CurRie, C. J.

The instant appeal and cross appeal present these questions:

(1) Whether this court should recognize causes of action grounded on promissory estoppel as exemplified by sec. 90 of Restatement, 1 Contracts ?

(2) Do the facts in this case make out a. cause of action for promissory estoppel ?

(3) Are the jury’s findings with respect to damages sustained by the evidence ?

*694 Recognition of a Cause of Action Grounded on Promissory Estoppel.

Sec. 90 of Restatement, 1 Contracts, provides (at p. 110) :

“A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.”

The Wisconsin Annotations to Restatement, Contracts, prepared under the direction of the late Professor William H. Page and issued in 1933, stated (at p. 53, sec. 90) :

“The Wisconsin cases do not seem to be in accord with this section of the Restatement. It is certain that no such proposition has ever been announced by the Wisconsin court and it is at least doubtful if it would be approved by the court.”

Since 1933, the closest approach this court has made to adopting the rule of the' Restatement occurred in the recent case of Lazarus v. American Motors Corp. (1963), 21 Wis. (2d) 76, 85, 123 N. W. (2d) 548, wherein the court stated:

“We recognize that upon different facts it would be possible for a seller of steel to have altered his position so as to effectuate the equitable considerations inherent in sec. 90 of the Restatement.”

While it was not necessary to the disposition of the Lazarus Case to adopt the promissory-estoppel rule of the Restatement, we are squarely faced in the instant case with that issue. Not only did the trial court frame the special verdict on the theory of sec. 90 of Restatement, 1 Contracts, but no other possible theory has been presented to or discovered by this court which would permit plaintiffs to recover. Of *695other remedies considered that of an action for fraud and deceit seemed to be the most comparable. An action at law for fraud, however, cannot be predicated on unfulfilled promises unless the promisor possessed the present intent not to perform. Suskey v. Davidoff (1958), 2 Wis. (2d) 503, 507, 87 N. W. (2d) 306, and cases cited. Here, there is no evidence that would support a finding that Lukowitz made any of the promises, upon which plaintiffs’ complaint is predicated, in bad faith with any present intent that they would not be fulfilled by Red Owl.

Many courts of other jurisdictions have seen fit over the years to adopt the principle of promissory estoppel, and the tendency in that direction continues.1 As Mr. Justice McFaddin, speaking in behalf of the Arkansas court, well stated, that the development of the law of promissory estoppel “is an attempt by the courts to keep remedies abreast of increased moral consciousness of honesty and fair representations in all business dealings.” Peoples National Bank of Little Rock v. Linebarger Construction Co. (1951), 219 Ark. 11, 17, 240 S. W. (2d) 12. For a further discussion of the doctrine of promissory estoppel, see 1A Corbin, Contracts, pp. 187 et seq., secs. 193-209; 3 Pomeroy’s Equity Jurisprudence (5th ed.), pp. 211 et seq., sec. 808b; 1 Williston, Contracts (Jaeger’s 3d ed.), pp. 607 et seq., *696sec. 140; Bayer, Promissory Estoppel:. Requirements and Limitations of the Doctrine, 98 University of Pennsylvania Law Review (1950), 459; Seavey, Reliance Upon Gratuitous Promises or Other Conduct, 64 Harvard Law Review (1951), 913 ;Annos. 115 A. L. R. 152, and48 A. L. R. (2d) 1069.

The Restatement avoids use of the term “promissory estoppel,” and there has been criticism of it as an inaccurate term. See 1A Corbin, Contracts, p. 232 et seq., sec. 204. On the other hand, Williston advocated the use of this term or something equivalent. 1 Williston, Contracts (1st ed.), p. 308, sec. 139. Use of the word “estoppel” to describe a doctrine upon which a party to a lawsuit may obtain affirmative relief offends the traditional concept that estoppel merely serves as a shield and cannot serve as a sword to create a cause of action. See Utschig v. McClone (1962), 16 Wis. (2d) 506, 509, 114 N. W. (2d) 854. “Attractive nuisance” is also a much-criticized term. See concurring opinion, Flamingo v. Waukesha (1952), 262 Wis. 219, 227, 55 N. W. (2d) 24. However, the latter term is still in almost universal use by the courts because of the. lack of a better substitute. The same is also true of the wide use of the term “promissory estoppel.” We have employed its use in, this opinion not only because of its extensive use by other courts but also since a more-accurate equivalent has not been devised.

Because we deem the doctrine of promissory estoppel, as stated in sec. 90 of Restatement,, 1 Contracts, is one which supplies a needed tool which courts may employ in a proper case to prevent injustice, we endorse and adopt it.

Applicability of Doctrine to Facts of this Case.

The record here discloses a number of promises and assurances given to Hoffman by Lukowitz in behalf of Red *697Owl upon which plaintiffs relied and acted upon to their detriment.

Foremost were the promises that for the sum of $18,00.0 Red Owl would establish Hoffman in a store. After Hoffman had sold his grocery store and paid the $1,000 on the Chilton lot, the $18,000 figure was changed to $24,100. Then in November, 1961, Hoffman was assured that if the $24,100 figure were increased by $2,000 the deal would go through. Hoffman was induced to sell his grocery store fixtures and inventory in June, 1961, on the promise that he would be in his new store by fall. In November, plaintiffs sold their bakery building on the urging of defendants and on the assurance that this was the last step necessary to have the deal with Red Owl go through.

We determine that there was ample evidence to sustain the answers of the jury to the questions of the verdict with respect to the promissory representations made by Red Owl, Hoffman’s reliance thereon in the exercise of ordinary care, and his fulfilment of the conditions required of him by the terms of the negotiations had with Red Owl.

There remains for consideration the question of law raised by defendants that agreement was never reached on essential factors necessary to establish a contract between Hoffman and Red Owl. Among these were the size, cost, design, and layout of the store building; and the terms of the lease with respect to rent, maintenance, renewal, and purchase options. This poses the question of whether the promise necessary to sustain a cause of action for promissory estoppel must embrace all essential details of a proposed transaction between promisor and promisee so as to be the equivalent of an offer that would result in a binding contract between the parties if the promisee were to accept the same.

Originally the doctrine of promissory estoppel was invoked as a substitute for consideration rendering a gratuitous *698promise enforceable as a contract. See Williston, Contracts (1st ed.), p. 307, sec. 139. In other words, the acts of reliance by the promisee to his detriment provided a substitute for consideration. If promissory estoppel were to be limited to only those situations where the promise giving rise to the cause of action must be so definite with respect to all details that a contract would result were the promise supported by consideration, then the defendants’ instant promises to Hoffman would not meet this test. However, sec. 90 of Restatement, 1 Contracts, does not impose the requirement that the promise giving rise to the cause of action must be so comprehensive in scope as to meet the requirements of an offer that would ripen into a contract if accepted by the promisee. Rather the conditions imposed are:

(1) Was the promise one which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee ?

(2) Did the promise induce such action or forbearance?

(3) Can injustice be avoided only by enforcement of the promise ? 2

We deem it would be a mistake to regard an action grounded on promissory estoppel as the equivalent of a breach-of-contract action. As Dean Boyer points out, it is desirable that fluidity in the application of the concept be maintained. 98 University of Pennsylvania Law Review (1950), 459, at page 497. While the first two of the above-listed three requirements of promissory estoppel present issues of fact which ordinarily will be resolved by a jury, the third requirement, that the remedy can only be invoked where necessary to avoid injustice, is one that involves a policy decision by the court. Such a policy decision necessarily embraces an element of discretion.

*699We conclude that injustice would result here if plaintiffs were not granted some relief because of the failure of defendants to keep their promises which induced plaintiffs to act to their detriment.

Damages.

Defendants attack all the items of damages awarded by the jury.

The bakery building at Wautoma was sold at defendants’ instigation in order that Hoffman might have the net proceeds available as part of the cash capital he was to invest in the Chilton store venture. The evidence clearly establishes that it was sold at a loss of $2,000. Defendants contend that half of this loss was sustained by Mrs. Hoffman because title stood in joint tenancy. They point out that no dealings took place between her and defendants as all negotiations were had with her husband. Ordinarily only the promisee and not third persons are entitled to enforce the remedy of promissory estoppel against the promisor. However, if the promisor actually foresees, or has reason to foresee, action by a third person in reliance on the promise, it may be quite unjust to refuse to perform the promise. 1A Corbin, Contracts, p. 220, sec. 200. Here not only did defendants foresee that it would be necessary for Mrs. Hoffman to sell'her joint interest in the bakery building, but defendants actually requested that this be done. We approve the jury’s award of $2,000 damages for the loss incurred by both plaintiffs in this sale.

Defendants attack on two grounds the $1,000 awarded because of Hoffman’s payment of that amount on the purchase price of the Chilton lot. The first is that this $1,000 had already been lost at the time the final negotiations with Red Owl fell through in January, 1962, because the remaining $5,000 of purchase price had been due on October 15, 1961. The record does not disclose that the lot owner had *700foreclosed Hoffman’s interest in the lot for failure to pay this $5,000. The $1,000 was not paid for the option, but had been paid as part of the purchase price at the time Hoffman elected to exercise the option. This gave him an equity in the lot which could not be legally foreclosed without affording Hoffman an opportunity to pay the balance. The second ground of attack is that the lot may have had a fair market value of $6,000, and Hoffman should have paid the remaining $5,000 of purchase price. We determine that it would be unreasonable to require Hoffman to have invested an additional $5,000 in order to protect the $1,000 he had paid. Therefore, we find no merit to defendants’ attack upon this item of damages.

We also determine it was reasonable for Hoffman to have paid $125 for one month’s rent of a home in Chilton after defendants assured him everything would be set when plaintiff sold the bakery building. This was a proper item of damage.

Plaintiffs never moved to Chilton because defendants suggested that Hoffman get some experience by working in a Red Owl store in the Fox River Valley. Plaintiffs, therefore, moved to Neenah instead of Chilton. After moving, Hoffman worked at night in an Appleton bakery but held himself available for work in a Red Owl store. The $140 moving expense would not have been incurred if plaintiffs had not sold their bakery building in Wautoma in reliance upon defendants’ promises. We consider the $140 moving expense to be a proper item of damage.

We turn now to the damage item with respect to which the,trial court granted a new trial, i.e., that arising from the sale of the Wautoma grocery-store fixtures and inventory for which the jury awarded $16,735. The trial court ruled that Hoffman could not recover for any loss of future profits for the summer months following the sale on June 6, 1961, but that damages would be limited to the difference between *701the sales price received and the fair market value of the assets sold, giving consideration to any goodwill attaching thereto by reason of the transfer of a going business. There was no direct evidence presented as to what this fair market value was on June 6, 1961. The evidence did disclose that Hoffman paid $9,000 for the inventory, added $1,500 to it and sold it for $10,000 or a loss of $500. His 1961 federal income-tax return showed that the grocery equipment had been purchased for $7,000 and sold for $7,955.96. Plaintiffs introduced evidence of the buyer that during the first eleven weeks of operation of the grocery store his gross sales were $44,000 and his profit was $6,000 or roughly 15 percent. On cross-examination he admitted that this was gross and not net profit. Plaintiffs contend that in a breach-of-contract action damages may include loss of profits. However, "this is not a breach-of-contract action.

The only relevancy of evidence relating to profits would be with respect to proving the element of goodwill in establishing the fair market value of the grocery inventory and fixtures sold. Therefore, evidence of profits would be admissible to afford a foundation for expert opinion as to fair market value.

