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JENKINS v. MERCANTILE MORTGAGE COMPANY
September 27, 2002
RICHANNER JENKINS, PLAINTIFF,
MERCANTILE MORTGAGE COMPANY; PROVIDENT BANK, DOING BUSINESS AS PCFS FINANCIAL SERVICES; EQUICREDIT CORPORATION OF AMERICA; VICTORIA MORTGAGE CORPORATION OF ILLINOIS; BELL CAPITAL, INC.; MIRA KOSTIC; CITY-SUBURBAN TITLE SERVICES COMPANY; FIELD'S WINDOWS, DOORS & CONSTRUCTION CORP., AND MIRJANA RADOJCIC, DEFENDANTS.
The opinion of the court was delivered by: Elaine E. Bucklo, United States District Judge
MEMORANDUM OPINION AND ORDER
Richanner Jenkins sues Mercantile Mortgage Company ("Mercantile");
Provident Bank, doing business as PCFS Financial Services ("PCFS");
Equicredit Corporation of America ("Equicredit"); Victoria Mortgage
Corporation of Illinois ("Victoria"); Bell Capital, Inc. ("Bell"), and
its agent Mira Kostic ("Kostic"); City-Suburban Title Services Company
("CST"); Field's Windows, Doors & Construction Corp. ("Field's"), and
its agent Mirjana Radojcic ("Radojcic"). Jenkins claims violations of the
Truth in Lending Act, 15 U.S.C. § 1601 et seq. ("TILA"), as amended
by the Home Ownership and Equity Protection Act ("HOEPA"); the Real
Estate Settlement Procedures Act, 12 U.S.C. § 2601 et seq.
("RESPA"); and Illinois law. Jenkins moves to certify a class action
against CST. PCFS and CST each move separately to dismiss the claims
against them under Fed. R. Civ. P. 12(b)(6). I deny Jenkins' motion to
certify a class action against CST. I grant in part and deny in part
PCFS' motion to dismiss the claims against it. I grant in part and deny
in part CST's motion to dismiss the claims against it.
Jenkins is a 65-year-old African-American woman who resides in a home
that she owns in Chicago. Am. Compl. ¶ 3. In November 1999, Jenkins
signed a contract for home improvements with Field's, Am. Compl. ¶
15, and retained Victoria as her mortgage broker, Am. Compl. ¶ 17.
On December 27, 1999, Jenkins obtained a $101,250 sub-prime fixed rate
mortgage loan from Mercantile, a mortgage broker and originator, for home
improvements ("the 1999 mortgage"). Am. Compl. ¶¶ 4, 18. CST
conducted the closing. Compl. ¶ 21. As part of the loan process,
Jenkins signed standard forms including a Truth in Lending Disclosure
statement, Ex. D, and a settlement statement on a HUD-1 form, Ex. E. Am.
Compl. ¶ 22-23. According to the HUD-1, CST collected $37.50 for
recording a mortgage and $55 for recording releases, which total $92.50.
Am. Compl. ¶ 25. According to the Truth in Lending Disclosure
statement, CST collected $116
for the mortgage recording and release
services, but it disbursed only $33.50 for recording a mortgage and
nothing for recording releases. Am. Compl. ¶ 26.
Prior to the closing, the loan was sold to PCFS and an assignment of
the mortgage was prepared on December 27, 1999. Am. Comp. ¶ 27. The
loan documents sent to PCFS pursuant to the assignment, including the
Truth in Lending Disclosure Statement and HUD-1, were materially
different from the original loan documents. Am. Compl. ¶¶ 28-31.
Jenkins claims that Victoria received an illegal $759.37 "yield spread
premium" in violation of RESPA. Am. Compl. ¶ 74. Jenkins also alleges
that the 1999 mortgage violated TILA because it failed to make mandatory
disclosures regarding interest and payments, Am. Compl. ¶ 38, and
because it did not expressly exclude a prepayment penalty for refinancing
by the same creditor, Am. Compl. ¶ 40.
Field's then approached Jenkins and convinced her that more money was
required to complete the contracted work. Am. Compl. ¶ 44. On June
8, 2000, Jenkins obtained a $134,400 mortgage from Mercantile ("the 2000
mortgage"). Am. Compl. ¶¶ 45-48. The 2000 mortgage was used to pay
off the 1999 mortgage. Am. Compl. ¶ 48. Jenkins alleges that the
note for the 2000 mortgage included an unlawful prepayment penalty in
violation of TILA regarding the 1999 mortgage. Am. Compl. ¶ 51.
The work that Field's contracted to perform was never completed. Am.
Compl. ¶ 42. Jenkins alleges that Field's pocketed more than $70,000
after completing approximately $19,000 of work which will cost $17,000 to
complete. Am. Compl. ¶ 42.
Jenkins moves to certify a class of all persons from whom CST collected
money for disbursement to governmental agencies that was not in fact so
disbursed on or after November 29, 1998 (Count V), November 29, 1996
(Count VI), or November 29, 2000 (Count VII).*fn1 A class action must
satisfy all the requirements of Fed. R. Civ. P. 23(a) and at least. one
of the requirements of Rule 23(b). Burke v. Local 710 Pension Fund, No.
