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ROWLAND v. HAVEN PROPERTIES

November 7, 2005.

KIMBERLY ROWLAND, Plaintiff,
v.
HAVEN PROPERTIES, LLC, BARRINGS MORTGAGE, INC., JEFF BRANDT, MARY NIEGO-MCNAMARA, QUINN NIEGO, JOE NIEGO, and BRIDGEVIEW BANK AND TRUST, TRUST #1-3050, Defendants.



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.

BACKGROUND

  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 IV);
• 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 (Count VII);
• 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 motion.

  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 ...


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