Where damages are awarded in promissory estoppel instead of specifically enforcing the promisor’s promise, they should be only such as in the opinion of the court are necessary to prevent injustice. Mechanical or rule-of-thumb approaches to the damage problem should be avoided. In discussing remedies to be applied by courts in promissory estoppel we quote the following views of writers on the subject:

“Enforcement of a promise does not necessarily mean Specific Performance. It does not necessarily mean Damages for breach. Moreover the amount allowed as Damages may be determined by the plaintiff’s ¡expenditures or change of position in reliance as well as by the value to him of the *702promised performance. Restitution is also an ‘enforcing’ remedy, although it is often said to be based upon some kind of a rescission. In determining what justice requires, the court must remember all of its powers, derived from equity, law merchant, and other sources, as well as the common law. Its decree should be molded accordingly.” 1A Corbin, Contracts, p. 221, sec. 200.

“The wrong is not primarily in depriving the plaintiff of the promised reward but in causing the plaintiff to change position to his detriment. It would follow that the damages should not exceed the loss caused by the change of position, which would never be more in amount, but might be less, than the promised reward.” Seavey, Reliance on Gratuitous Promises or Other Conduct, 64 Harvard Law Review (1951), 913, 926.

“There likewise seems to be no positive legal requirement, and certainly no legal policy, which dictates the allowance of contract damages in every case where the defendant’s duty is consensual.” Shattuck, Gratuitous Promises — A New Writ?, 35 Michigan Law Review (1936), 908, 912.3

At the time Hoffman bought the equipment and inventory of the small grocery store at Wautoma he did so in order to gain experience in the grocery-store business. At that time discussion had already been had with Red Owl representatives that Wautoma might be too small for a Red Owl operation and that a larger city might be more desirable. Thus Hoffman made this purchase more or less as a temporary experiment. Justice does not require that the damages awarded him, because of selling these assets at the behest of defendants, should exceed any actual loss sustained measured by the difference between the sales price and the fair market value.

*703Since the evidence does not sustain the large award of damages arising from the sale of the Wautoma grocery business, the trial court properly ordered a new trial on this issue.

By the Court. — Order affirmed. Because of the cross appeal, plaintiffs shall be limited to taxing but two thirds of their costs.

MEMORANDUM AND ORDER

YOUNG, District Judge.

I. INTRODUCTION

Frank and Deana Dixon (collectively “the Dixons”) bring this cause of action against Wells Fargo Bank, N.A. (“Wells Fargo”), seeking (1) an injunction prohibiting Wells Fargo from foreclosing on their home; (2) specific performance of an oral agreement to enter into a loan modification; and (3) damages. Wells Fargo, having removed the action from state court, now moves for dismissal of the Dixons’ complaint under Fed.R.Civ.P. 12(b)(6), arguing that the allegations are insufficient to invoke the doctrine of promissory estoppel and that, to the extent the Dixons have stated a state-law claim, it is preempted by the Home Owners’ Loan Act (“HOLA”), 12 U.S.C. §§ 1461-1700, and its implementing regulations, 12 C.F.R. §§ 500-99.

A. Procedural History

On January 6, 2011, the Dixons initiated this civil action in the Massachusetts Superior Court sitting in and for the County of Plymouth, Civil Docket No. PLCV201100015, by filing a “Verified Complaint for Injunctive Relief, Specific Performance and Damages.” Compl., Ex. A, ECF No. 1-1; Summons & Order Notice, Ex. D, ECF No. 1-M. They also filed an ex parte motion for a temporary restraining order. TRO, Ex. B, ECF No. 1-2. After an initial continuance, the hearing on that motion was held on February 14, 2011, and the Superior Court issued a preliminary injunction, enjoining Wells Fargo from prosecuting the foreclosure action it had filed against the Dixons until further order of the court. Sup. Ct. Civ. Dkt. 3-4, Ex. C, ECF No. 1-3; Order Prelim. Inj., ECF No. 4. At the present time, the preliminary injunction remains in effect. Mem. Opp’n Pis.’ Mot. Remand 1, ECF No. 13.

On March 4, 2011, Wells Fargo removed the action to the United States District Court for the District of Massachusetts. Notice Removal, ECF No. 1. Wells Fargo filed its motion to dismiss the Dixons’ complaint on April 11, 2011. Def.’s Mot. Dismiss, ECF No. 5; Mem. Supp. Def.’s Mot. Dismiss (“Def.’s Mem. Supp.”), ECF No. 7. The Dixons opposed Wells Fargo’s motion and moved to remand the case. Mem. Opp’n Def.’s Mot. Dismiss (“Pis.’ Mem. Opp’n”), ECF No. 12; Pis.’ Mot. Remand, ECF No. 9; Mem. Supp. Pis.’ Mot. Remand, ECF No. 10.

After a hearing on May 9, 2011, this Court denied the Dixons’ motion to remand and granted Wells Fargo’s motion to dismiss the Dixons’ contract claim as insufficiently pleaded. The Court took under advisement the two remaining issues: (1) *339the sufficiency of the allegations in the complaint with respect to the doctrine of promissory estoppel; and (2) HOLA preemption. With leave of the Court, both parties have since filed supplemental briefing. Supplemental Mem. Supp. Def.’s Mot. Dismiss (“Def.’s Supplemental Mem. Supp.”), ECF No. 16; Supplemental Mem. Opp’n Def.’s Mot. Dismiss (“Pis.’ Supplemental Mem. Opp’n”), ECF No. 18.

B. Facts Alleged

The Dixons reside at their home in Scituate, Plymouth County, Massachusetts. Compl. ¶2. Wells Fargo is a corporation doing business in the Commonwealth of Massachusetts. Id. ¶ 3. Wells Fargo alleges that it is the holder of a mortgage on the Dixons’ home. Id. ¶ 6.

On or about June 8, 2009, the Dixons orally agreed with Wells Fargo to take the steps necessary to enter into a mortgage loan modification. Id. ¶ 7. As part of this agreement, Wells Fargo instructed the Dixons to stop making payments on their loan. Id. It was contemplated that the unpaid payments would be added to the note as modified. Id. In addition, Wells Fargo requested certain financial information, which the Dixons promptly supplied. Id.

Notwithstanding the Dixons’ diligent efforts and reliance on Wells Fargo’s promise, Wells Fargo has failed, and effectively refused, to abide by the oral agreement to modify the existing mortgage loan. Id. ¶ 8.

On or about December 8, 2010, the Dixons received notice from the Massachusetts Land Court that Wells Fargo was proceeding with a foreclosure on their home. Id. ¶ 9. The return date on the order of notice in the Land Court was January 10, 2011, and so the Dixons sought a temporary restraining order in the Superior Court to prevent the loss of their home. See Procedural History, supra.

The Dixons state that, on information and belief, the fair market value of their home is in excess of the mortgage loan balance and any arrearage. Compl. ¶ 10.

II. ANALYSIS

The Dixons seek to enforce Wells Fargo’s alleged promise to engage in negotiating a loan modification. See Pis.’ Supplemental Mem. Opp’n 1-2. Arguing that the bank’s initiation of foreclosure proceedings without warning shows its promise to consider their eligibility for a modification was insincere, the Dixons ask not only that the foreclosure be halted but also that Wells Fargo be returned to its place at the bargaining table. See Id.; see also Pls.’ Mem. Opp’n 7-8, 11-12. Wells Fargo contends that (1) any promise it made to consider the Dixons for a loan modification was not sufficiently definite as to be binding, see Def.’s Supplemental Mem. Supp. 1; (2) the Dixons’ reliance on its promise was neither reasonable nor detrimental, see Def.’s Mem. Supp. at 17-19; and (3) in any event, the claim for promissory estoppel is preempted by federal law, see Id. at 8-14.

A. Legal Standard

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In addition to accepting all factual allegations in the complaint as true, the Court must draw all reasonable inferences in the plaintiffs favor. Langadinos v. American Airlines, Inc., 199 F.3d 68, 69 (1st Cir.2000). If the facts in the complaint are sufficient to state a cause of action, a motion to dismiss the complaint must be denied. See *340 Nollet v. Justices of Trial Court of Mass., 83 F.Supp.2d 204, 208 (D.Mass.2000) (Harrington, J.).

Although the Court must accept as true all of the factual allegations contained in the complaint, that doctrine is not applicable to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Threadbare recitals of the legal elements, supported by mere conclusory statements, do not suffice to state a cause of action. Id. Accordingly, a complaint does not state a claim for relief where the well-pleaded facts fail to warrant an inference of anything more than the mere possibility of misconduct. Id. at 1950.

B. Promissory Estoppel

The gravamen of the Dixons’ complaint is that Wells Fargo promised to engage in negotiations to modify their loan, provided that they took certain “steps necessary to enter into a mortgage modification.” Compl. ¶ 7. On the basis of Wells Fargo’s representation, the Dixons stopped making payments on their loan and -submitted the requested financial information — only to learn subsequently that the bank had initiated foreclosure proceedings against them. They contend that Wells Fargo ought have anticipated their compliance with the terms of its promise to consider them for a loan modification. Not only was it reasonable that they would rely on the promise, but also their reliance left them considerably worse off, for by entering into default they became vulnerable to foreclosure.

The question whether these allegations are sufficient to state a claim for promissory estoppel requires a close look at the doctrine’s evolution in the law of Massachusetts. In Loranger Const. Corp. v. E.F. Hauserman Co., 376 Mass. 757, 384 N.E.2d 176 (1978), the Supreme Judicial Court recognized the enforceability of a promise on the basis of detrimental rebanee, but declined to “use the expression ‘promissory estoppel,’ since it tends to confusion rather than clarity.” Id. at 760-61, 384 N.E.2d 176. The court reasoned that “[w]hen a promise is enforceable in whole or in part by virtue of reliance, it is a ‘contract,’ and it is enforceable pursuant to a ‘traditional contract theory’ antedating the modern doctrine of consideration.” Id. at 761, 384 N.E.2d 176. Since Loranger, the court has adhered to its view that “an action based on reliance is equivalent to a contract action, and the party bringing such an action must prove all the necessary elements of a contract other than consideration.” Rhode Island Hosp. Trust Nat’l Bank v. Varadian, 419 Mass. 841, 850, 647 N.E.2d 1174 (1995).

“An essential element in the pleading and proof of a contract claim is, of course, the ‘promise’ sought to be enforced.” Kiely v. Raytheon Co., 914 F.Supp. 708, 712 (D.Mass.1996) (O’Toole, J.). Thus, even where detrimental reliance acts as a substitute for consideration, the promise on which a claim for promissory estoppel is based must be interchangeable with an offer “in the sense of ‘commitment.’ ” Cataldo Ambulance Serv., Inc. v. City of Chelsea, 426 Mass. 383, 386 n. 6, 688 N.E.2d 959 (1998). The promise must demonstrate “an intention to act or refrain from acting in a specified way, so as to justify a promisee in understanding that a commitment has been made.” Varadian, 419 Mass. at 849-50, 647 N.E.2d 1174 (quoting Restatement (Second) of Contracts § 2 (1981)). That the representation is of future, rather than present, intention will not preclude recovery, so long as the promisor’s expectation to be legally bound is clear. See Sullivan v. Chief Justice for Admin. & Mgt. of Trial Court, 448 Mass. 15, 28 & n. 9, 858 N.E.2d 699 (2006) *341(quoting Boylston Dev. Group, Inc. v. 22 Boylston St. Corp., 412 Mass. 531, 542 n. 17, 591 N.E.2d 157 (1992)).