98 C 3723, 2000 WL 336518, at *2 (N.D. Ill. Mar. 28, 2000) (Hibbler,
J.). There are four Rule 23(a) requirements: (1) numerosity (the class
must be so large "that joinder of all members is impracticable"); (2)
commonality (there must exist "questions of law or fact common to the
class"); (3) typicality (named parties' claims or defenses must be
"typical . . . of the class"); and (4) adequacy of representation (the
representative must be able to "fairly and adequately protect the
interests of the class"). Amchem Prods., Inc. v. Windsor, 521 U.S. 591,
613 (1997). Each of these prerequisites must be met in order to maintain
a class action suit. General Tel. Co. v. Falcon, 457 U.S. 147, 161
(1982). The party seeking class certification bears the burden of
demonstrating that certification is appropriate. Retired Chicago Police
Ass'n v. City of Chicago, 7 F.3d 584, 596 (7th Cir. 1993). I generally
should "consider certifying a class or deny certification prior to any
ruling on the merits." Mira v. Nuclear Measurements Corp., 107 F.3d 466,
474 (7th Cir. 1997).
I may rely on common sense assumptions or reasonable inferences in
determining numerosity. Ringswald v. County of DuPage, 196 F.R.D. 509,
512 (N.D. Ill. 2000) (Bucklo, J.). A plaintiff must "provide some
evidence or reasonable estimate of the number of class members.,
however, if the plaintiff is unable to provide the exact numbers, a good
faith effort is sufficient to establish the number of class members."
Burke, 2000 WL 336518, at *2 (citing Long v. Thornton Township High Sch.
Dist. 205, 82 F.R.D. 186, 189 (N.D. Ill. 1979)). The plaintiff's good
faith estimate must be more than mere speculation. Marcial v. Coronet
Ins. Co., 880 F.2d 954, 957 (7th Cir. 1989); Burke, 2000 WL 336518, at
Jenkins argues that CST is a business of substantial size that uses
printed form documents to engage in the practice of retaining funds for
government distribution, and that this use of forms allows me to infer
the existence of a sufficiently large class of plaintiffs. See Swiggett
v. Watson, 441 F. Supp. 254, 256 (D. Del. 1977) (establishing numerosity
in a case challenging the constitutionality of a state vehicle title
transfer statute on the basis of the state's use of printed forms to
facilitate the transfers). However, the Swiggett plaintiff challenged the
constitutionality of a law authorizing the use of a form, thereby
effectively challenging every instance a printed form was used to
complete a transfer. Jenkins, on the other hand, argues that because
CST, in a single instance, used a printed form to collect funds from her
and then improperly retained those funds, and because it used the same
form with other customers, a sufficient number of plaintiffs in her
proposed class must exist. She does not challenge the form itself; unlike
Swiggett, there is no necessary connection between the use of a form and
Jenkins' argument amounts to a conclusory allegation that, because she
was harmed and CST had many other customers, other class members must
exist. "Such speculation cannot support class certification." Burke, 2000
WL 336518, at *2 (internal quotation marks omitted); see also Roe v. Town
of Highland, 909 F.2d 1097, 1100 (7th Cir. 1990). Furthermore, Jenkins
cannot satisfy the numerosity requirement without showing that other
persons besides herself, whether identifiable or not, are similarly
situated. Burke, 2000 WL 336518, at *2 (holding that "membership in a
class [will not be presumed] on the mere theoretical possibility that
such members exist"). Because there is insufficient evidence of
numerosity, I need not consider the other requirements of Rule 23.*fn2
III. PCFS' Motion to Dismiss
Jenkins' amended complaint names PCFS as a defendant in three counts,
which PCFS moves to dismiss. On a motion to dismiss, I accept all
well-pleaded allegations in the complaint as true and draw all reasonable
inferences in favor of the plaintiff. City Nat'l Bank of Fla. v.
Checkers, Simon & Rosner, 32 F.3d 277, 281 (7th Cir. 1994). Dismissal
is proper only where it appears beyond doubt that the plaintiff can prove
no set of facts in support of her claims that would entitle her to
relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). A plaintiff need not
put all of the essential facts in the complaint and may add them by
affidavit or brief "in order to defeat a motion to dismiss if these facts
are consistent with the allegations in the complaint." Hentosh v. Herman
M. Finch Univ., 167 F.3d 1170, 1173 (7th Cir. 1999). Additionally,
documents attached to the pleadings as exhibits are considered part of
the pleadings. Fed. R. Civ. P. 10(c).
In Count I, Jenkins alleges four separate violations of TILA.*fn3
First, she alleges that the 1999 mortgage improperly calculated points
and fees which unlawfully placed the mortgage outside of TILA
protection. Second, she alleges the 1999 mortgage tailed to disclose a
balloon payment as required by TILA and its implementing regulation,
12 C.F.R. § 226 ("Regulation Z"). Third, she alleges that the 1999
mortgage violated TILA as amended by HOEPA by not explicitly excluding a
prepayment penalty for ...