Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
ILLINOIS ASS'N OF MORTG. BROKERS. v. BANKS & REAL ESTATE
December 4, 2001
ILLINOIS ASSOCIATION OF MORTGAGE BROKERS, AN ILLINOIS NOT-FOR-PROFIT CORPORATION, PLAINTIFF,
OFFICE OF BANKS AND REAL ESTATE, AN ILLINOIS STATE AGENCY, WILLIAM A. DARR, NOT PERSONALLY BUT IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE OFFICE OF BANKS AND REAL ESTATE, DEFENDANTS.
The opinion of the court was delivered by: Norgle, District Judge.
Before the court is Defendant's motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(1) for want of subject
matter jurisdiction, and Defendant's motion to dismiss pursuant
to Rule 12(b)(6) for failure to state a claim or, in the
alternative for summary judgment pursuant to Rule 56. For the
following reasons, Defendant's 12(b)(1) motion is denied,
Defendant's motion for summary judgment pursuant to Rule 56 is
On May 17, 2001, Defendant, the Office of Banks and Real
Estate an Illinois State Agency, amended its regulations ("new
OBRE regulations"), which now impose stricter terms on lenders
regarding the origination of high risk home loans, in an attempt
to limit predatory lending. Ill.Admin.Code tit. 38, §
1050.155(a). Plaintiff, the Illinois Association of Mortgage
Brokers, claims the new OBRE regulations run contrary to a
previously enacted federal statute, specifically the Alternative
Mortgage Transaction Parity Act of 1982, Pub.L. No. 97-320, 96
Stat. 1469 (1982) ("AMTPA"). Plaintiff claims that AMTPA
preempts the new OBRE regulations making the new OBRE
regulations invalid. Plaintiff seeks to obtain a preliminary
injunction of the new OBRE regulations, enjoining their
enforcement. Defendant claims that even if Plaintiffs assertions
have merit, Plaintiff is not the appropriate party to bring
suit. The question of whether Plaintiff has standing to invoke
federal subject matter jurisdiction in this case is the only
disputed fact. All other claims are based on interpretation of
the new OBRE regulations and federal statutes. Defendant claims
that the new OBRE regulations are not pre-empted by AMTPA, but
are consistent with the Home Ownership and Equity Protection Act
of 1994, Pub.L. No. 103-325, 108 Stat. 2160 (1994) ("HOEPA").
The court addresses each point in turn.
The first issue the court addresses is standing. Defendant
Plaintiff does not have proper standing to satisfy subject
matter jurisdiction, and moves to dismiss the case accordingly
under Rule 12(b)(1). For the purposes of a 12(b)(1) motion, the
court accepts all well-pleaded allegations in the complaint as
true and draws all reasonable inferences in favor of the
plaintiff. Martin v. Shalala, 63 F.3d 497, 501 (7th Cir.
1995); Rueth v. United States Environmental Protection Agency,
13 F.3d 227, 227 (7th Cir. 1993). The court, when determining
the validity of a motion to dismiss, may properly look beyond
the jurisdictional allegations of the complaint and view all the
evidence that has been submitted to determine if subject matter
jurisdiction exists. Ezekiel v. Michel, 66 F.3d 894, 897 (7th
Cir. 1995). When the party moving for dismissal under 12(b)(1)
challenges the factual basis for jurisdiction, the non-moving
party has the obligation to submit evidence demonstrating
subject matter jurisdiction. Kontos v. United States Dept. of
Labor, 826 F.2d 573, 576 (7th Cir. 1987).
Plaintiff, an association, must clear two hurdles in order to
show that it has proper standing to invoke federal subject
matter jurisdiction. First, Plaintiff must show that there is a
case or controversy within the meaning of Article III. Krislov
v. Rednour, 226 F.3d 851, 856 (7th Cir. 2000). Second,
Plaintiff must show that it has associational standing to bring
this claim for relief. Plotkin v. Ryan, 239 F.3d 882, 884 (7th
Cir. 2001) Without standing, the court has no subject matter
jurisdiction over the matter as prescribed by Article III of the
Constitution. Standing is a question of federal law, and it
falls to the party asserting jurisdiction to establish the right
to judicial review. See Lujan v. Defenders of Wildlife,
504 U.S. 555, 561-62, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); 691, 7
L.Ed.2d 663 (1962); Indemnified Capital Investments, S.A. v.
R.J. O'Brien & Assoc., Inc., 12 F.3d 1406, 1408-09 (7th Cir.
Plaintiff, through affidavit, has successfully demonstrated
that not only is there proper standing to invoke federal subject
matter jurisdiction, but also that this particular association
is the proper association to assert those claims.
To establish Article III standing Plaintiff must demonstrate:
(1) imminent or actual "injury in fact," that is, an "invasion
of a legally protected interest" that is concrete and
particularized rather than conjectural or hypothetical,
Defenders of Wildlife, 504 U.S. at 560-61, 112 S.Ct. 2130; (2)
a causal connection between its injury and the challenged
conduct that is fairly traceable to Defendant rather than to the
"independent action of some third party not before the court,"
Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 4142,
96 S.Ct. 1917, 48 L.Ed.2d 450 (1976); and (3) the likelihood
that its injury will be redressed by a favorable court decision,
see, e.g., id. at 42-46, 96 S.Ct. 1917; Allen v. Wright,
468 U.S. 737, 753 n. 19, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984).
2. Associational Standing
To establish associational standing Plaintiff must demonstrate
that: (1) its members would otherwise have standing to sue in
their own right, Friends of the Earth Inc. v. Laidlaw
Environmental Services, 528 U.S. 167, 180-81, 120 S.Ct. 693,
145 L.Ed.2d 610 (2000) (citing Hunt v. Washington State Apple
Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53
L.Ed.2d 383 (1977)); (2) the interests at stake are germane to
the organization's purpose, id.; and (3) ...