In addition to demonstrating a firm commitment, the putative promise, like any offer, must be sufficiently “definite and certain in its terms” to be enforceable. Moore v. Lar-Z-Boy, Inc., 639 F.Supp.2d 136, 142 (D.Mass.2009) (Stearns, J.) (quoting Kiely, 914 F.Supp. at 712). “[I]f an essential element is reserved for the future agreement of both parties, as a general rule, the promise can give rise to no legal obligation until such future agreement.” 1 Richard A. Lord, Williston on Contracts § 4:29 (4th ed. 1990); see Lucey v. Hero Int’l Corp., 361 Mass. 569, 574-75, 281 N.E.2d 266 (1972). Under well-settled Massachusetts law, “an agreement to enter into a contract which leaves the terms of that contract for future negotiation is too indefinite to be enforced.” Caggiano v. Marchegiano, 327 Mass. 574, 580, 99 N.E.2d 861 (1951); see Sax v. DiPrete, 639 F.Supp.2d 165, 171 (D.Mass.2009) (Stearns, J.); Moore, 639 F.Supp.2d at 142; In re Harvey Probber, Inc., 50 B.R. 292, 296-97 (Bankr.Mass. 1985); Lafayette Place Assocs. v. Boston Redevelopment Auth., 427 Mass. 509, 517, 694 N.E.2d 820 (1998); Bell v. B.F. Goodrich Co., 359 Mass. 763, 763, 270 N.E.2d 926 (1971); Air Tech. Corp. v. General Elec. Co., 347 Mass. 613, 626, 199 N.E.2d 538 (1964); Rosenfield v. United States Trust Co., 290 Mass. 210, 217, 195 N.E. 323 (1935); Restatement (Second) of Contracts § 33, comment (c) (“The more terms the parties leave open, the less likely it is that they have intended to conclude a binding agreement.”).

The longstanding reluctance of courts to enforce open-ended “agreements to agree” reflects a belief that, unless a “fail-back standard” exists to supply the missing terms, there is no way to know what ultimate agreement, if any, would have resulted. E. Allan Farnsworth, Precontractual Liability and Preliminary Agreements: Fair Dealing and Failed Negotiations, 87 Colum. L.Rev. 217, 255-56 (1987). It is the vague and indefinite nature of that potential final agreement-not the preliminary agreement to agree — that troubles courts. See Armstrong v. Rohm & Haas Co., Inc., 349 F.Supp.2d 71, 78 (D.Mass. 2004) (Saylor, J.) (holding that an agreement must be sufficiently definite to enable courts to give it an exact meaning). Judges are justifiably unwilling to endorse one party’s aspirational view of the terms of an unrealized agreement. See Farnsworth, supra at 259. Just as “[i]t is no appropriate part of judicial business to rewrite contracts freely entered into,” RCI Northeast Servs. Div. v. Boston Edison Co., 822 F.2d 199, 205 (1st Cir.1987), courts must not force parties into contracts into which they have not entered freely, Armstrong, 349 F.Supp.2d at 80 (holding a promise unenforceable where the court could not “supply the missing terms without ‘writing a contract for the parties which they themselves did not make’ ” (quoting Held v. Zamparelli, 13 Mass.App.Ct. 957, 958, 431 N.E.2d 961 (1982))).

Moreover, parties ought be allowed to step away unscathed if they are unable to reach a deal. Cf. R.W. Int’l Corp. v. Welch Food, Inc., 13 F.3d 478, 484-85 (1st Cir.1994). To impose rights and duties at “the stage of ‘imperfect negotiation,’ ” Lafayette Place Assocs., 427 Mass. at 517, 694 N.E.2d 820, would be to interfere with the liberty to contract — or not to contract. Thus, the concern is that if a court were to order specific performance of an agreement to agree, where the material terms of the final agreement were left open by the parties, not only would there be “little, if anything, to enforce,” Lambert v. Fleet Nat’l Bank, 449 Mass. 119, 123, 865 *342N.E.2d 1091 (2007), but also future negotiations would be chilled. Cf. American Broad. Cos., Inc. v. Wolf, 52 N.Y.2d 394, 438 N.Y.S.2d 482, 420 N.E.2d 363, 368-69 (1981) (denying request for specific performance of general contract negotiation clause as inhibitive of free competition).

Wells Fargo would have this Court end its inquiry here. The complaint plainly alleges that the parties had an “agreement to enter into a loan modification agreement,” but as matter of law “[a]n agreement to reach an agreement is a contradiction in terms and imposes no obligations on the parties thereto.” Rosenfield, 290 Mass. at 217, 195 N.E. 323. As such, the complaint would appear to fail to state a claim.

During the course of opposing Wells Fargo’s motion to dismiss, however, the Dixons have made clear that they do not seek specific performance of a promised loan modification. See Pis.’ Supplemental Mem. Opp’n 1-2. They admit that there was no guarantee of a modification by Wells Fargo, only a verbal commitment to determine their eligibility for a modification if they followed the bank’s prescribed steps. Thus, the Dixons’ request that Wells Fargo be held to its promise to consider them for a loan modification is not a covert attempt to bind the bank to a final agreement it had not contemplated. There is no risk that this Court, were it to uphold the promissory estoppel claim, would be “trapping” Wells Fargo into a vague, indefinite, and unintended loan modification masquerading as an agreement to agree. Teachers Ins. & Annuity Ass’n of Am. v. Tribune Co., 670 F.Supp. 491, 497 (S.D.N.Y.1987).

Furthermore, because the parties had not yet begun to negotiate the terms of a modification, the Court questions whether Wells Fargo’s promise ought even be characterized as a preliminary agreement to agree. Instead, it more closely resembles an “agreement to negotiate.” See Farnsworth, supra at 263-69; cf. Aceves v. U.S. Bank, N.A., 192 Cal.App.4th 218, 120 Cal.Rptr.3d 507, 514 (2011) (“[T]he question here is simply whether U.S. Bank made and kept a promise to negotiate with Aceves, not whether ... the bank promised to make a loan or, more precisely, to modify a loan.”).

To be sure, Massachusetts courts have tended to treat agreements to negotiate as variants of open-ended agreements to agree. The view that “[a]n agreement to negotiate does not create a binding contract,” Sax, 639 F.Supp.2d at 171, again reflects a concern that a promise of further negotiations is too indefinite, too undefined in scope, to be enforceable. See Bell, 359 Mass. at 763, 270 N.E.2d 926 (finding an agreement to negotiate “for as long as the parties agreed” to be “void for vagueness”). This is particularly true where the parties have not specified the terms on which they will continue negotiating. See Farnsworth, supra at 264. Conventional wisdom holds that courts ought not “strain[ ] to find an agreement to negotiate in the absence of a clear indication of assent” by the parties to a governing standard of conduct, e.g., “good faith” or “best efforts,” Id. at 266-67, because “there is no meaningful content in a general duty to negotiate, standing alone,” Steven J. Burton & Eric G. Anderson, Contractual Good Faith § 8.4.2, at 361 (1995). See Pinnacle Books, Inc. v. Harlequin Enters. Ltd., 519 F.Supp. 118, 122 (S.D.N.Y.1981). As with open-ended agreements to agree, judicial enforcement of vague agreements to negotiate would risk imposing on parties contractual obligations they had not taken on themselves.

In this case, Wells Fargo and the Dixons had not yet contemplated the terms of a loan modification, but they had *343contemplated negotiations. Their failure to elaborate on the boundaries of that duty to negotiate, however, would seem to militate against enforcement of it. Yet, Wells Fargo made a specific promise to consider the Dixons’ eligibility for a loan modification if they defaulted on their payments and submitted certain financial information. See Burton & Andersen, supra § 8.2.2, at 332-33 (recognizing that, while there is no general duty to negotiate in good faith, public policy favors imposing noncontractual liability “when one person wrongfully harms another” by making a promise intended to induce reliance); Lucian Arye Bebchuk & Omri Ben-Shahar, Precontractual Reliance, 30 J. Legal Stud. 423, 424 (2001) (“A party may be liable for the other party’s reliance costs on three possible grounds: if it induced this reliance through misrepresentation, if it benefited from the reliance, or if it made a specific promise during negotiations.”); Farnsworth, supra at 236 (referring to the “specific promises that one party makes to another in order to interest the other party in the negotiations” as a “common basis for precontractual liability”). Importantly, it was not a promise made in exchange for a bargained-for legal detriment, as there was no bargain between the parties; rather, the legal detriment that the Dixons claim to have suffered was a direct consequence of their reliance on Wells Fargo’s promise. Joseph Perillo, Calamari & Perillo on Contracts § 6.1, at 218 (6th ed. 2009). Under the theory of promissory estoppel, “[a] negotiating party may not with impunity break a promise made during negotiations if the other party has relied on it.” Farnsworth, supra at 236.

Promissory estoppel has developed into “an attempt by the courts to keep remedies abreast of increased moral consciousness of honesty and fair representations in all business dealings.” Peoples Nat’l Bank of Little Rock v. Linebarger Constr. Co., 219 Ark. 11, 240 S.W.2d 12, 16 (1951). While it began as “a substitute for (or the equivalent of) consideration” in the context of an otherwise binding contract, Perillo, supra § 6.1, at 218, “promissory estoppel has come to be a doctrine employed to rescue failing contracts where the cause of the failure is not related to consideration,” Id. § 6.3, at 229. It now “provides a remedy for many promises or agreements that fail the test of enforceability under many traditional contract doctrines,” Id. § 6.1, at 218, but whose enforcement is “necessary to avoid injustice,” Restatement (Second) of Contracts § 90, comment (b).

Admittedly, the courts of Massachusetts have yet to formally embrace promissory estoppel as more than a consideration substitute. See, e.g., Varadian, 419 Mass. at 850, 647 N.E.2d 1174. Nonetheless, without equivocation, they have adopted section 90 of the Restatement (Second) of Contracts, which reads, “A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” See Chedd-Angier Prod. Co. v. Omni Publ’ns Int'l, Ltd., 756 F.2d 930, 937 (1st Cir.1985); Loranger Constr. Corp., 376 Mass, at 760-61, 384 N.E.2d 176; McAndrew v. School Comm., 20 Mass.App. Ct. 356, 363, 480 N.E.2d 327 (1985); see also Anzalone v. Administrative Office of Trial Court, 457 Mass. 647, 661, 932 N.E.2d 774 (2010) (using the term “promissory estoppel” and defining estoppel similarly to the Restatement); Sullivan, 448 Mass. at 27-28, 858 N.E.2d 699 (same). Nowhere in the comments to section 90 nor in section 2 of the Restatement, which defines the word “promise,” is there an explicit “requirement that the promise giving rise to the cause of action must be so *344comprehensive in scope as to meet the requirements of an offer that would ripen into a contract if accepted by the promisee.” Hoffman v. Red Owl Stores, Inc., 26 Wis.2d 683, 133 N.W.2d 267, 275 (1965). In fact, the Restatement “has expressly approved” promissory estoppel’s use to protect reliance on indefinite promises. See Michael B. Metzger & Michael J. Phillips, Promissory Estoppel and Reliance on Illusory Promises, 44 Sw. L.J. 841, 842 (1990). But see Alan Schwartz & Robert E. Scott, Precontractual Liability and Preliminary Agreements, 120 Harv. L.Rev. 661, 669-70 (2007) (“To the contrary, the Restatement of Contracts has only one definition of a promise, and that definition applies equally to a promise that is the product of a bargained-for exchange and a promise for which enforcement is sought on the grounds of induced reliance. Thus, if Hoffman stands for the proposition that a commitment can be binding under a theory of promissory estoppel even though it lacks the clarity and certainty required of a bargained-for promise, the case is wrong as a matter of doctrine.”).

