans there would be no prepayment penalty or do the Castlemans have a selective or faulty memory of such discussions.
Other fact questions persist as well:
• Why did Wells Fargo sell a complicated derivative loan package to the Castlemans when what they were clearly looking for was run-of-the-mill financing similar to what they had received in the past from Wells Fargo and the type outlined in the October 15, 2003 proposal letter?
• Did Wells Fargo explain to the Castlemans that the loan involved the possibility of a significant prepayment penalty or a "derivative fee," the calculation of which was complicated, vague, and uncertain at best, as Wells Fargo claims to have done, or did Wells Fargo suppress this information as alleged by the Castlemans? The Castlemans both testified they would not have signed the Addendum to Promissory Note had they read it which calls into question the testimony of Gerber and Duke that they fully explained the nature of the loan to the Castlemans.
• Why do the options outlined in the October 15, 2003 proposal letter differ dramatically from the loan which was ultimately executed?
• Why did Wells Fargo sell a complex, derivative-based loan product to the Castlemans which included the possibility of a substantial prepayment penalty when they clearly understood that the Castlemans did not want a loan with prepayment penalties?
• The loan which was sold to the Castlemans seems to be ill-suited to their needs and business model which called for the property to be sold in three to five years. Gerber and Duke were aware of this and yet they allegedly steered the Castlemans into a complex, derivative-based loan which contained the risk of a substantial prepayment penalty if the loan was paid off prior to the full term.
The Court will let a jury address and resolve the multitude of genuine issues of material fact in dispute which preclude summary judgment. This is a complex transaction plagued with confusing terminology ("derivative fee") that neither the bank nor its customers seem to have understood. Further, neither party understood how this "derivative fee," seemingly masked as a prepayment penalty, would be calculated. The Court will allow the jury to sort through the maze.
D. NEGLIGENT MISREPRESENTATION
In North Dakota, a claim for relief based on negligent misrepresentation arises under statute, N.D.C.C. § 9-03-08(2), as opposed to the general law of negligence. See Bourgois v. Montana-Dakota Utils, Co., 466 N.W.2d 813, 818 (N.D. 1991) (recognizing statutory claim for negligent misrepresentation under North Dakota's fraud statute). Negligent misrepresentation, which is also known as negligent fraud, does not require an intent to deceive but rather requires only a statement based on insufficient information. Id. at 817.
The question for summary judgment purposes becomes whether the Castlemans have offered evidence, which raises a question of material fact, as to whether Wells Fargo induced them to sign the loan documents by making false statements about the nature of the loan and the possibility of a prepayment penalty which were unwarranted, even though Wells Fargo believed them to be true. Id. at 818. In other words, did Gerber and/or Duke fail to fully understand the loan themselves and negligently misinform the Castlemans as to the true nature of the loan and the possibility of a prepayment penalty? This is certainly possible given the complex nature of the derivative loan product in question. This is true of the prepayment penalty or "derivative fee" which is not capable of easy calculation and, depending on what is happening in certain markets, may not even apply. Gerber testified he had never received any training on derivative-based loans. See Docket No. 11-8, p. 4. However, Duke testified she had received training in derivative-based loans from Brian Knapp. See Docket No. 14-1, p. 3. The Castlemans testified they understood they were receiving run-of-the-mill financing rather than derivative-based financing. See Docket Nos. 11-1, p. 11 and 11-4, p. 7.
Given Gerber's lack of training and the Castlemans' understanding of the loan, a factual dispute exists as to how and why the Castlemans came to understand they were receiving run-of-the-mill financing. Wells Fargo had an obligation to provide accurate and understandable information when it discussed the specific terms of the loan with the Castlemans. West, 454 N.W.2d at 310. It will be for the jury to decide whether to believe the Castlemans' version of events or that of Wells Fargo. The Court will not engage in credibility determinations.Torgerson v. City of Rochester, 605 F.3d 584, 599 (8th Cir. 2010). If the jury believes the Castlemans it will be up to the jury to decide if Wells Fargo acted intentionally under N.D.C.C. §§ 9-03-08(1) or (3), or negligently under N.D.C.C. § 9-03-08(2).
E. CONSUMER FRAUD
The Castleman's fifth claim for relief was for violation of North Dakota's consumer fraud statute. See N.D.C.C. Ch. 51-15. Wells Fargo argued that loan transactions do not fall within the definition of "Merchandise" as set forth in N.D.C.C. § 51-15-01(3). The Castlemans did not respond to the argument. The Court deems this lack of response an admission that the argument is well taken. See D.N.D. Civ. L.R. 7.1(F).
IV. CONCLUSION
For the reasons set forth above, Wells Fargo's motion for summary judgment (Docket No. 10) is GRANTED IN PART and DENIED IN PART. The claims for unjust enrichment and consumer fraud are dismissed. Trial will proceed on the claims for breach of contract, fraud and negligent misrepresentation. There are genuine issues of material fact in dispute as to these claims which precludes summary judgment and warrants a jury trial.