United States District Court, N.D. Illinois, Eastern Division
December 16, 2005.
EUGENE GRAHAM, Plaintiff,
MIDLAND MORTGAGE COMPANY, CHASE MANHATTAN MORTGAGE CORP., and JP MORGAN CHASE & CO. Defendants.
The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant Midland Mortgage
Co.'s ("Midland") motion to dismiss, and Defendants Chase
Manhattan Mortgage Corp.'s and JP Morgan Chase & Co.'s motion to
dismiss. For the reasons stated below, we grant both of
Defendants' motions to dismiss in their entirety.
Plaintiff Eugene Graham ("Graham") alleges that he purchased
residential property in the city of Chicago from Easy Life
Realty. In June 1995, Graham allegedly entered into a loan
agreement with Defendant Chase Manhattan Mortgage Corp. ("Chase"), for an amount of $124,898. Graham claims this
loan agreement was insured by the Federal Housing Administration.
According to Graham, the property was not properly renovated when
he purchased the property, and therefore Graham was unable to use
part of the building to generate rental income as he had
In June 2001, the Department of Housing and Urban Development
("HUD") allegedly stated in a letter to Graham that Graham's
mortgage was overvalued due to the improper renovations, and that
Graham had been "disadvantaged by this improper mortgage, leading
to [his] delinquency and eventual default." (Compl. Ex. C). In
this same letter, HUD stated that they had "requested [Graham's]
servicing lender to accurately represent the cause of delinquency
and default as required by the Fair Credit Reporting Act (FCRA),
15 U.S.C. § 1681 et seq." (Compl. Ex. C). In May 2003, Graham
claims that he executed a deed-in-lieu of foreclosure, in which
the loan balance was to be resolved in exchange for a $5,000
payment to Graham.
In February 2005, Graham filed the instant action in this
court. The complaint includes a fraud, intentional
misrepresentation, and predatory lending claim, an unjust
enrichment claim, a negligence and breach of fiduciary duties
claim, an unconscionability claim, and an estoppel claim.
Defendants are now moving to dismiss all claims. LEGAL STANDARD
In ruling on a motion to dismiss brought pursuant to Federal
Rule of Civil Procedure 12(b)(6), the court must draw all
reasonable inferences that favor the plaintiff, construe the
allegations of the complaint in the light most favorable to the
plaintiff, and accept as true all well-pleaded facts and
allegations in the complaint. Thompson v. Illinois Dep't of
Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002); Perkins
v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). The
allegations in a complaint should not be dismissed for a failure
to state a claim "unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief." Conley v. Gibson, 355 U.S. 41,
45-46 (1957); see also Baker v. Kingsley, 387 F.3d 649, 664
(7th Cir. 2004) (stating that although the "plaintiffs'
allegations provide little detail [the court could not] say at
[that] early stage in the litigation that plaintiffs [could]
prove no set of facts in support of their claim that would
entitle them to relief"). Nonetheless, in order to withstand a
motion to dismiss, a complaint must allege the "operative facts"
upon which each claim is based. Kyle v. Morton High School,
144 F.3d 448, 454-55 (7th Cir. 1998); Lucien v. Preiner,
967 F.2d 1166, 1168 (7th Cir. 1992). Under the current notice pleading
standard in federal courts a plaintiff need not "plead facts
that, if true, establish each element of a `cause of
action. . . .'" Sanjuan v. American Bd. of Psychiatry and
Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994) (stating
also that "[a]t this stage the plaintiff receives the benefit of
imagination, so long as the hypotheses are consistent with the complaint" and that
"[m]atching facts against legal elements comes later"). The
plaintiff need not allege all of the facts involved in the claim
and can plead conclusions. Higgs v. Carter, 286 F.3d 437, 439
(7th Cir. 2002); Kyle, 144 F.3d at 455. However, any
conclusions pled must "provide the defendant with at least
minimal notice of the claim," Id., and the plaintiff cannot
satisfy federal pleading requirements merely "by attaching bare
legal conclusions to narrated facts which fail to outline the
bases of [his] claims." Perkins, 939 F.2d at 466-67. The
Seventh Circuit has explained that "[o]ne pleads a `claim for
relief' by briefly describing the events." Sanjuan,
40 F.3d at 251.
1. Fraud, Intentional Misrepresentation, and Predatory Lending
Graham's first unnumbered claim alleges "fraud, intentional
misrepresentation and predatory lending." (Compl. 6).