Massachusetts’s continued insistence that a promise be definite — at least to a degree likely not met in the present case— is arguably in tension with its adoption of the Restatement’s more relaxed standard. This tension is not irreconcilable, however. Tracing the development of promissory estoppel through the case law reveals a willingness on courts’ part to enforce even an indefinite promise made during preliminary negotiations where the facts suggest that the promisor’s words or conduct were designed to take advantage of the promisee. The promisor need not have acted fraudulently, deceitfully, or in bad faith. McLearn v. Hill, 276 Mass. 519, 524-25, 177 N.E. 617 (1931). Rather, “[fjacts falling short of these elements may constitute conduct contrary to general principles of fair dealing and to the good conscience which ought to actuate individuals and which it is the design of courts to enforce.” Id. at 524, 177 N.E. 617. As the Supreme Judicial Court remarked in an early promissory estoppel case:

[I]t is not essential that the representations or conduct giving rise to [the doctrine’s] application should be fraudulent in the strictly legal significance of that term, or with intent to mislead or deceive; the test appears to be whether in all the circumstances of the case conscience and duty of honest dealing should deny one the right to repudiate the consequence of his representations or conduct; whether the author of a proximate cause may justly repudiate its natural and reasonably anticipated effect; fraud, in the sense of a court of equity, properly including all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence, justly reposed, and are injurious to another or by which an undue and unconscientious advantage is taken of another.

Id. at 525, 177 N.E. 617 (quoting Howard v. West Jersey & Seashore R.R., 102 N.J. Eq. 517, 141 A. 755, 757 (N.J.Ch.1928), aff'd, 104 N.J. Eq. 201, 144 A. 919 (N.J. 1929)).

Typically, where the Massachusetts courts have applied the doctrine of promissory estoppel to enforce an otherwise unenforceable promise, “there has been a pattern of conduct by one side which has dangled the other side on a string.” Pappas Indus. Parks, Inc. v. Psarros, 24 Mass.App.Ct. 596, 598, 511 N.E.2d 621 (1987) (citing Greenstein v. Flatley, 19 Mass.App.Ct. 351, 352-54, 474 N.E.2d 1130 (1985); Loranger Constr. Corp. v. E.F. Hauserman Co., 6 Mass.App.Ct. 152, 154-59, 374 N.E.2d 306 (1978), aff'd, 376 Mass, at 759-61, 384 N.E.2d 176; Cellucci v. Sun *345 Oil Co., 2 Mass.App.Ct. 722, 725-28, 320 N.E.2d 919 (1974), aff'd, 368 Mass. 811, 331 N.E.2d 813 (1975)). In Greenstein, where a landlord submitted a lease to a prospective tenant and then strung him along for more than four months before repudiating the lease he had submitted, the Massachusetts Appeals Court concluded that the conduct of the landlord “was calculated to misrepresent the true situation to the [tenant], keep him on a string, and make the [tenant] conclude — reasonably—that the deal had been made and that only a bureaucratic formality remained.” 19 Mass.App.Ct. at 356, 474 N.E.2d 1130. Because this conduct “was misleading, it fít[ ] comfortably ‘within at least the penumbra of some common-law, statutory, or other established concept of unfairness.’ ” Id. (quoting PMP Assocs., Inc. v. Globe Newspaper Co., 366 Mass. 593, 596, 321 N.E.2d 915 (1975)); see Avery Katz, When Should an Offer Stick? The Economics of Promissory Estoppel in Preliminary Negotiations, 105 Yale L.J. 1249, 1254 (1996) (“The doctrine of promissory estoppel is commonly explained as promoting the same purposes as the tort of misrepresentation: punishing or deterring those who mislead others to their detriment and compensating those who are misled.”). While Greenstein presented a situation ripe for a straightforward application of promissory estoppel, the court noted that “[i]t is not even necessary that the conduct complained of fit into a precise tort or contract niche” for relief to be appropriate. 19 Mass.App.Ct. at 356, 474 N.E.2d 1130 (citing Slaney v. Westwood Auto, Inc., 366 Mass. 688, 693, 322 N.E.2d 768 (1975)).

The circumstances of the McLearn case, quoted from above, are also instructive. See 276 Mass. 519, 177 N.E. 617. There, after the plaintiff timely filed his tort claim in a municipal court, the defendant convinced him to dismiss it and refile in the Superior Court, where a number of other lawsuits arising from the same motor vehicle accident were pending a consolidated trial. Id. at 521, 177 N.E. 617. But, in so doing, the plaintiffs second action was filed after the one-year statute of limitations had run, and the defendant promptly asserted this as a defense. Id. at 521-22, 177 N.E. 617. The defendant had not expressly promised not to plead the statute of limitations, but the court deemed it “a necessary implication,” as “the arrangement suggested by the defendant could be carried out only by not pleading the statute.” Id. at 527, 177 N.E. 617. The court observed that “the plaintiff ha[d] suffered direct harm brought about by conduct of the defendant when he discontinued an action seasonably brought to enforce his claim; and the defendant ha[d] acquired the direct advantage of being enabled to interpose a defence resting on that conduct alone.” Id. at 526, 177 N.E. 617. Having acted in a manner “not consonant with fairness and designed to induce action by the plaintiff to his harm,” the defendant was estopped from raising the statute as a defense. Id. at 527, 177 N.E. 617.

One final case, the core allegations of which mirror those presented in the Dixons’ complaint, merits mention. In Cohoon v. Citizens Bank, No. 002774, 2000 WL 33170737 (Mass.Super. Nov. 11, 2000) (Agnes, J.), the parties orally agreed to a discounted payoff in full satisfaction of the plaintiffs original mortgage obligation. Id. at *1. The defendant encouraged the plaintiff to default on a mortgage payment to ensure approval of the discounted payoff. Id. at *4. Until that time, the plaintiff had made timely payments. Id. Once in default, however, the defendant sold the note to a buyer who promptly commenced foreclosure. Id. The court upheld the plaintiffs claim for promissory estoppel because, “[t]aking the facts in the light most favorable to the plaintiff, it could be found *346that [the defendant] encouraged [the plaintiff] to delay mortgage payment and, as a result of that reliance, the eventual buyer ... took advantage of [the plaintiffs] vulnerable state by initiating foreclosure on [the plaintiffs] property interest.” Id. While the court indicated that, to prevail at trial, the plaintiff would need to establish that he “was misled or induced to believe that by defaulting he would achieve the discounted purchase of the note that he was seeking,” Id. at *6, he was at least entitled to “th[is] opportunity to prove facts in support of his claim of detrimental reliance,” Id. at *4.

In the present case, Wells Fargo convinced the Dixons that to be eligible for a loan modification they had to default on their payments, and it was only because they relied on this representation and stopped making their payments that Wells Fargo was able to initiate foreclosure proceedings. While there is no allegation that its promise was dishonest, Wells Fargo distinctly gained the upper hand by inducing the Dixons to open themselves up to a foreclosure action. In specifically telling the Dixons that stopping their payments and submitting financial information were the “steps necessary to enter into a mortgage modification,” Wells Fargo not only should have known that the Dixons would take these steps believing their fulfillment would lead to a loan modification, but also must have intended that the Dixons do so. The bank’s promise to consider them for a loan modification if they took those steps necessarily “involved as matter of fair dealing an undertaking on [its] part not to [foreclose] based upon facts coming into existence solely from” the making of its promise. McLearn, 276 Mass. at 523-24, 177 N.E. 617; see Aceves, 120 Cal.Rptr.3d at 514 (“U.S. Bank agreed to ‘work with [Aceves] on a mortgage reinstatement and loan modification’ if she no longer pursued relief in the bankruptcy court---- [This promise] indicates that U.S. Bank would not foreclose on Aceves’s home without first engaging in negotiations with her to reinstate and modify the loan on mutually agreeable terms.”); cf. Vigoda v. Denver Urban Renewal Auth., 646 P.2d 900, 905 (Colo.1982) (ruling that the plaintiffs allegation that she incurred losses in reasonable reliance on the defendant’s promise to negotiate in good faith was sufficient to state a claim for relief). Wells Fargo’s decision to foreclose without warning was unseemly conduct at best. In the opinion of this Court, such conduct presents “an identifiable occasion for applying the principle of promissory estoppel.” Greenstein, 19 Mass.App.Ct. at 356-57, 474 N.E.2d 1130.

As the cases reveal, where, like here, the promisor opportunistically has strung along the promisee, the imposition of liability despite the preliminary stage of the negotiations produces the most equitable result. This balancing of the harms “is explicitly made an element of recovery under the doctrine of promissory estoppel by the last words of [section 90 of the Restatement], which make the promise binding only if injustice can be avoided by its enforcement.” Metzger & Phillips, supra at 849. Binding the promisor to a promise made to take advantage of the promisee is also the most efficient result. Cf. Richard Craswell, Offer, Acceptance, and Efficient Reliance, 48 Stan. L.Rev. 481, 538 (1996). In cases of opportunism, “[the] willingness to impose a liability rule can be justified as efficient since such intervention may be the most cost-effective means of controlling opportunistic behavior, which both parties would seek to control ex ante as a means of maximizing joint gains. Because private control arrangements may be costly, the law-supplied rule may be the most effective means of controlling opportunism and maximizing joint gain.” Juliet P. Kos*347tritsky, The Rise and Fall of Promissory Estoppel or Is Promissory Estoppel Really as Unsuccessful as Scholars Say It Is: A New Look at the Data, 37 Wake Forest L.Rev. 531, 574 (2002); see Katz, supra at 1309 (contending that promissory estoppel can help “regulat[e] the opportunistic exercise of bargaining power” during preliminary negotiations); Schwartz & Scott, supra at 667 (remarking that protecting the party who has relied “will deter some strategic behavior”).

There remains the concern that, by imposing precontractual liability for specific promises made to induce reliance during preliminary negotiations, courts will restrict parties’ freedom to negotiate by reading in a duty to bargain in good faith not recognized at common law. While this concern does not fall on deaf ears, it can be effectively minimized by limiting the promisee’s recovery to his or her reliance expenditures. See Farnsworth, supra at 267 (remarking that, where relief involves an award of reliance damages only, courts need not be troubled by “the indefiniteness of the concept of fair dealing”); Metzger & Phillips, supra at 853-54 (commenting that “reliance-based damage awards may sometimes be preferable in promissory estoppel eases” because, where the promise is indefinite, specific performance or expectation damages are not possible); Schwartz & Scott, supra at 667 (stating that, while the emerging legal rule requiring parties to bargain in good faith but not requiring them to reach an agreement is “a step in the right direction,” “efficiency would be enhanced if the law were simply to protect the promisee’s reliance interest”); see also Restatement (Second) of Contracts § 90 (“The remedy granted for breach may be limited as justice requires.”). See generally L.L. Fuller & William R. Perdue, Jr., The Reliance Interest in Contract Damages (Part I), 46 Yale L.J. 52 (1936). “Because promissory estoppel allows a reliance-based damage recovery in appropriate cases, it provides courts an alternative to forcing an unjustly terminated party into an unpromising relationship.” Metzger & Phillips, supra at 888; see Bebchuk & Ben-Shahar, supra at 451-52 (contending that, by imposing “an interim measure of liability, extending only to reliance investments,” courts need not “make the contract for the parties”).

Moreover, because the promisee’s reliance must be not only reasonable and foreseeable but also detrimental, such that injustice would result if the promise were not binding, “the doctrine renders the motive of the promisor a secondary consideration in deciding whether to award relief.” Metzger & Phillips, supra at 888. Although some sense that the promisor has acted to take unfair advantage of the promisee is typically what prompts courts to enforce promises made during preliminary negotiations, the foreseeability and injustice requirements of section 90 render inquiry into whether the promisor acted in bad faith unnecessary, which, in turn, obviates any need to impose a precontractual duty to negotiate in good faith.1 See Id. at *348873 (referring to promissory estoppel as “superior to good faith as a device for protecting reliance”). It is also worth noting that “few claims that arise are fairly treated under the existing grounds of ... [a] specific promise [made during negotiations]. As long as these grounds are not often invoked and have not been pushed to their limits, there will be little pressure to add a general obligation of fair dealing.” Farnsworth, supra at 242.

