The opinion of the court was delivered by: SUZANNE CONLON, District Judge
MEMORANDUM OPINION AND ORDER
Kimberly Rowland brings a ten-count complaint against Haven
Properties, LLC, Barrings Mortgage, Inc., Jeff Brandt, Mary
Niego-McNamara, Quinn Niego, Joe Niego, and Bridgeview Bank and
Trust, Trust #1-3050 (collectively "defendants"), alleging
various violations of federal and state laws pertaining to the
sale of her home. In a joint motion, Bridgeview Bank moves to
dismiss Counts IV through IX of the complaint, and Joe Niego
moves to dismiss Counts I through IX. For the reasons set forth
below, the motion is granted in part.
The complaint tells a sad story of a widow who was allegedly
tricked into selling her home to predatory mortgage brokers. Of
course, the allegations are yet to be proven. But for purposes of
this motion, the court accepts all well-pleaded allegations as
true and draws all reasonable inferences in Rowland's favor. See Cler v. Ill. Educ. Ass'n, 423 F.3d 726,
729 (7th Cir. 2005) (citing Gen. Elec. Capital Corp. v. Lease
Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997)).
After the death of her husband, Rowland fell behind in mortgage
payments for her home located at 6430 South Knox Avenue, Chicago,
Illinois. Compl. ¶¶ 1, 6-7. In July 2004, she faced foreclosure
proceedings. Compl. ¶ 7. On February 23, 2005, a judgment of
foreclosure was entered and a foreclosure sale was scheduled.
Compl. ¶ 8. Meanwhile, Rowland began receiving solicitations
promising to help save her home. Compl. ¶ 9.
On February 8, she received a letter signed by Quinn Niego of
Barrings Mortgage. Compl. ¶ 10. Joe Niego was the president and
secretary of Barrings Mortgage. Compl. ¶ 13. In the letter, Quinn
Niego stated that he could "quickly refinanc[e] homes out of
foreclosure." Compl. ¶ 14. Quinn Niego assured Rowland that
unlike a "typical mortgage broker," he would not string her along
or ignore her phone calls. Id. The next day, Rowland met with
Quinn Niego at the offices of Niego Realty. Compl. ¶ 16. At the
meeting, Quinn Niego told Rowland he would help her refinance her
mortgage if it was not too late, and that he would call her the
following day. Id. But Quinn Niego did not call, nor did he
return Rowland's calls. Id. On February 10, Rowland received a
hand-delivered letter signed by Jeff Brandt of Haven Properties
stating that he could help stop her foreclosure. Compl. ¶ 17.
Rowland telephoned Brandt that same day. Compl. ¶ 18. On February
11, she met with Brandt at his office. Compl. ¶ 19. At the time,
she did not realize that his office was upstairs from Niego
Realty, although Brandt told her he had worked with Quinn Niego
before. Compl. ¶¶ 18-19. Brandt told her that Quinn Niego would
not be able to act in time to refinance her home. Compl. ¶ 19.
Rowland started crying. Id. Brandt assured her that he would
help save her home. Id. Over the next several days, Brandt visited Rowland's home,
conducted a walk-through inspection, and sent over a surveyor and
an appraiser. Compl. ¶ 21. On February 15, at Brandt's request,
Rowland went to his office to sign paperwork. Compl. ¶ 23. Brandt
indicated that he would pay off Rowland's existing mortgage and
her car loans. Id. Rowland would be required to give Brandt
monthly payments of $1,300 for one year. Id. At the end of the
year, Rowland would pay Brandt $99,000, or she could obtain
refinancing through Quinn Niego. Id. Rowland was not given any
loan documents nor was she informed of the repayment terms. Id.
Brandt presented Rowland with a form giving him her power of
attorney so that he could request the payoff amounts from her
mortgage and car loan lenders. Compl. ¶ 24. Rowland was not given
a copy of the executed form. Id. Brandt also asked her to sign
other documents; Rowland did not know what the documents were,
nor did she receive copies of them. Compl. ¶ 25. Rowland was not
represented by counsel. Compl. ¶ 26. Brandt told her an attorney
was unnecessary because the transaction involved a small amount
of money and because she was retaining her home. Id.
