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Tammerello v. Ameriquest Mortgage Co.

September 29, 2006

GAVIONE TAMMERELLO, PLAINTIFF,
v.
AMERIQUEST MORTGAGE COMPANY, A FOREIGN CORPORATION, AND GREEN TREE SERVICING, LLC, A FOREIGN CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: David H. Coar United States District Judge

HONORABLE DAVID H. COAR

MEMORANDUM OPINION AND ORDER

Plaintiff Gavione Tammerello ("Plaintiff") filed an amended complaint of six remaining counts against Defendant Ameriquest Mortgage Co. ("Ameriquest" or "Defendant") for violations of the Truth and Lending Act ("TILA"), Real Estate Settlement and Procedures Act ("RESPA"), and Illinois Consumer Fraud Act ("ICFA"), as well as common law fraud, breach of contract, and slander. Before this court are Defendant's motions for summary judgment under Federal Rule of Civil Procedure 56, and for dismissal of the breach and slander counts under Rule 12(b)(6). For the following reasons, Defendant's dismissal motion is DENIED as moot. Defendant's motion for summary judgment is GRANTED with respect to all counts.

BACKGROUND*fn1

Plaintiff filed a 15-count complaint against Defendants Green Tree Servicing, LLC ("Green Tree") and Ameriquest in the Circuit Court of Cook County on December 22, 2004 for regulatory and common law claims related to a mortgage transaction. Defendants filed a notice of removal to federal court on January 26, 2005. Defendants then filed separate motions to dismiss on March 31, 2005. Green Tree's motion was granted in its entirety. Ameriquest's motion was granted with respect to two counts, but these were later replaced in Plaintiff's amended complaint dated September 20, 2005. Six counts are now pending against Defendant. Plaintiff's complaint includes allegations that Ameriquest: engaged in unlawful conduct when it refinanced his mortgage at a higher interest rate than promised; failed to disclose key pieces of information throughout the financing process; rushed him through the closing; failed to explain the documents he was supposed to sign; and failed to provide him with a copy of all the documents after closing. In subsequent pleadings, he also alleges that Defendant processed two loans when only one was expected; failed to provide a revised notice of right to cancel; failed to disclose the total financing costs; and failed to provide him with form 12/30/99-HUD-1.

Now before this court is Defendant's motion for summary judgment. Defendant asserts that there are no remaining genuine issues of fact, that all remaining claims are time-barred under their relevant statutes of limitations, and that Plaintiff has not established essential elements of his claims as a matter of law.

FACTS

Plaintiff owned a residential home located at 19 West 136 Woodcreek Place in Downers Grove, carrying a mortgage held by Long Beach Mortgage Company ("Long Beach") at an interest rate of 10.6%. In November, 1999, Plaintiff received a "cold call" from Ameriquest employee Katrina Martinez ("Martinez"), who discussed with him the possibility of refinancing his mortgage and claimed that she could help him lower his interest rate to 8%. On December 10, 1999, Plaintiff signed and dated a variety of mortgage-related documents for Ameriquest during an in-person meeting with Martinez.*fn2 By these documents, Plaintiff secured a loan in the amount of $428,000, to be divided between settlement charges, disbursement to Long Beach for the previous mortgage, and disbursement to Plaintiff.*fn3 At that meeting, Plaintiff did not read any of the documents, and though he did notice that an interest rate of 10% was written on a piece of paper sitting on the meeting table, he was verbally reassured that he would receive the 8% rate he had been promised. On December 27, 1999, Plaintiff signed an additional mortgage agreement with Conseco Bank, Inc. ("Conseco") for a loan in the amount of $52,500.*fn4 Plaintiff did not make a payment on January 1, 2000 to his previous lender, Long Beach, and began to make payments on his new mortgage with Ameriquest starting February 1, 2000. The interest rate for Plaintiff's Ameriquest mortgage was at all times 10.25%.

Plaintiff claims that he never received copies of his loan documents at the meeting on December 10, 1999,*fn5 and that he called several times afterward to verify that the loan had been finalized and request that he be given the paperwork. In March or April of 2000, Plaintiff retained an attorney, Peter Metrou ("Metrou"), to act as his representative in requesting copies of the mortgage documents. He claims that at this point "he knew he had been injured, but could not obtain information necessary to decide whether the injury was due to defendant's wrongdoing." (Pl.'s Resp. To Def.'s (Corr.) L.R. 56.1 Statement, at ¶ 56.) It is unclear as to what Plaintiff thought his injury was and what exactly he communicated to Ameriquest. In May of that year, an Ameriquest employee by the name of Claire Cotter ("Cotter") spoke with Plaintiff and Metrou to address their concerns. In September of that same year, Cotter sent Metrou a copy of documents related to Plaintiff's loan. With the advice of counsel, Plaintiff came to believe that there was nothing to be done about any undisclosed terms*fn6 and decided not to pursue further action. In 2004, Plaintiff's monthly mortgage payments rose,*fn7 and this allegedly prompted him to contact Defendant to investigate the terms of his loan. At this point, he allegedly received additional documents and explanations related to his loan, but felt that the charges were not adequately justified. Plaintiff claims that he then realized Defendant had wrongly withheld information regarding the terms of the loan*fn8 and he therefore filed the instant suit.

LEGAL STANDARD

A party seeking summary judgment has the burden of showing, through "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," that there are no genuine issues of material fact that would prevent judgment as a matter of law. Fed. R. Civ. P. 56(c). On a motion for summary judgment, courts "must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party." Allen v. Cedar Real Estate Group, LLP, 236 F.3d 374, 380 (7th Cir. 2001).

Even so, the non-moving party may not rest upon mere allegations in the pleadings or upon conclusory statements in affidavits; rather, he must go beyond the pleadings and support his contentions with proper documentary evidence. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). To successfully oppose the motion for summary judgment, the non-movant must do more than raise a "metaphysical doubt" as to the material facts, see Wolf v. Northwest Ind. Symphony Soc'y, 250 F.3d 1136, 1141 (7th Cir. 2001) (citation and quotation omitted), and instead must present definite, competent evidence to rebut the motion, see Albiero v. City of Kankakee, 246 F.3d 927, 932 (7th Cir.2001); Fed. R. Civ. P. 56(c). In ruling on a motion for summary judgment, the Court must decide, based on admissible evidence, whether any material dispute of fact exists that requires a trial. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994).

Rule 56(c) mandates the entry of summary judgment against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and in which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. A non-moving party who bears the burden of proof on a specific issue must demonstrate by specific factual allegations that there is a genuine issue of material fact in dispute. McMillian v. Svetanoff, 878 F.2d 186, 188 (7th Cir.1989). This evidence provided by the non-movant must be sufficient to enable a reasonable jury to find in his or her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 ...


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