Finally, contrary to the conventional wisdom that precontractual liability unduly restricts the freedom to negotiate, a default rule allowing recovery but limiting it to reliance expenditures may in fact promote more efficient bargaining. See Bebchuk & Ben-Shahar, supra at 457; Schwartz & Scott, supra at 690. “[T]he existence of liability does not chill the parties’ incentives to enter negotiation,” Bebchuk & Ben-Shahar, supra at 457, as “[r]ational parties will pursue efficient projects and abandon inefficient projects .... disagreeing], if at all, over whether a party should be compensated for a reliance expense,” Schwartz & Scott, supra at 667. It is only under the current regime of either no liability or strict liability that negotiating parties are discouraged from making early and “exploratory investments that are a necessary precondition to the later writing of efficient final contracts.” Id. at 690; see Bebchuk & Ben-Shahar, supra at 457; Katz, supra at 1267. In contrast, a scheme of reliance-only precontractual liability makes negotiations more desirable by inducing optimal-level commitment from each party. See Bebchuk & Ben-Shahar, supra at 457. Certainly, enforcement of specific promises made to induce reliance during preliminary negotiations “might sometimes work an injustice on promisors.” Metzger & Phillips, supra at 851; see Katz, supra at 1273. But reliance-based recovery in such instances offers the most equitable and efficient result without “distorting] the incentives to enter negotiations” in the first place. Bebchuk & Ben-Shahar, supra at 457.

This Court, therefore, holds that the complaint states a claim for promissory estoppel: Wells Fargo promised to engage in negotiating a loan modification if the Dixons defaulted on them payments and provided certain financial information, and they did so in reasonable reliance on that promise, only to learn that the bank had taken advantage of their default status by initiating foreclosure proceedings. Assuming they can prove these allegations by a preponderance of the evidence, them damages appropriately will be confined to the value of their expenditures in reliance on Wells Fargo’s promise.2

*349Without question, this is an uncertain result. But the “type of life-situation” out of which the Dixons’ case arises — a devastating and nationwide foreclosure crisis that is crippling entire communities — cannot be ignored. Karl N. Llewellyn, Jurisprudence Realism in Theory and Practice 219-20 (1962). Distressed homeowners are turning to the courts in droves, hoping for relief for what they perceive as misconduct by their mortgage lenders. Many of these cases are factually similar, if not identical to, the Dixons’ case. Yet, with the notable exception of three Massachusetts federal district court cases,3 virtually *350no other court has upheld a claim for promissory estoppel premised on such facts.4

*352To the extent that today’s result is an anomaly, this Court has sought to explain its decision “openly and with respect for precedent, not by sleight of hand.” David L. Shapiro, Mr. Justice Rehnquist: A Preliminary View, 90 Harv. L.Rev. 293, 355 (1976); see Robert E. Keeton, Keeton on Judging in the American Legal System 5 (1999) (“Judging is choice---- Judicial choice, at its best, is reasoned choice, candidly explained.”). It is the view of this Court that “[foreclosure is a powerful act with significant consequences,” Ibanez, 458 Mass. at 655, 941 N.E.2d 40 (Cordy, J., concurring), and where a bank has obtained the opportunity to foreclose by representing an intention to do the exact opposite — i.e., to negotiate a loan modification that would give the homeowner the right to stay in his or her home — the doctrine of promissory estoppel is properly invoked under Massachusetts law to provide at least reliance-based recovery.5

*353C. HOLA Preemption

Having concluded that the Dixons’ complaint states a claim for promissory estoppel, the Court now turns to Wells Fargo’s contention that this state-law cause of action is preempted by the federal statutory and regulatory scheme of HOLA.

Pursuant to the Supremacy Clause of Article VI, clause 2, of the United States Constitution, federal law preempts state law where Congress has “enact[ed] a regulatory scheme ‘so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it.’ ” SPGGC, LLC v. Ayotte, 488 F.3d 525, 530 (1st Cir.2007) (quoting Barnett Bank of Marion Cnty., N.A. v. Nelson, 517 U.S. 25, 31, 116 S.Ct. 1103, 134 L.Ed.2d 237 (1996)). Federal statutes and the regulations adopted thereunder have equal preemptive effect. Fidelity Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982).

In 1933, Congress enacted HOLA as “a radical and comprehensive response” to the devastating effect of the Great Depression on the national housing market. Id. at 159-60, 102 S.Ct. 3014 (quoting Conference of Fed. Sav. & Loan Ass’ns. v. Stein, 604 F.2d 1256, 1257 (9th Cir.1979)). At the time, roughly half of all home loans were in default, and nearly one-fifth of the nation’s population was without access to home-financing opportunities. See Id. at 159-60, 102 S.Ct. 3014. In passing HOLA, Congress sought to provide emergency relief to homeowners while simultaneously restoring public confidence in a network of centrally regulated federal savings and loan associations. Id. at 159-61, 102 S.Ct. 3014; Silvas v. E*Trade Mortg. Corp., 514 F.3d 1001, 1004 (9th Cir.2008).

Through HOLA, Congress created the Office of Thrift Supervision (the “OTS”)6 and gave its director plenary authority to regulate and govern “the powers and operations of every Federal savings and loan association from its cradle to its corporate grave.”7 de la Cuesta, 458 U.S. at 145, 102 S.Ct. 3014 (quoting People v. Coast Fed. Sav. & Loan Ass’n, 98 F.Supp. 311, 316 (S.D.Cal.1951)); see 12 U.S.C. § 1464; 12 C.F.R. §§ 500.1(a) (giving the OTS “responsibility] for the administration and enforcement of [HOLA]”), 500.10 (delineating the functions of the OTS as to “charter, supervise, regulate and examine Federal savings associations”). “This is an extremely broad grant of power that *354provides ample authority for the [OTS] Director’s efforts to enforce consistent, nationwide regulations affecting lending practices, by preemption].” Flagg v. Yonkers Sav. & Loan Ass’n, FA 396 F.3d 178, 183 (2d Cir.2005). “The Supreme Court has stated that ‘[i]t would have been difficult for Congress to give the [OTS] a broader mandate.’ ” SPGGC, 488 F.3d at 535 (quoting de la Cuesta, 458 U.S. at 161, 102 S.Ct. 3014).

Pursuant to this broad mandate, the OTS has promulgated extensive regulations, including two that preempt state statutory and common-law causes of action that otherwise would regulate the operations of federal savings associations. See 12 C.F.R. § 545.2 (stating that the OTS’s exercise of its regulatory authority “is preemptive of any state law purporting to address the subject of the operations of a Federal savings association”); Id. § 560.2 (“[The] OTS hereby occupies the entire field of lending regulation for federal savings associations. [The] OTS intends to give federal savings associations maximum flexibility to exercise their lending powers in accordance with a uniform federal scheme of regulation. Accordingly, federal savings associations may extend credit as authorized under federal law, including this part, without regard to state laws purporting to regulate or otherwise affect their credit activities, except to the extent provided in paragraph (c) of this section....”). That OTS regulations are “preemptive of any state law purporting to address the subject of the operations of a Federal savings association” has been recognized by the First Circuit. SPGGC, 488 F.3d at 535 (quoting 12 C.F.R. § 545.2). Moreover, courts have considered these preemptive regulations to have been enacted within the scope of the OTS’s congressionally delegated authority. See, e.g., Flagg, 396 F.3d at 182-84.

The regulations set forth an analytical framework for courts to follow in determining whether a specific state law is preempted by HOLA. See 12 C.F.R. § 560.2; Lending and Investment, 61 Fed. Reg. 50951, 50966-67 (Sept. 30, 1996) (codified at 12 C.F.R. pts. 545, 560, 563, 566, 571, 590). First, a court must decide whether the law in question appears in section 560.2(b)’s illustrative list of types of state laws that are definitively preempted. 61 Fed.Reg. at 50966. These include “[t]he terms of credit, including ... adjustments to the interest rate, balance, payments due, or term to maturity of the loan;” “[disclosure and advertising;” and “[processing, origination, servicing, sale or purchase of, or investment or participation in, mortgages.” 12 C.F.R. § 560.2(b)(4), (b)(9), (b)(10). If the law is not of a type appearing in paragraph (b) of section 560.2, the court must analyze whether the law “affects lending.” 61 Fed.Reg. at 50966. If so, then it presumptively is preempted, rebuttable only if the law clearly is shown to fit within the purview of paragraph (c). Id.

Paragraph (c) lists state laws that HOLA is not presumed to preempt, including contract and commercial law, real property law, homestead laws, tort law, and criminal law. 12 C.F.R. § 560.2(c). Any other law that, in the estimation of the OTS, promotes a vital state interest and either has only an incidental effect on lending or is not otherwise contrary to the regulatory intent to “occupy the field” is also not preempted. Id. Courts, however, are to interpret paragraph (c) narrowly, with any doubt resolved in favor of preemption. 61 Fed.Reg. at 50966. As the OTS has said, “the purpose of paragraph (c) is to preserve the traditional infrastructure of basic state laws that undergird commercial transactions, not to open the door to state regulation of lending by federal savings associations.” Id. A plaintiffs *355complaint, therefore, must be divided into claims which “fall on the regulatory side of the ledger and [those] which, for want of a better term, fall on the common law side.” In re Ocwen Loan Servicing, LLC Mortg. Servicing Litig., 491 F.3d 638, 644 (7th Cir.2007) (Posner, J.).

The Eighth and Ninth Circuits have interpreted the OTS’s analytical framework to mean that any “state law that either on its face or as applied imposes requirements regarding the examples listed in § 560.2(b) is preempted.” Casey v. Federal Deposit Ins. Corp., 583 F.3d 586, 595 (8th Cir.2009); Silvas, 514 F.3d at 1006. In other words, “a state law that on its face is not one described in § 560.2(b) may nevertheless be preempted if, as applied, it fits within § 560.2(b).” Casey, 583 F.3d at 594. Under this “as applied” rule, only generally applicable state laws that fit within paragraph (c) without more than incidentally affecting lending are exempt from preemption. See Jones v. Home Loan Inv., FSB, 718 F.Supp.2d 728, 734 (S.D.W.Va.2010).

While the Sixth Circuit has addressed express preemption under paragraph (b), see State Farm Bank v. Reardon, 539 F.3d 336, 347-49 (6th Cir.2008), the Seventh Circuit is the only other appellate court to have applied the paragraph (c) analysis, see In re Ocwen Loan Servicing, 491 F.3d at 643-44.8 Judge Posner, writing for a three-judge panel, recognized that, while the OTS has plenary authority over federal savings banks, HOLA does not provide a private right of action to consumers, leaving them with “little recourse in disputes with federal savings banks outside of those generally applicable state laws exempted from preemption in § 560.2(c).” Jones, 718 F.Supp.2d at 734 (discussing Judge Posner’s opinion). The Seventh Circuit thus interpreted paragraph (c), on balance, “to mean that [the] OTS’s assertion of plenary regulatory authority does not deprive persons harmed by the wrongful acts of savings and loan associations of their basic state common-law-type remedies.” In re Ocwen Loan Servicing, 491 F.3d at 643. The court gave two examples:

Suppose [a savings and loan association] signs a mortgage agreement with a homeowner that specifies an annual interest rate of 6 percent and a year later bills the homeowner at a rate of 10 percent and when the homeowner refuses to pay institutes foreclosure proceedings. It would be surprising for a federal regulation to forbid the homeowner’s state to give the homeowner a defense based on the mortgagee’s breach of contract. Or if the mortgagee *356(or a servicer like Ocwen) fraudulently represents to the mortgagor that it will forgive a default, and then forecloses, it would be surprising for a federal regulation to bar a suit for fraud. Some federal laws do create such bars, notably ERISA, but this is recognized as exceptional. Enforcement of state law in either of the mortgage-servicing examples above would complement rather than substitute for the federal regulatory scheme.

