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Durham v. Loan Store

November 27, 2006

BRENDA DURHAM, PLAINTIFF,
v.
THE LOAN STORE, INC., ALASKA SEABOARD PARTNERS, L.P., AND SN SERVICING CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Honorable David H. Coar

MEMORANDUM OPINION AND ORDER

Before this Court are defendants The Loan Store, Alaska Seaboard Partners, L.P., and SN Servicing Corporation's ("Defendants") motions for summary judgment against plaintiff Brenda Durham ("Plaintiff"). For the reasons set forth below, Defendant's motion for summary judgment is GRANTED in part and DENIED in part.

I. FACTS

In March 1999, Brenda Durham ("Plaintiff"), who owned a home at 1326 E. 72th Street, Chicago Illinois, corresponded with Janice Caldwell, a Loan Store employee, to see whether Loan Store could assist her in obtaining a mortgage loan. The Loan Store is a Missouri corporation engaged in mortgage lending with the authority to transact business in Illinois. Plaintiff claims that she told Caldwell that she had at best a nominal income, consisting of around $300.00 per month in public aid, $50.00 per month in child support, a food stamp allocation, and inconsistent and fluctuating money from baby-sitting. Plaintiff claims, and Loan Store disputes, that she told Caldwell that she could only pay $350 to $400 per month, and would have trouble producing fees up front. Loan Store claims Plaintiff said she could pay $500.00 per month. Caldwell prepared Plaintiff's paperwork for securing her loan.

After Plaintiff met with Caldwell, Plaintiff knowingly allowed a telephone service to be placed at her house under the name "Mary Wilson." Plaintiff knew that because her account with Ameritech was delinquent, she would not be able to obtain service under her real name and therefore used the fictitious name "Mary Wilson." Plaintiff claims that use of the fictitious name was at the instigation and procurement of Caldwell.

On May 25, 1999, Plaintiff attended the First Closing of a loan procured by Loan Store. Vernell Bradley, another Loan Store employee, was also present at the closing. At the First Closing, Plaintiff read her loan application and noticed that it misrepresented the amount of money she was making as well as the actual length of her employment. Although Plaintiff understood that the documents she was signing contained misrepresentations, she was reassured by Caldwell that she should " not worry" and "just sign." Plaintiff further claimed that The Loan Store hid from her several false documents that misrepresented her income and assets. Plaintiff alleged that she was informed for the first time that her monthly payment would be $724.00 at the First Closing.

At the First Closing, Plaintiff noticed that two companies named Prime Professionals and Process Works were receiving over $10,000.00 from the loan proceeds and asked Caldwell about them. Caldwell told Plaintiff that the payments to Prime Professionals and Process Works were for taxes. Plaintiff knew that the back taxes she owed for the property were under $5,000.00. Plaintiff testified that Caldwell told her The Loan Store had to take out extra money, in case the taxes were more, and that any excess would be returned to Plaintiff. Plaintiff never received any return, and pursuant to a subpoena in the prior litigation, Plaintiff discovered that the authorized signatory on the TCF Bank account for Prime Professionals was Janice Caldwell; the authorized signatory on the TCF Bank account for Process Works was Vernell Bradley.

Plaintiff signed the paperwork and proceeded with the First Closing. After the First Closing, Plaintiff spent all night and part of the next morning reviewing the loan documents. On May 26, 1999, Plaintiff cancelled the loan because of the misstatement of her income and length of employment. Plaintiff also cancelled the loan because she did not know who Prime Professional and Process Works were.

After she cancelled the First Closing, Plaintiff was stressed because she needed the money from the loan. She spoke with Caldwell about the closing, and questioned Caldwell about the misrepresentations contained in the loan documents. Caldwell told the Plaintiff not to worry about the mispresentations. Plaintiff claimed that Caldwell induced Plaintiff to re-execute the loan through various statements berating, guilting, and shaming Plaintiff for canceling after she had put in so much work, and told Plaintiff that she risked losing her home due to back taxes. After speaking with Caldwell, Plaintiff agreed to proceed with the loan.

On May 28, 1999, Plaintiff resigned the same paperwork during the Second Closing. Her brother Calvin Durham was present. Plaintiff took out a principal sum of $62,400.00, payable in five years. Caldwell did not attend the Second Closing. At the Second Closing, Plaintiff signed a letter written by her brother indicating what she was going to do with the loan proceeds.

Plaintiff claims that Bradley dictated the letter that Calvin Durham wrote, and Plaintiff did not fully understand some of the items in the letter. Plaintiff left the Second Closing with the same mixed feelings. Plaintiff used the loans she obtained to pay her property taxes, the debt to Ameritech, living expenses, food, clothing and repairs on her home.

The Loan Store thereafter sold and assigned the mortgage and note to EquiCredit. In January 2002, EquiCredit sold and assigned the mortgage and note to Alaska Seaboard Partners, L.P. ("Alaska Seaboard"). Alaska Seaboard is the current owner and holder of Plaintiff's mortgage and note. SN Servicing Corporation is the servicer of plaintiff's loan. Neither Alaska Seaboard nor SN Servicing had any role in the origination or closing of Plaintiff's mortgage loan. Neither Alaska Seaboard nor SN Servicing were or are affiliated with The Loan Store.

Plaintiff filed her initial complaint against the Loan Store in November 2000. On May 24, 2002, Plaintiff filed a Second Amended Third Party Compliant against Loan Store alleging negligence. On September 9, 2002, the Circuit Court of Cook County dismissed Plaintiff's Second Amended Compliant. On January 13, 2003, Plaintiff filed a Third Amended Third Party Complaint alleging negligent misrepresentation as an exception to the Moorman doctrine. Plaintiff did not replead a claim for ordinary negligence. On June 10, 2003, the Circuit Court of Cook County dismissed Plaintiff's negligent misrepresentation claim with prejudice. Plaintiff did not appeal the Order. Plaintiff then voluntarily dismissed her Third Amended Complaint on March 8, 2004. ...


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