Specifically, Graham alleges that "Defendants are well aware of
Easy Life's illegal, immoral, and deceptive practices" and that
"Defendants are well aware that Graham's mortgage loan is
significantly overvalued." (Compl. 6). Graham also alleges that
"Defendants' failure to rework Graham's loan amount and loan
terms in light of the Easy Life Scam amounts to fraudulent
practices by Defendants. . . ." (Compl. 6). Defendants argue that
there is no statutory cause of action for predatory lending and,
thus, Graham must be alleging a claim of common law fraud or
fraudulent misrepresentation. (M's Mot. 3) (C's Mot. 6).
Under the Federal Rules of Civil Procedure ("Federal Rules"), a
plaintiff generally only needs to provide in a complaint "a short
and plain statement of the claim showing that the pleader is
entitled to relief." Fed.R.Civ.P. 8(a)(2). The Federal Rules
also provide that "[i]n all averments of fraud or mistake, the
circumstances constituting fraud or mistake shall be stated with
particularity." Fed.R.Civ.P. 9(b). The Seventh Circuit has
held that when a plaintiff is alleging that a defendant is liable
for the fraudulent act of a third party, as Graham is in the
instant action, "less detail may be required under Rule 9(b)
because the plaintiff may not have access to all the facts
necessary to detail his claim." Uni*Quality, Inc. v. Infotronx,
Inc., 974 F.2d 918, 923-24 (7th Cir. 1992). However, the
Seventh Circuit made it clear in Uni*Quality that a plaintiff
in such a situation must still allege who committed the fraud
or made the fraudulent representation, when the fraud was
committed, or the place where the fraudulent actions occurred.
Id. Furthermore, "allegations made upon information and belief
are insufficient, even if the facts are inaccessible to the
plaintiff, unless the plaintiff states the grounds for his
suspicions. . . ." Id.
In the instant action, Graham simply states that "Defendants'
conduct in attempting to reasonably remedy this matter has been
unfair, unreasonable, deceptive, oppressive, unconscionable, and
contrary to public policy and generally recognized standards
applicable to the consumer lending business." (Compl. 6-7). However, Graham alleges nothing in the complaint to support a
connection between Easy Life's alleged fraud and Defendants'
actions. Graham also fails to offer any specifics regarding the
"who, what, when, and where," Id., of the alleged fraudulent
acts, or any specific fraudulent representations that were made
by Defendants. Furthermore, the section of the Illinois
Administrative Code that Graham cites as providing a cause of
action for predatory lending in Illinois, Illinois Administrative
Code Title 38, 1050.110, contains regulations that correspond to
205 ILCS 635/1-1 et. seq., the Residential Mortgage License Act
of 1987 ("License Act"). However, Graham provides no support for
his claim that the License Act creates a private cause of action,
nor has Graham cited any cases that based civil liability on the
License Act. Therefore, based on the above, we grant Defendants'
motions to dismiss the fraud, intentional misrepresentation, and
predatory lending claim.
II. Unjust Enrichment Claim
Graham also claims that Defendants were unjustly enriched "by
foreclosing on a mortgage loan Defendants' [sic] know is a bad
loan." (Compl. 7). To succeed on an unjust enrichment claim, a
plaintiff must establish that: 1) the defendant retained a
benefit, 2) the retention of the benefit was to the detriment of
the plaintiff, and 3) "fundamental principles of justice, equity,
and good conscience" dictate that the defendant release the
benefit to the plaintiff. HPI Health Care Servs., Inc. v. Mt.
Vernon Hosp., Inc., 545 N.E.2d 672, 679 (Ill. 1989). Moreover,
under Illinois law, a plaintiff "may not state a claim for unjust enrichment when a
contract governs the relationship between the parties." First
Commodity Traders, Inc. v. Heinhold Commodities, Inc.,
766 F.2d 1007, 1011 (7th Cir. 1985).
In the instant action, Graham argues that "the Chase Defendants
. . . obtained a secured interest in the Property that the Chase
Defendants knew or should have known was overvalued to the
detriment of Graham. . . ." (Resp. C's Mot. 10). However, as
Midland states, "Graham conveniently forgets that Chase lent him
$124,898.00 in return for that mortgage." (Reply M's Mot. 6).
While it may be true that the property at issue here was
overvalued, that would simply mean that Defendants gave Graham a
larger mortgage than perhaps was necessary. It does not mean that
Defendants have retained any unjust profit from the mortgage that
they extended to Graham. In fact, Defendants actually could have
been harmed themselves if the property was over-appraised,
because that would mean that Defendants' loan to Graham was
under-secured. Additionally, Graham does not contest that his
relationship with Defendants is a contractual one, which would
preclude a finding of unjust enrichment. First Commodity
Traders, Inc., 766 F.2d at 1011. Therefore, we grant Defendants'
motions to dismiss the unjust enrichment claim.