Id. at 643-44 (internal citations omitted). If states could not provide protection to consumers through traditional state-law causes of action with only incidental effect on lending, then federal savings associations effectively could “use preemption as a shield to avoid adherence” to the commitments they make to their customers. McAnaney v. Astoria Fin. Corp., 665 F.Supp.2d 132, 164 & n. 36 (E.D.N.Y. 2009); see Binetti v. Washington Mut. Bank, 446 F.Supp.2d 217, 219 (S.D.N.Y. 2006) (expressing concern that “the Bank would be completely insulated from liability for its breach [of contract] if the Court were to find plaintiffs claim preempted”).

At the same time, courts must be wary of artfully pleaded attempts to use common-law claims as a clandestine way of imposing requirements on lenders that states otherwise could not enact through legislation or regulation. McAnaney, 665 F.Supp.2d at 169 n. 39. Courts must look beyond “the label given to the putative cause of action,” Schilke v. Wachovia Mortg., FSB, 758 F.Supp.2d 549, 557 (N.D.Ill.2010), and instead undertake “an independent fact-intensive inquiry into the substance of each claim raised,” Bishop v. Ocwen Loan Servicing, LLC, Civ. No. 3:10-0468, 2010 WL 4115463, at *4 (S.D.W.Va. Oct. 19, 2010). See Watkins v. Wells Fargo Home Mortg., 631 F.Supp.2d 776, 782-83 (S.D.W.Va.2008) (“If the plaintiff truly complains of a term or practice outside the purview of the federal regulations, there is no preemption. However, conflicting state regulation masquerading as a common law contract claim cannot be allowed to supplant existing federal regulations.”). The question is one of function, not theory: will enforcement of the cause of action interfere with or contravene lending, the regulation of which Congress has committed exclusively to a federal agency? See Naulty v. GreenPoint Mortg. Funding, Inc., Nos. C 09-1542 MHP, C 09-1545 MHP, 2009 WL 2870620, at *4 (N.D.Cal. Sept. 3, 2009). “[I]f the conduct complained of ... falls within the scope of federal authority concerning lending activities, it is preempted.” Schilke, 758 F.Supp.2d at 557; see Gibson v. World Sav. & Loan Assoc., 103 Cal.App.4th 1291, 128 Cal.Rptr.2d 19, 27 (2002) (“As to each state law claim, the central inquiry is whether the legal duty that is the predicate of the claims constitutes a requirement or prohibition of the sort that federal law expressly preempts.”). This functional analysis is consistent with the “as applied” rule of the Eighth and Ninth Circuits as well as the balancing approach of the Seventh Circuit. See Coffman v. Bank of Am., NA, No. 2:09-00587, 2010 WL 3069905, at *6 (S.D.W.Va. Aug. 4, 2010) (“[B]oth approaches are, in essence, a method of determining whether a plaintiffs state law claim attempts to impose requirements upon the lending activities of federal savings banks.”); Jones, 718 F.Supp.2d at 735 (“In Casey, Silvas, and Ocwen, the courts considered the specific nature of each state law claim to determine whether an allegation is a state-based cause of action or an attempt at regulation preempted by section 560.2(b).”).

Here, the only claim sufficiently pleaded to survive the motion to dismiss is that of promissory estoppel. The allegations that form the basis of this claim are that (1) *357Wells Fargo orally promised to negotiate a loan modification agreement if the Dixons took certain steps, and (2) despite the Dixons’ compliance, Wells Fargo never engaged in modifying their loan and instead initiated foreclosure proceedings. Promissory estoppel, as an alternative to a breach of contract claim, undeniably falls within the purview of traditional state law. It nonetheless may be preempted if the alleged misconduct fits into one of the categories identified in paragraph (b) or if the practical effect on lending is more than incidental under paragraph (c).

Wells Fargo argues that the Dixons’ claim seeks to impose substantive requirements regarding several expressly preempted categories, specifically (1) the terms of the loan; (2) the lender’s disclosure obligations; and (3) the processing, origination, servicing, or investment or participation in mortgages. Def.’s Mem. Supp. 11 (citing 12 C.F.R. § 560.2(b)(4), (b)(9), (b)(10)). The Dixons, however, do not assert that they were entitled to a loan modification; nor do they demand that their loan be modified in a particular way. They acknowledge that, at most, Wells Fargo promised to negotiate a modification, but argue that, because they took the steps that Wells Fargo instructed them to take, Wells Fargo cannot now deny its promise to consider their eligibility. This has no bearing on the terms of any modification that the parties might negotiate in the future.

There is some suggestion in the complaint that Wells Fargo failed to notify the Dixons that their loan modification application had been denied before it initiated foreclosure proceedings. This is tangential to the promissory estoppel issue, however, and thus the Court need not address whether the allegations that touch on Wells Fargo’s disclosure obligations are preempted by HOLA.

Undoubtedly, the claim that Wells Fargo failed to uphold a promise to consider the Dixons for a loan modification relates to Wells Fargo’s “servicing” of the mortgage. See 12 C.F.R. § 560.2(b)(10). But the standard for express preemption is more than “relates to.” See Coffman, 2010 WL 3069905, at *6 (citing In re Ocwen Loan Servicing, 491 F.3d at 643-44). The claim must “purport[ ] to impose requirements” regarding loan servicing for express preemption to apply. 12 C.F.R. § 560.2(b). Here, the Dixons do not aim to impose any substantive requirement on the loan modification process used by Wells Fargo, in particular, or federal savings banks, in general. Coffman, 2010 WL 3069905, at *9. The promissory estoppel claim seeks not to attack Wells Fargo’s underlying loan servicing policies and practices, but rather to hold the lender to its word, on which the Dixons relied to their detriment. Enforcement of Wells Fargo’s promise merely requires the lender to deal fairly and honestly, which no more burdens those lending operations listed in paragraph (b) than it does everyday business transactions. Bishop, 2010 WL 4115463, at *5 (“[Requiring a bank to perform the obligations of its contract in good faith implicates none of the concerns embodied in HOLA.”); see Morse v. Mutual Fed. Sav. & Loan Ass’n of Whitman, 536 F.Supp. 1271, 1281 (D.Mass.1982) (Aldrich, J.) (“An award of Chapter 93A exemplary damages against defendant would no more threaten the ability of federal savings and loan associations to perform their functions in the Commonwealth than it would state-chartered savings and loan associations, or other corporations subject to the statute.”). “Only claims that are specific to a defendant’s lending activities, as distinguished from legal duties applicable to all businesses, are preempted by HOLA.” Cuevas v. Atlas *358 Realty/Fin. Servs., Inc., No. C 07-02814 JF, 2008 WL 268981, at *3 (N.D.Cal. Jan. 30, 2008).

Turning to paragraph (c) of section 560.2, the Dixons’ promissory estoppel claim “affect[s] lending businesses, just as [it would] affect any other business that enters into contracts or makes representations during the course of its operations.” Gibson, 128 Cal.Rptr.2d at 28. Because it has some effect on lending, a presumption of preemption arises. 61 Fed.Reg. at 50966. This presumption is rebutted here, however, because promissory estoppel, as a state common-law doctrine of general applicability, is “not designed to regulate lending and do[es] not have a disproportionate or otherwise substantial effect on lending.” Gibson, 128 Cal.Rptr.2d at 28-29. All businesses, not just federal savings associations, are subject to the predicate duty that the Dixons seek to enforce — a duty to honor promises made. Compliance with that duty would not require Wells Fargo to alter its loan modification program, or any substantive aspect of its approach to servicing loans, but it would ensure that consumers like the Dixons reasonably could rely on their lenders’ statements without suffering harm as a result.

With the national housing market once again rattled by an overwhelming number of foreclosures, other federal courts have been grappling recently with the preemption issue in cases factually indistinguishable from the present one. Yet, no consensus has emerged with respect to HOLA’s reach. In DeLeon v. Wells Fargo Bank, N.A., No. 10-CV-01390-LHK, 2011 WL 311376 (N.D.Cal. Jan. 28, 2011), for example, the plaintiffs had complied with the steps required by Wells Fargo for a loan modification, which they had been assured would be successful, when abruptly and without warning they lost their home to foreclosure. Id. at *1-2. The court held that the plaintiffs’ intentional misrepresentation claim against Wells Fargo was not preempted by HOLA because it “d[id] not attempt to impose substantive requirements regarding loan terms, disclosures, or servicing or processing procedures.” Id. at *7. Similarly, in Becker v. Wells Fargo Bank, N.A., No. 2:10-cv-02799 LKK KJN PS, 2011 WL 1103439 (E.D.Cal. Mar. 22, 2011), where the plaintiff “allege[d] that he was promised a modification even though [the lender] never intended to modify his loan or seriously consider his application,” the court concluded that the “plaintiffs fraud claim appears to arise from a more ‘general duty not to misrepresent material facts,’ and therefore it does not necessarily regulate lending activity.” Id. at *8-9.9 In con*359trast, however, the court in Zarif v. Wells Fargo Bank, N.A., No. 10cv2688-WQH-WVG, 2011 WL 1085660 (S.D.Cal. Mar. 28, 2011), held that the plaintiffs’ state-law claims, including intentional misrepresentation, negligent misrepresentation, and promissory estoppel, were preempted by HOLA because they “specifically challenge the processing of Plaintiffs’ loan modification application and servicing of Plaintiffs’ mortgage.” Id. at *3.10 There, like here, *360the plaintiffs faced foreclosure after following Wells Fargo’s instruction to stop making their payments while waiting for their loan modification application to be processed.

Without guidance from another court within the First Circuit and without clear direction from other federal and state courts across the nation, this Court agrees with Judge Posner’s conclusion that, especially because HOLA does not give a private right of action, Congress could not have intended to deny all traditional state-law avenues of recourse to consumers who are harmed by the unseemly conduct of lenders. This Court, therefore, holds that the Dixons’ promissory estoppel claim, rooted in the common law and with no ambition of regulating lending, is not barred by HOLA.

III. CONCLUSION, SCHEDULING ORDER, and SOME RUMINATIONS

For the reasons discussed, the Court DENIES Wells Fargo’s motion to dismiss, ECF No. 5. The facts as alleged in the complaint are sufficient to invoke the doctrine of promissory estoppel, and this common-law claim, as applied, is not preempted by federal law.

“Courts across the country are being saddled with a rapid escalation of foreclosure filings due to the fallout from the subprime mortgage crisis. Millions of homeowners stand to lose their homes in the United States ..., and hundreds of billions of dollars in home equity will be lost as a result by all homeowners, not just those in default on their mortgages.” Raymond H. Brescia, Beyond Balls and Strikes: Towards a Problem-Solving Ethic in Foreclosure Proceedings, 59 Case W. Res. L.Rev. 305, 305 (2009).

Instead of abating, the foreclosure crisis has turned into an economic crisis. Today, job loss now pushes many homeowners with prime mortgages into foreclosure, while continuing market decline leaves others owing more on their mortgages than their homes are worth. Current estimates have twenty-five percent of houses ‘underwater,’ and some analysts predict as much as forty-eight percent of all residential properties nationwide will have a negative equity between their mortgage balances and their prop*361erty values before the housing market recovers.

Robin S. Golden, Building Policy Through Collaborative Deliberation: A Reflection on Using Lessons from Practice to Inform Responses to the Mortgage Foreclosure Crisis, 38 Fordham Urb. L.J. 733, 734 (2011) (footnotes omitted).

It is said that talk is cheap. The Dixons’ allegations are easy to make, yet until their veracity is put to the test, foreclosure is inappropriate. But just as the homeowner ought not suffer a wrongful foreclosure, so too the bank has an equal and proper interest in realizing on its mortgage security by putting the home on the market at a foreclosure sale, selling it to a viable buyer, and lending the funds derived to other potential home buyers. This case is but a microcosm of much larger economic issues; to a significant extent, our national economy may depend upon promptly sorting out the issues raised here. Clogging the operation of the mortgage foreclosure system with court delay simply will not work. Either individual rights will be submerged, and people will lose their homes unlawfully, or home mortgage liquidity will atrophy, the larger economy will suffer, and potential home buyers will be denied homeowner-ship, although financially able to support mortgage payments.

