The opinion of the court was delivered by: JOHN GORMAN, Magistrate Judge
The parties have consented to have this case heard to judgment
by a United States Magistrate Judge pursuant to
28 U.S.C. § 636(c), and the District Judge has referred the case to me. Now
before the court are: Defendant Wells Fargo Home Mortgage, Inc.'s
Motion to Dismiss Counts I and II (Doc. #143) and Defendant GE
Capital Mortgage Services Inc.'s Motion to Dismiss Count III
(#141). The motions are fully briefed and I have carefully
considered the arguments of all parties. The Wells Fargo Motion
is granted in part and denied in part and the GE Capital motion
MOTIONS TO DISMISS GENERALLY
A complaint should not be dismissed unless it appears from the
pleadings that the plaintiff could prove no set of facts in
support of his claim which would entitle him to relief. Conley
v. Gibson, 355 U.S. 41 (1957); Gould v. Artisoft, Inc.,
1 F.3d 544, 548 (7th Cir. 1993). Rather, it should be construed broadly
and liberally in conformity with the mandate in Rule 8(f).
For purposes of a motion to dismiss, the complaint is construed
in the light most favorable to the plaintiff; its well-pleaded
factual allegations are taken as true, and all reasonably-drawn inferences are drawn in favor of the plaintiff.
Albright v. Oliver, 510 U.S. 266, 268 (1994); Hishon v. King &
Spalding, 467 U.S. 69 (1984); Scheuer v. Rhodes, 416 U.S. 232
(1974); Lanigan v. Village of East Hazel Crest, 110 F.3d 467
(7th Cir. 1997); MCM Partners, Inc. v. Andrews-Bartlett &
Assoc., Inc., 62 F.3d 967, 969 (7th Cir. 1995); Early v.
Bankers Life & Cas. Co., 959 F.2d 75 (7th Cir. 1992).
The Seventh Circuit has emphasized the "limited analysis
appropriate on a motion to dismiss under Rule 12(b)(6)." Cook v.
Winfrey, 141 F.3d 322 (7th Cir. 1998). General allegations of
elements of a claim, unsupported by factual allegations in
support, are sufficient to satisfy the "minimal requirements of
federal notice pleading." Id. at 328. This is true even in
pleading a state-law claim arising under Illinois law, which
requires much-more demanding fact-pleading. Id. A plaintiff may
satisfy this requirement by pleading either enough operative
facts or conclusions so that the defendant is given minimal
notice of the claim and the court can understand that gravamen of
the complaint. Kyle v. Morton High School, 144 F.3d 448, 454
(7th Cir. 1998). A motion to dismiss is not an occasion to argue
the merits of a case. Weiler v. Household Finance Corp,
101 F.3d 519, 524 n. 1 (7th Cir. 1996).
If the plaintiff's claim as plead is "without legal
consequence," dismissal is proper; Grzan v. Charter Hospital,
104 F.3d 116, 119 (7th Cir. 1997). One of the purposes of Rule
12(b)(6) is to eliminate actions that are fatally flawed in their
legal premises and are destined to fail, thus sparing litigants
the burdens of unnecessary pretrial and trial activity. Advanced
Cardiovascular Systems, Inc. v. Scimed Life, 988 F.2d 1157, 1160
(Fed. Cir. 1993). PLEADINGS AND PROCEDURAL POSTURE
This case was stayed on August 6, 2004, pending the Seventh
Circuit's decision in Parks v. Wells Fargo Home Mortage Inc.
That decision was rendered on Feb. 23, 2005. See, Parks v. Wells
Fargo Home Mortage Inc., 398 F.3d 937 (7th Cir. 2005). The stay
was lifted following the Seventh Circuit's decision, and the
Plaintiffs filed their Fourth Amended Complaint. The instant
motions to dismiss followed.
The Fourth Amended Complaint (Doc. #139) consists of four
counts. Counts I and IV allege breach of contract claims against
Wells Fargo and GE Capital Mortgage Services LLC (formerly known
as GE Capital Mortgage Services Inc.) (hereinafter referred to as
GE Capital) respectively. Counts II and III allege breach of
fiduciary duty claims against Wells Fargo and GE Capital
Wells Fargo has filed its motion to dismiss challenging both
counts against it. GE Capital's motion challenges only Count III;
an answer has been filed to Count IV.
The following facts were presented to the court in an earlier
summary judgment motion and were recited by the court in its
Order on that motion. See Order dated January 13, 2004. Not all
of these facts have been specifically alleged in the Fourth
Amended Complaint but the Court considers that these facts are
part of the record and are cognizable at this stage of the
On January 31, 1995, Daryl and Amy Littlefield purchased
residential property in Peoria, Illinois. This property included
five lots, numbered 15 through 19. Ownership of lots 15 through
18 was transferred by warranty deed, lot 19 by quit claim deed.
Together, the property was commonly known as 2010 East Paris Avenue,
Peoria, Illinois. In order to acquire this property, Plaintiffs
obtained a loan from Wells Fargo Home Mortgage Inc.*fn1 The
loan was secured by a mortgage ("Mortgage") on lots 15 through
18. The mortgage documents and the deeds to both parcels of
property showed that the taxes should be sent to Wells Fargo.
The Littlefields' Mortgage was documented on a form developed
by the Federal National Mortgage Association ("Fannie Mae") and
the Federal Home Loan Mortgage Corporation ("Freddie Mac") and it
is commonly referred to as an FNMA/FHLMC Uniform Instrument. Both
the Uniform Instrument and the Plaintiffs' Mortgage require that
mortgage borrowers pay monthly amounts for taxes, and that this
monthly amount may obtain priority over the Mortgage itself. Both
the Uniform Instrument and the Plaintiffs' Mortgage also include
the following provision:
There . . . may be one or more changes of the Loan
Servicer unrelated to a sale of the Note. If there is
a change of the Loan Servicer, Borrower will be given
written notice of the change in accordance with . . .
applicable law. The notice will state the name and