III. Negligence and Fiduciary Duty Claim
Graham also alleges in the complaint that "Defendants owed
Graham a duty of care to assist Graham in restructuring his loan to a fair and
equitable loan in light of the Easy Life scam" and that
"Defendants failed to exercise reasonable care to provide Graham
reasonable options and solutions in light of the Easy Life scam."
(Compl. 7-8). In order to recover for negligence under Illinois
law, a plaintiff must show that "the defendant owed a duty of
care, that the defendant breached that duty, and that the
plaintiff incurred injuries proximately caused by the breach."
Adams v. Northern Illinois Gas Co., 809 N.E.2d 1248, 1257 (Ill.
2004). In the instant action, Graham has failed to show that
Defendants were the proximate cause of his injuries. In fact,
Graham directly states that he is seeking recovery "in light of
the hardship Graham suffered due to the Easy Life scam."
(Compl. 8) (emphasis added). Therefore, we find that Graham has
not alleged sufficient facts to survive a motion to dismiss his
Graham also alleges that Defendants breached a fiduciary duty
that they owed to Graham. Under Illinois law, "[a]
mortgagor-mortgagee relationship does not create a fiduciary
relationship as a matter of law." Teachers Ins. & Annuity Ass'n
of America v. LaSalle Nat. Bank, 691 N.E.2d 881, 888
(Ill.App.Ct. 1998). However, in some circumstances, a "contractual
relationship [can turn] into a fiduciary relationship [when] one
of the parties places great trust in and relies heavily on the
judgment of the other party." Id. at 888-89. In the instant
action, Graham makes no allegations in the complaint that would
show that he has placed such trust in or reliance on Defendants
to overcome the general rule that there is no fiduciary relationship between mortgagors and mortgagees. Therefore, we
grant Defendants' motions to dismiss the negligence and fiduciary
IV. Unconscionability Claim
Graham further alleges in the complaint that "[t]he attempted
enforcement of the mortgage by Defendant in light of the Easy
Life scam is significantly unconscionable." (Compl. 8). The
Seventh Circuit has held that in determining whether a contract
is unconscionable, courts must "look to the circumstances
existing at the time of the contract's formation, including the
relative bargaining positions of the parties and whether the
provision's operation would result in unfair surprise." We Care
Hair Development, Inc. v. Engen, 180 F.3d 838, 843 (7th Cir.
1999) (citing Cognitest Corp. v. Riverside Pub. Co.,
107 F.3d 493, 499 (7th Cir. 1997)) (internal quotations removed). In his
unconscionablity claim, Graham simply alleges that the
enforcement of his mortgage would be unconscionable. However,
Graham alleges nothing to show that the mortgage was
unconscionable at the time that it was entered into, or that any
unfair surprise that Graham may have suffered was in any way
related to either the mortgage contract or Defendants' actions.
Therefore, we grant Defendants' motions to dismiss the
V. Estoppel Claim
Finally, Graham alleges that "Defendants have lost it [sic]
rights to foreclose upon Graham's loan by failing to provide reasonable options and
solutions to Graham in light of the Easy Life Scam." (Compl. 8).
In order to support a cause of action based upon estoppel under
Illinois law, a plaintiff must show: "(1) he was misled by the
acts or statements of the insurer or its agents (2) reliance by
the insured on the representations of the insurer (3) the
reliance was reasonable and (4) the reliance was to the detriment
of the insured." Young v. Allstate Ins. Co., 812 N.E.2d 741,
753 (Ill.App.Ct. 2004) (quoting Meier v. Aetna Life & Casualty
Standard Fire Insurance Co., 500 N.E.2d 1096, 1099
(Ill.App.Ct. 1986)). Although a plaintiff is not required to plead
elements of a cause of action under the federal notice pleading
standard, Graham alleges absolutely nothing in the complaint to
show that he was misled by Defendants rather than by Easy Life,
or that could lead to a reasonable inference that Graham was
misled by Defendants. Graham also alleges nothing to show that he
in any way changed his position in reliance on a statement or
action by Defendants. Therefore, we grant Defendants' motion to
dismiss the estoppel claim. CONCLUSION
Based on the foregoing analysis, we grant Defendants' motions
to dismiss in their entirety.
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