A prompt trial of this case is thus absolutely crucial. Here in Massachusetts, this federal district court — one of the most productive in the country, United States v. Massachusetts, Civil Action No. 09-11623-WGY, 2011 WL 1740080, slip op. at chart, ECF. No. 134-1 (D.Mass. May 4, 2011) (Massachusetts is one of “America’s Most Productive federal district courts”) — can provide such a trial.11

Accordingly, this case is ordered placed *362on the September running trial list,12 and the parties shall be ready for trial on Tuesday, September 6, 2011.

SO ORDERED.

OPINION OF THE COURT

BECKER, Circuit Judge.

This diversity case presents the question whether, under Pennsylvania law, a property owner’s promise to a prospective tenant, pursuant to a detailed letter of intent, to negotiate in good faith with the prospective tenant and to withdraw the lease premises from the marketplace during the negotiation, can bind the owner for a reasonable period of time where the prospective tenant has expended significant sums of money in connection with the lease negotiations and preparation and where there was evidence that the letter of intent was of significant value to the property owner. We hold that it may. We therefore vacate and reverse the district court’s determination that there was no enforceable agreement, and remand the case for trial.

I.

Appellant Channel Home Centers (“Channel”), a division of Grace Retail Corporation, operates retail home improvement stores throughout the Northeastern United States, including Philadelphia and its suburbs. Appellee Frank Grossman, a real estate broker and developer, with his sons *293Bruce and Jeffrey Grossman, either owns or has a controlling interest in appellees Tri-Star Associates (“Tri-Star”), Baker Investment Corporation (“Baker”), and Ce-darbrook Associates, a Pennsylvania Limited Partnership (“Cedarbrook”).1

Between November, 1984 and February, 1985, the Grossmans, through Baker, were in the process of acquiring ownership of Cedarbrook Mall (“the mall”) located in Cheltenham Township, Pennsylvania, a northern suburb of Philadelphia. During these months, Baker was the equitable owner of the mall, Tri-Star was acting as the mall’s leasing agent, and legal title was in Equitable Life Assurance Society. It was anticipated that, upon closing in February, 1985, Baker would become both legal and equitable owner of the mall. App. at 218a-219a, 496a. The Grossmans intended to revitalize the mall, which had fallen on hard times prior to their acquisition, through an aggressive rehabilitation and leasing program.

In the third week of November, 1984, Tri-Star wrote to Richard Perkowski, Director of Real Estate for Channel, informing him of the availability of a store location in Cedarbrook Mall which Tri-Star believed Channel would be interested in leasing. Perkowski expressed some interest, and met the Grossmans on November 28, 1984. After Perkowski was given a tour of the premises, the terms of a lease were discussed. App. at 457a, 496a. Frank Grossman testified that “we discussed various terms, and these terms were, some were loose, some were more or less terms.” App. at 364a, 496a-497a.

In a memorandum dated December 7, 1984, to S. Charles Tabak, Channel’s senior vice-president for general administration, Perkowski outlined the salient lease terms that he had negotiated with the Grossmans. App. at 97a. On or about the same date, Tabak and Leon Burger, President of Channel, visited the mall site with the Grossmans. They indicated that Channel desired to lease the site. App. at 413a-415a. Frank Grossman then requested that Channel execute a letter of intent that, as Grossman put it, could be shown to “other people, banks or whatever.” App. at 366a-367a. Tabak testified that the Grossmans wanted to get Channel into the site because it would give the mall four “anchor” stores. App. at 414a. Apparently, Frank Grossman was anxious to get Channel’s signature on a letter of intent so that it could be used to help Grossman secure financing for his purchase of the mall. App. at 366a-367a, 497a.

On December 11, 1984, in response to Grossman’s request, Channel prepared, executed, and submitted a detailed letter of intent setting forth a plethora of lease terms which provided, inter alia, that

[t]o induce the Tenant [Channel] to proceed with the leasing of the Store, you [Grossman] will withdraw the Store from the rental market, and only negotiate the above described leasing transaction to completion.

Please acknowledge your intent to proceed with the leasing of the store under the above terms, conditions and understanding by signing the enclosed copy of the letter and returning it to the undersigned within ten (10) days from the date hereof.

App. at 31a.2

Frank Grossman promptly signed the letter of intent and returned it to Channel. *294App. at 499a. Grossman contends that Perkowski and Tabak also agreed orally that a draft lease be submitted within thirty (30) days. App. at 331a-332a, 365-366a. Perkowski and Tabak denied telling Gross-man that a lease would be forthcoming within 30 days or any finite period of time. App. at 445a, 473a.

Thereafter, both parties initiated procedures directed toward satisfaction of lease contingencies. The letter of intent specified that execution of the lease was ex*295pressly subject to each of the following: (1) approval by Channel’s parent corporation, W.R. Grace & Company (“Grace”), of the essential business terms of the lease; (2) approval by Channel of the status of title for the site; and (3) Channel’s obtaining, with Frank Grossman’s cooperation, all. necessary permits and zoning variances for the erection of Channel’s identification signs. App. at 30a; see supra note 2.

On December 14, 1984, Channel directed the Grace legal department to prepare , a lease for the premises. Channel’s real estate committee approved the lease site on December 20, 1984. App. at 472a. Channel planning representatives visited the premises on December 21, 1984, to obtain measurements for architectural alterations, renovations and related construction. App. at 379a. Detailed marketing plans were developed, building plans drafted, delivery schedules were prepared and materials and equipment deemed necessary for the store were purchased. App. at 91a-96a, 99a-135a, 422a-423a, 517a-547a. The Gross-mans applied to the Cheltenham Township building and zoning committee for permission to erect commercial signs for Channel and other tenants of the mall. App. at 15a.

On January 11, 1985, Frank Shea, Esquire, of the Grace legal department sent to Frank Grossman two copies of a forty-one (41) page draft lease and, in a cover letter, requested copies of several documents to be used as exhibits to the lease. App. at 43a-44a. On January 16, 1985, Frank Shea received the following letter from Bruce Grossman:

Dear Mr. Shea:

As you requested, enclosed please find the following documents:

1) A copy of a recent title report for the Cedarbrook Mall (the “Mall”),

2) A legal description of the Mall,

3) A site plan of the Mall, and

4) A description of the Landlord’s construction.

As we discussed, we have commenced work on the Channel location at the Mall and would, therefore, appreciate your assistance in expediting the execution of the Channel lease.

I look forward to hearing from you soon. Very truly yours,

BAKER INVESTMENT CORPORATION

/s/

Bruce S. Grossman, Executive Vice President

App. at 16a. On January 21, 1985, Frank Shea received a copy of a letter from Frank Grossman to Richard Perkowski dated January 17, 1985. It provided:

At Frank Shea’s request, enclosed is a site plan for the Cedarbrook Mall and also a copy of the proposed pylon sign design.

We look forward to executing the lease agreement in the very near future. If you have any questions, please feel free to call me.

App. at 46a.

Bruce Grossman called Shea on January 23, 1985 to discuss the lease. The only item Grossman could recall discussing pertained to the “use” clause in the lease, specifically whether Channel could use the site for warehouse facilities at some future point. App. at 286a-287a, 502a. Apparently, Grossman then related other areas of concern and Shea suggested that a telephone conference be arranged with all parties the following week. App. at 382a, 502a. Grossman agreed. According to Grossman, Shea was supposed to initiate the conference call; however, when the call was not forthcoming, Grossman did not attempt to reach Shea or anyone else at Channel. App. at 389a-390a. Shea understood that the Grossmans were going to discuss the lease among themselves and get back to him. App. at 448a.

On or about January 22, 1985, Stephen Erlbaum, Chairman of the Board of Mr. Good Buys of Pennsylvania, Inc. (“Mr. Good Buys”), contacted Frank Grossman. Like Channel, Mr. Good Buys is a corporation engaged in the business of operating retail home improvement centers; it is a major competitor of Channel in the Philadelphia area. App. at 20a-21a. Erlbaum *296advised Grossman that Mr. Good Buys would be interested in leasing space at Cedarbrook Mall, and sent Grossman printed information about Mr. Good Buys. App. at 202a.

On January 24, 1985, construction representatives from Channel met at the mall site to go over building alterations and designs. App. at 287a-288a, 503a. The next day, January 25, 1985, Erlbaum and other representatives from Mr. Good Buys met with the Grossmans and toured Channel’s proposed lease location. App. at 503a. When Erlbaum expressed an interest in leasing this site, lease terms were discussed. Id.

On February 6, 1985, Frank Grossman notified Channel that “negotiations terminated as of this date” due to Channel’s failure to submit a signed and mutually acceptable lease for the mall site within thirty days of the December 11, 1984 letter of intent. App. at 42a. (This was the first and only written evidence of the purported thirty-day time limit. The letter of intent contained no such term. See discussion supra at 8.) On February 7, 1985, Mr. Good Buys and Frank Grossman executed a lease for the Cedarbrook Mall. App. at 147a-196a. Mr. Good Buys agreed to make base-level annual rental payments which were substantially greater than those agreed to by Channel in the December 11,1984 letter of intent. App. at 147a.3 Channel's corporate parent, Grace, approved the terms of Channel’s proposed lease on February 13, 1985. App. at 443a-444a.

II.

Channel commenced this diversity action, 28 U.S.C. § 1332(a), in the district court for the Eastern District of Pennsylvania on February 15, 1985.4 Count I of Channel’s complaint alleged that appellees’ conduct violated the December 11, 1984 letter of intent and constituted a breach of contract; Count II was in the form of a motion for a temporary restraining order (“TRO”) and preliminary injunction to restrain appellees from violating the letter of intent by entering into a lease agreement with Mr. Good Buys for the Cedarbrook Mall premises. App. at 4a-8a. In a supporting affidavit, S. Charles Tabak averred that Channel had substantially completed all tasks necessary to meet the opening date contemplated in the letter of intent and that it had made out-of-pocket expenditures to this end in the sum of $25,000. App. at 9a-14a.

On February 15, 1985 the district court granted a TRO restraining and enjoining appellees from surrendering or tendering possession of the premises described in the letter of intent to anyone other than Channel pending a determination of Channel’s motion for preliminary injunction. App. at 2a. A preliminary injunction hearing was held on February 25,1985. App. at 2a. At the hearing, which lasted approximately ten minutes,5 the district court requested that live testimony be limited to matters not covered in depositions. The testimony taken was not fully transcribed. See Brief of Appellant at 3.

Thereafter, on March 26, 1985, the district court filed a Memorandum Opinion *297and Order that consolidated Channel’s motion for a preliminary injunction with the trial on the merits. App. at 495a-508a. Fed.R.Civ.P. 65(a)(2). The court’s Order denied Channel’s motion for preliminary injunction and entered judgment in favor of appellees. Additionally, the Order denied as moot Mr. Good Buy’s motion for leave to intervene as a party plaintiff.

In its opinion, the district court rejected Channel’s arguments that the letter of intent constituted either a valid unilateral or a valid bilateral agreement. The court concluded that the letter of intent (1) did not bind the parties to any obligation; (2) was unenforceable for lack of consideration; and, (3) was insufficient to satisfy the Pennsylvania Statute of Frauds for leases, inasmuch as it contemplated a future negotiation, Pa.Stat.Ann. tit. 68 § 250.202-203 (Purdon’s 1965 & Supp.1986).

