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Defrancesco v. First Horizon Home Loan Corp.

November 2, 2006

GARY DEFRANCESCO, PLAINTIFF,
v.
FIRST HORIZON HOME LOAN CORPORATION AND DOES 1-5, DEFENDANTS.



The opinion of the court was delivered by: Herndon, District Judge

MEMORANDUM and ORDER

I. Introduction and Background

Now before the Court is Defendant First Horizon Home Loan Corporation's motion to transfer venue (Doc. 14). Specifically, First Horizon Home Loan ("First Horizon") moves the Court to transfer this case to the Northern District of Texas arguing that it is the most convenient forum for this litigation. Plaintiff opposes the motion (Doc. 20). Because Defendant has not sustained its burden as to transfer, the Court denies the motion to transfer.

On January 24, 2006, Gary DeFrancesco filed suit against First Horizon and Does 1-5 to rescind a mortgage for violation of the Truth in Lending Act, 15 U.S.C. § 1601 et seq. ("TILA"), and implement Federal Reserve Board Regulation Z, 12 C.F.R. part 226 (Doc. 1).*fn1 On March 24, 2004, Plaintiff obtained a loan from First Horizon. The complaint states that he "needed and used the loan for personal, family or household purposes, namely, refinancing of prior debt incurred for such purposes." (Doc. 1, p. 2, ¶ 9). Plaintiff alleges that a form used by First Horizon in the loan transactions failed to provide appropriate disclosures required by TILA. Plaintiff further alleges that the loan form violates TILA by failing to make certain required disclosures concerning the borrower's right to cancel the loan within three days of signing it.

On June 5, 2006, First Horizon filed the motion to transfer arguing that the Northern District of Texas is the most convenient forum because First Horizon's principal place of business is located there (Doc. 14). Plaintiff opposes the motion (Doc. 20).

II. Analysis

28 U.S.C. § 1404(a), which governs the transfer of an action from one federal district court to another, provides:

For the convenience of the parties and the witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it may have been brought.

A transfer under § 1404(a) is appropriate if: (1) venue is proper in both the transferor and the transferee court; (2) transfer is for the convenience of the parties and witnesses; and (3) transfer is in the interest of justice. Vandeveld v. Christoph, 877 F. Supp. 1160, 1167 (N.D. Ill. 1995).

In determining whether a motion under § 1404(a) should be granted, the court must seek to promote the efficient administration of justice and not merely the private interests of the parties. North Shore Gas Co. v. Salomon, Inc., 896 F. Supp. 786, 791 (N.D. Ill. 1995). The weighing of factors for and against transfer necessarily involves a large degree of subtlety and latitude and, therefore, is committed to the sound discretion of the trial court. Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1293 (7th Cir. 1989); Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219 (7th Cir. 1986). The party seeking a transfer under § 1404(a) bears the burden of establishing that the transferee court is clearly more convenient. Coffey, 796 F.2d at 219-20.

Defendant asserts, and Plaintiff do not contest, that venue is proper in both the transferee district and in the transferor court. See 28 U.S.C. § 1391(a) & (c). What the parties dispute is whether the convenience of the parties and witnesses and the interest of justice factors weigh in favor of transfer. Here, First Horizon has not established that the transferee district (the Northern District of Texas) is clearly "more convenient." Nor has Defendant shown that the interest of justice is promoted by trying the case in the Northern District of Texas rather than in this judicial district.

In evaluating the convenience of transfer, factors to be considered are:

(1) plaintiff's initial choice of forum; (2) the relative ease of access to the sources of proof; (3) convenience of non-party witnesses; (4) situs of the material events; and (5) the convenience of the parties, specifically their respective residences and abilities to bear the expense of trial in a particular forum. Geourgouses v. Natec Resources, Inc., 963 F.Supp. 728, 730 (N.D. Ill. 2000); Amoco Oil Co. v. Mobil Oil Corp., 90 F.Supp. 958, 960-61 (N.D. Ill. 2000).

As to the party-convenience factor, today "[e]asy air transportation, the rapid transmission of documents, and the abundance of law firms with nationwide practices, make[s] it easy . . . for cases to be litigated with little extra burden in any of the major metropolitan areas." Board of Trustees, Sheet Metal Workers National Pension Fund v. Elite Erectors, Inc., 212 F.3d 1031, 1037 (7th Cir. 2000). In evaluating party convenience, however, a court should consider the parties' respective residencies and their relative ability to withstand the ...


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