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TAMMERELLO v. AMERIQUEST MORTGAGE COMPANY

June 2, 2005.

GAVIONE TAMMERELLO, Plaintiff,
v.
AMERIQUEST MORTGAGE COMPANY, a foreign corporation, and GREEN TREE SERVICING, LLC, a foreign corporation, Defendants.



The opinion of the court was delivered by: DAVID COAR, District Judge

MEMORANDUM OPINION AND ORDER

Before this court are two separate motions to dismiss Plaintiff Gavione Tammarello's 15count complain pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, the motion filed by Defendant Ameriquest Mortgage Company ("Ameriquest") is GRANTED with respect to Counts XI, XIV, and XV and DENIED with respect to Counts IX, X, XII, and XIII. The motion to dismiss Counts I-VIII filed by filed by Defendant Green Tree Servicing, LLC ("Green Tree") is GRANTED in its entirety.

FACTUAL AND PROCEDURAL BACKGROUND*fn1

  Plaintiff filed a 15-count complaint against Defendants in the Circuit Court of Cook County on December 22, 2004. Defendants filed a notice of removal to federal court on January 26, 2005. Defendants then filed separate motions to dismiss on March 31, 2005.

  Plaintiff's complaint alleges, in essence, that Ameriquest engaged in unlawful conduct when it refinanced his mortgage at a much higher refinancing rate than it promised him and that Green Tree engaged in unlawful conduct when it extended Plaintiff a home equity loan that was for a much higher amount at a much higher interest rate than what he was originally promised.*fn2 Both Defendants, according to Plaintiff, failed to disclose key pieces of information throughout the financing process. They also rushed him through the closing, did not provide any explanation of the documents he was supposed to sign, and failed to provide him with a copy of all the documents after closing.

  Plaintiff discovered the unlawful conduct after he forwarded notices he received regarding the loans to Defendants and Defendants' attorneys completed an investigation. The notices stated that his loans were in default, that the escrow account he set up using the Ameriquest loan to pay his property taxes was in the negative, and that his property taxes had been sold at tax sales.*fn3

  Plaintiff did not file any response to Defendants' motions to dismiss. Given that the deadline for filing a response was April 28, 2005 and Plaintiff did not file a response or request additional time to file a response, this Court determined the motions based on the record before it.*fn4

  STANDARD OF REVIEW

  Under Federal Rule of Civil Procedure 8(a), a complaint generally need only set forth a short and plain statement of the claim showing that the pleader is entitled to relief. Leatherman v. Tarrant County Narcotics Unit, 507 U.S. 163, 168 (1993). In ruling on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court "must accept all well pleaded allegations as true. In addition, the Court must view these allegations in the light most favorable to the plaintiff." Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1039 (7th Cir. 1987). "The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to decide the merits." Triad Assocs., Inc. v. Chicago Hous. Auth., 892 F.2d 583, 586 (7th Cir. 1989). A party's claim should only be dismissed if it is clear that no set of facts in support of the claim would entitle the party to relief. Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir. 1997) (quoting Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984)).

  ANALYSIS

  As a preliminary matter, Plaintiff's complaint as it relates to Defendant Green Tree (Counts I-VIII) is DISMISSED in its entirety. Based on bankruptcy court documents, it appears that Green Tree purchased the rights to servicing Plaintiff's loan free from any liability and therefore is not a proper defendant in this case. See In re: Conseco, Inc. et al., No. 02 B 49672 (Bankr. N.D. Ill.) (Doyle, J.) (Op. March 14, 2003).

  As for Ameriquest, it is a proper defendant for the remaining counts of the complaint (Counts IX-XV). Ameriquest begins its motion to dismiss by arguing that "almost all of these causes of action" are "barred by their respective statutes of limitations."*fn5

  The Seventh Circuit has noted that as a "basic rule" the statute of limitations is an affirmative defense and therefore need not be addressed in the complaint. See Barry Aviation Inc. v. Land O'Lakes Municipal Airport Com'n, 377 F.3d 682, 688 (7th Cir. 2004) (citing U.S. Gypsum Co. v. Indiana Gas Co., Inc., 350 F.3d 623, 626 (7th Cir. 2003)); see also United States v. N. Trust Co., 372 F.3d 886, 888 (7th Cir. 2004). Consequently, "[c]omplaints need not anticipate defenses; the resolution of the statute of limitations comes after the complaint stage." Id. (citations omitted).

  In Reiser v. Residential Funding Corp., for example, the plaintiffs claimed that a lender violated TILA, RESPA, and the Illinois Interest Act and filed suit against a defendant that eventually purchased the plaintiffs' notes. See Reiser v. Residential Funding Corp., 380 F.3d 1027, 1030 (7th Cir. 2004) (citations omitted). The defendant claimed that the federal laws claims were untimely under the one-year statute of limitations period contained in both the TILA and the RESPA. The district court refused relief on that basis, concluding that the plaintiffs could show that the defendant's acts justified either equitable tolling or equitable estoppel. The Seventh Circuit agreed, and ...


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