Upon Brandt's request, Rowland met with him in a room below his
office and in the back of Niego Realty's offices on February 17.
Compl. ¶ 28. Brandt presented her with a U.S. Department of
Housing and Urban Development settlement statement, which
reflected: (1) a contract sales price/gross price of $91,500.00
due to seller; (2) that $78,593.61 would be paid to her mortgage
company; and (3) that $6,751.43 would be paid to her car loan
company. Compl. ¶¶ 28-29. "Bridgeview Bank and Trust, Trust
#1-3050" was named as "borrower" in the statement. Compl. ¶ 34.
Niego-McNamara was listed as the individual who received "Buyer's
Attorney Fees." Compl. ¶ 31. Rowland asked whether she would
receive any money in cash, since this was a refinanced loan.
Compl. ¶ 28. Brandt adjusted the settlement statement amounts,
presented Rowland with a $3,000 check, and told her she would be required
to pay him an extra $50 per month. Compl. ¶ 28. Rowland signed
the settlement statement in reliance on Brandt's representation
that the transaction would provide her with a home equity loan.
Compl. ¶ 30.
After Brandt left, an unknown man came into the room and
presented Rowland with additional documents to sign. Compl. ¶ 35.
She did not understand why more documents were necessary. Id.
She signed a Chicago apartment lease with a one year term and a
$1,350 monthly rent. Id. The man also had her sign a rider to
the lease. Id.
At no time did Rowland intend to sell her home. Compl. ¶ 30.
Rather, she understood she was receiving a loan on her home from
Brandt. Id. But after signing all the documents, she
effectively sold her home, which was valued at $245,000, for a
$91,500 loan. Compl. ¶ 41. As a result, she became a tenant of
6430 South Knox Avenue, owned by Haven Properties.
Rowland filed this lawsuit seeking to void the home sale and to
recover damages. She claims she was under a great deal of stress
from the prospect of foreclosure. Compl. ¶ 38. She alleges
defendants conspired to exacerbate her distress to take advantage
of her and to fraudulently obtain ownership of her home. Compl.
¶¶ 39-40. Rowland advances the following ten claims:
declaratory judgment that the purported sale was an
equitable mortgage (Count I);
preliminary and permanent injunctive relief to stay
prosecution of any foreclosure action (Count II);
constructive trust (Count III);
intentional infliction of emotional distress (Count
rescission of contract due to duress, fraud, or
unconscionability (Count V);
Truth in Lending Act and Home Ownership and Equity
Protection Act (Count VI);
Illinois Consumer Fraud and Deceptive Business Act
Illinois High Risk Home Loan Act (Count VIII);
common law fraud (Count IX); and
Racketeer Influenced and Corrupt Organizations Act
("RICO") (Count X). DISCUSSION
I. Motion to Dismiss Standard
"A motion to dismiss under Rule 12(b)(6) challenges the
sufficiency of the complaint, and dismissal of an action under
the rule is warranted only if `no relief could be granted under
any set of facts that could be proved consistent with the
allegations.'" Cler, 423 F.3d at 729 (quoting DeWalt v.
Carter, 224 F.3d 607, 612 (7th Cir. 2000)). To survive a motion
to dismiss, a complaint "need not plead particular legal theories
or particular facts in order to state a claim." DeWalt,
224 F.3d at 612. "All that is required is `a short and plain
statement . . . that will give the defendant fair notice'" of the
nature and basis of the claim. Id. (quoting Leatherman v.
Tarrant County Narcotics Intelligence & Coordination Unit,
507 U.S. 163, 168 (1993)).
Rowland argues this motion is procedurally improper because the
court has denied Haven Properties' motion to dismiss. But
Bridgeview Bank and Joe Niego are entitled to move to dismiss in
their own right. See Fed.R.Civ.P. 12. Therefore, Rowland's
argument is incorrect. The court now turns to the merits of this
II. Claims Against Bridgeview Bank
Moving to dismiss Counts IV through IX, Bridgeview Bank
advances three arguments: (1) as trustee of 6430 South Knox
Avenue, Bridgeview Bank is not a proper party to this lawsuit;
(2) Rowland fails to allege any wrongdoing on its part; and (3)
she fails to plead fraud with sufficient particularity ...