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December 6, 2005.

Daryl D and Amy E. Littlefield, Plaintiffs
Wells Fargo Home Mortgage, Inc., and GE Capital Mortgage Services, Inc., Defendants.

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. ยง 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 is granted.


  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 respectively.

  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 proceedings.

  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 ...

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