On April 5, 1985, Channel filed a motion for reconsideration, arguing that the district court erred by consolidating its denial of the preliminary injunction with an adjudication on the merits without prior notice to the parties. Channel argued that, because the preliminary injunction hearing had been held only ten days after Channel had filed its complaint, there had been insufficient time to complete discovery. Full evidentiary development, Channel contended, required substantially more discovery by way of interrogatories, document requests, and depositions from other persons and entities including but not limited to Jeffrey Grossman (a principal of appellee’s Baker Investment Corp. and Cedarbrook Associates); Toys-R-Us and Jamesway (other anchor stores at Cedarbrook Mall); and Equitable Life Assurance Society (the former legal owner of Cedarbrook Mall which, Channel argued, had committed to permanent financing of the project on the strength of Channel’s letter of intent commitment).

Upon reconsideration, the district court entered an order on May 7, 1985, affirming its March 26, 1985 judgment, with the proviso that Channel would be permitted to present additional evidence at another hearing if it made a request to do so within fifteen days of the date of the order. App. at 510a-515a. The district court stated that, despite the lack of notice and Channel’s averments to the contrary, “it was of the understanding that the parties had agreed to the consolidation.” App. at 514a.6 Channel did not request another evidentiary hearing. This appeal followed.

III.

Channel’s first argument on appeal is that the district court consolidated the motion for preliminary injunction with the trial on the merits without giving timely notice to the parties. Channel further argues that the district court’s post-judgment offer to permit the introduction of further evidence did not remedy its error. While we consider this to be a close question, and strongly disapprove of the procedure utilized by the district court, we cannot reverse on this issue.

It is generally inappropriate for the district court to grant final judgment on the merits at the preliminary-injunction stage. University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 1834, 68 L.Ed.2d 175 (1981); see 7 J. Moore, J. Lucas & K. Sinclair, Jr., Moore’s Federal Practice ¶ 65.04[4] (2d ed. 1986). However, in the event that an expedited decision on the merits is deemed necessary, Fed.R.Civ.P. 65(a)(2) permits the district court to combine a preliminary injunction hearing with a hearing on the merits provided that the parties “receive clear and unambiguous notice [of the court’s intent] to consolidate the trial and the hearing either before the hearing commences or at a time which will still afford the parties a full opportunity to *298present their respective cases.” Camenisch, 451 U.S. at 395, 101 S.Ct. at 1834 (citations omitted); see Fenstermacher v. Philadelphia National Bank, 493 F.2d 333 (3d Cir.1974); DeLeon v. Susquehanna Community School District, 747 F.2d 149, 152 n. 6 (3d Cir.1984).

The district court failed to give advance notice of the consolidation and therefore committed error. The court did, however, on reconsideration, give Channel the opportunity for a second hearing at which Channel could present additional evidence on the merits. Channel declined this invitation. At oral argument before this court, Channel explained that it had not seized the opportunity for a second hearing because the district court had not provided for the additional discovery, and Channel felt that the additional hearing would be meaningless without such discovery. The problem with this argument is that Channel did not raise it before the district court; Channel did not ask the court to grant it leave to take discovery or for additional time. Channel thus waived any argument concerning a technical defect under Fed.R. Civ.P. 65(a)(2). Fenstermacher, 493 F.2d at 336-37.

IV.

Channel’s second contention on appeal is that the district court erred in holding that the letter of intent was unenforceable and did not bind the parties to any obligation. Channel argues that the letter, coupled with the surrounding circumstances, constitutes a binding agreement to negotiate in good faith. Appellees rejoin that a promise to negotiate in good faith or to use best efforts to reduce to formal writing an agreement between the parties is enforceable only if the parties have in fact reached agreement on the underlying transaction. Because it is conceded that the letter of intent did not constitute a final agreement between the parties, appellees contend that it is merely evidence of preliminary negotiations and, as such, is unenforceable at law. Appellees further argue that even if the agreement were an otherwise enforceable contract, the letter of intent and any promises contained therein are unenforceable by virtue of Channel’s lack of consideration. The parties agree that Pennsylvania law applies to the case.

It is hornbook law that evidence of preliminary negotiations or an agreement to enter into a binding contract in the future does not alone constitute a contract. See Goldman v. McShain, 432 Pa. 61, 68, 247 A.2d 455, 458 (1968); Lombardo v. Gasparini Excavating Co., 385 Pa. 388, 392, 123 A.2d 663, 666 (1956); Kazanjian v. New England Petroleum Corp., 332 Pa. Super. 1, 7, 480 A.2d 1153, 1157 (1984); see Restatement (Second) of Contracts § 26 (1979). Appellees believe that this doctrine settles this case, but, in so arguing, appellees misconstrue Channel’s contract claim. Channel does not contend that the letter of intent is binding as a lease or an agreement to enter into a lease. Rather, it is Channel’s position that this document is enforceable as a mutually binding obligation to negotiate in good faith.7 By unilaterally terminating negotiations with Channel and precipitously entering into a lease agreement with Mr. Good Buys, Channel argues, Grossman acted in bad faith and breached his promise to “withdraw the Store from the rental market and only negotiate the above-described leasing transaction to completion.” See supra note 2.

Under Pennsylvania law, the test for enforceability of an agreement is whether both parties have manifested an intention to be bound by its terms and *299whether the terms are sufficiently definite to be specifically enforced. Lombardo v. Gasparini Excavating Co., 885 Pa. 388, 393, 123 A.2d 663, 666; Linnet v. Hitchcock, 324 Pa.Super. 209, 214, 471 A.2d 537, 540. Additionally, of course, there must be consideration on both sides. Stelmack v. Glen Alden Coal Co., 339 Pa. 410, 14 A.2d 127 (1940); Cardamone v. University of Pittsburgh, 253 Pa.Super. 65, 384 A.2d 1228 (1978). Consideration “confers a benefit upon the promisor or causes a detriment to the promisee and must be an act, forbearance or return promise bargained for and given in exchange for the original promise.” Curry v. Estate of Thompson, 332 Pa.Super. 364, 371, 481 A.2d 658, 661 (1984).

Although no Pennsylvania court has considered whether an agreement to negotiate in good faith may meet these conditions, the jurisdictions that have considered the issue have held that such an agreement, if otherwise meeting the requisites of a contract, is an enforceable contract. See, e.g., Thompson v. Liquichimica of America, Inc., 481 P.Supp. 365, 366 (E.D.N.Y.1979); (“Unlike an agreement to agree, which does not constitute a closed proposition, an agreement to use best efforts [or to negotiate in good faith] is a closed proposition, discrete and actionable.”); accord Repro-system, B.V. v. SCM Corp., 727 F.2d 257, 264 (2d Cir.1984); Chase v. Consolidated Foods Corp., 744 F.2d 566, 571 (7th Cir. 1984); Arnold Palmer Golf Co. v. Fuqua Industries Inc., 541 F.2d 584 (6th Cir.1976); Itek Corp. v. Chicago Aerial Industries, Inc., 248 A.2d 625 (Del.1968); Restatement (Second) of Contracts § 205 comment (c) (1979) (“Good faith in negotiation”); see generally Kessler and Fine, Culpa in Con-trahendo’, Bargaining in Good Faith, and Freedom of Contract; a Comparar tive Study, 77 Harv.L.Rev. 401 (1964).8 We are satisfied that Pennsylvania would follow this rule. Applying Pennsylvania law, then, we must ask (1) whether both parties manifested an intention to be bound by the agreement; (2) whether the terms of the agreement are sufficiently definite to be enforced; and (3) whether there was consideration.

In determining the parties’ intentions concerning the letter of intent, we must examine the entire document and the relevant circumstances surrounding its adoption. United Refining Co. v. Jenkins, 410 Pa. 126, 137, 189 A.2d 574, 580 (1963); Hillbrook Apartments, Inc. v. Nyce Crete Co., 237 Pa.Super. 565, 572, 352 A.2d 148, 151 (1975). The letter of intent, signed by both parties, provides that “[t]o induce the Tenant [Channel] to proceed with the leasing of the Store, you [Grossman] will withdraw the Store from the rental market, and only negotiate the above described leasing transaction to completion.” See supra note 2. The agreement thus contains an unequivocal promise by Grossman to withdraw the store from the rental market and to negotiate the proposed leasing transaction with Channel to completion.

Evidence of record supports the proposition that the parties intended this promise to be binding. After the letter of intent was executed, both Channel and the Gross-mans initiated procedures directed toward satisfaction of lease contingencies. Channel directed its parent corporation to prepare a draft lease; Channel planning representatives visited the lease premises to obtain measurements for architectural alterations, renovations, and related construction. Channel developed extensive marketing plans; delivery schedules were prepared and material and equipment deemed neces*300sary for the store were purchased. The Grossmans applied to the township zoning committee for permission to erect Channel signs at various locations on the mall property. Channel submitted a draft lease on January 11, 1985, and the parties, through correspondence and telephone conversations and on-site visits, exhibited an intent to move toward a lease as late as January 23, 1985. See discussion supra at 294-96. Accordingly, the letter of intent and the circumstances surrounding its adoption both support a finding that the parties intended to be bound by an agreement to negotiate in good faith.

We also believe that Grossman’s promise to “withdraw the Store from the rental market and only negotiate the above described leasing transaction to completion,” viewed in the context of the detailed letter of intent (which covers most significant lease terms, see supra n. 2), is sufficiently definite to be specifically enforced, provided that Channel submitted sufficient legal consideration in return.

Appellees argue that “[n]o money or thing of value was paid, either at the time of the letter or at any other time that would convert an agreement to negotiate into some enforceable type of contract.” Brief of Appellees at 16. We disagree. It seems clear that the execution and tender of the letter of intent by Channel was of substantial value to Frank Grossman. At the time the letter of intent was executed, Grossman was in the process of obtaining financing for his purchase of the mall. When it became apparent to Grossman that Channel — a major corporate tenant — was seriously interested in leasing the mall site, he requested that Channel sign a letter of intent which, as Grossman put it, could be shown to “other people, banks or whatever with a view to getting permanent financing.” App. at 366a-367a. Fully aware of Grossman’s desire to obtain financing, Channel sought to solidify its bargaining position by requesting that Grossman also sign the letter of intent and promise to “withdraw the store from the rental market and only negotiate the above-described leasing transaction to completion.” There being evidence that value passed from each party to the other, we conclude that the record would support a finding that Channel’s execution and tender of the letter of intent conferred a bargained for benefit on Grossman which was valid consideration for Grossman’s return promise to negotiate in good faith.

V.

In sum, we agree with Channel that the record contains evidence that supports a finding that the parties intended to enter into a binding agreement to negotiate in good faith. We further hold that the agreement had sufficient specificity to make it an enforceable contract if the parties so intended, and that consideration passed between the parties. We will therefore remand this case to the district court for trial.

At least two significant issues must be resolved at trial. First, although our review of the record reveals that there is sufficient evidence to support a finding that the parties intended to be bound by the letter of intent, we do not hold that the evidence requires this conclusion. At trial, evidence will presumably be brought to light that will aid the trier of fact in deciding this issue.9

*301As noted above, there is also some dispute over whether there was a time limit on the negotiations that was not specified in the letter of intent. Because the district court erroneously concluded that the letter of intent was unenforceable as a matter of law, it made no factual findings with regard to this critical term. If, as appellees suggest, Channel orally agreed to forward a draft lease within 30 days of the date on which the letter of intent was executed, Channel’s failure to do so could have terminated the agreement. Alternatively, if, as Channel argues, the parties did not fix a definite time for the duration of negotiations, then a reasonable time would be applicable. See Darlington v. General Electric Corp., 350 Pa.Super. 183, 192-93, 504 A.2d 306, 310-11 (1986), and a determination must be made as to what constitutes a reasonable time under all the circumstances.10

The judgment of the district court will therefore be reversed, and the case remanded for further proceedings consistent with this opinion.