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
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)).
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
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 ...