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In re Ameriquest Mortgage Co. Mortgage Lending Practices Litigation

March 5, 2008


The opinion of the court was delivered by: Honorable Marvin E. Aspen District Judge

MDL No. 1715


Presently before us are two similar motions to dismiss the Third-Party Complaint (Docket No. 859), filed on July 5, 2007 by Defendant/Third-Party Plaintiff Ameriquest Mortgage Co. ("Ameriquest") in this MDL action. In the Third-Party Complaint, Ameriquest alleges that -- if the allegations of the Non-Borrower Complaint*fn1 are found to be true -- ChoicePoint Precision Marketing LLC ("Choicepoint"), and Equifax Information Services LLC ("EIS")*fn2 along with Equifax Credit Marketing Services ("ECMS")*fn3 (collectively, "Equifax") breached their contracts with Ameriquest and engaged in negligent conduct. Ameriquest claims that any FCRA violation attributed to it in the Non-Borrower action stems directly from ChoicePoint's and Equifax's breaches of contract and other misconduct. Among other things, Ameriquest seeks indemnification and contribution from ChoicePoint and Equifax, as well as rescission of the pertinent contracts. For the reasons set forth below, we grant ChoicePoint's and Equifax's motions in part and deny them in part.*fn4


According to the Third-Party Complaint, Choicepoint, EIS and ECMS, each Georgia entities, are "credit reporting agencies" ("CRAs") as defined by the FCRA.*fn5 (Compl. ¶¶ 3-5, 21, 26, 31.) The Third-Party Complaint generally describes the relationship between Ameriquest and these CRAs, whereby Ameriquest paid the CRAs to provide information about consumers. Choicepoint, EIS and ECMS allegedly "entered into a series of written and oral agreements with Ameriquest," which are neither described in, nor attached to the complaint. (Id. ¶¶ 21, 26, 31.) Pursuant to these agreements with Ameriquest, ChoicePoint and ECMS "using Equifax data . . . provided Ameriquest with the Consumer Lists for Ameriquest's Direct Mail Program," enabling Ameriquest to write prescreened consumers. (Id. ¶ 21.) These marketing letters ("Letters") purportedly made "'firm offers of credit' that contained proper 'clear and conspicuous' disclosures to consumers" as required by the FCRA. (Id.) For its part, EIS "provided the data and/or developed and marketed the computerized process/systems for generating the Consumer Lists" to be used in the Direct Mail Program. (Id. ¶ 26.)

Ameriquest further alleges that Choicepoint and Equifax "represented to Ameriquest that [they] knew and operated within the requirements of FCRA." (Id. ¶¶ 23, 28, 33.) Choicepoint and Equifax represented that they were "aware of the responsibilities imposed by FCRA . . . including, but not limited to, those specific requirements under FCRA that pertain to making firms offers of credit and/or clear and conspicuous disclosures." (Id.) Ameriquest alleges that it reasonably relied on these representations in entering into the various agreements with ChoicePoint and Equifax. (Id.) The Third-Party Complaint also states that ChoicePoint and Equifax knew that the Consumer Lists would be used for the Direct Mail Program and "had the ability and opportunity to review, comment, and approve the Letters in order to satisfy [themselves] that . . . the Letters complied with all applicable laws." (Id. ¶¶ 24-25, 29-30, 34-35.)

Based on these factual allegations, Ameriquest levies numerous charges against Choicepoint and Equifax. Specifically, the Second, Third and Fourth Claims of the Third-Party Complaint set out breach of contract actions, contending that if "the allegations in the Non-Borrower Complaint are proven to be true, [each entity] breached its written and oral contracts with Ameriquest by failing in [their] prescreening activities, and the Consumer Lists [they] developed, as well as failing to ensure that the Letters . . . complied with the . . . requirements of FCRA." (Id. ¶ 47; see also id. ¶¶ 54, 61.) The Fifth Claim seeks equitable or implied indemnity against each third-party defendant, while the Sixth Claim seeks contribution. In the Seventh Claim, Ameriquest claims that ChoicePoint and Equifax negligently misrepresented their experience in direct-mail programs, their knowledge of FCRA requirements and the Letters' compliance with such requirements. (Id. ¶¶ 77-78.) The Eighth Claim, for negligence, alleges that Choicepoint and Equifax violated their duties to properly generate the Consumer Lists, to further Ameriquest's interests, and to follow all federal laws. (Id. ¶¶ 84-86.) Finally, Ameriquest seeks rescission in the Ninth Claim on the grounds that ChoicePoint and Equifax falsely induced it to enter into their respective contracts.


The purpose of a motion to dismiss under 12(b)(6) is to test the sufficiency of the complaint, not to decide the merits of the case. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). Accordingly, a court may grant a motion to dismiss under Federal Rule of Procedure 12(b)(6) only if a complaint lacks "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007); see Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 618-19 (7th Cir. 2007); EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776-77 (7th Cir. 2007). A sufficient complaint need not give "detailed factual allegations," but it must provide more than "labels and conclusions, and a formulaic recitation of the elements of a cause of action." Twombly, 127 S.Ct. at 1964-65 (2007); Killingsworth, 507 F.3d at 618-19. These requirements ensure that the defendant receives "fair notice of what the . . . claim is and the grounds upon which it rests." Twombly, 127 S.Ct. at 1964 (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 102 (1957)); see also Fed. R. Civ. P. 8(a). In evaluating a motion to dismiss, we must accept all well-pleaded allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Thompson v. Ill. Dep't. of Prof'l Reg., 300 F.3d 750, 753 (7th Cir. 2002). ANALYSIS

A. Contract Claims and Defenses

As mentioned earlier, the Third-Party Complaint alleges that Choicepoint, EIS and ECMS "entered into a series of written and oral agreements with Ameriquest." (Id. ¶¶ 21, 26, 31.) With their opposition briefs, both ChoicePoint and Equifax submitted a December 15, 2000 Subscriber Agreement ("Subscriber Agreement"), which they allege is the operative document governing the parties' relationships.*fn6 (ChoicePoint Mot. at 7; Equifax Mot. at 3-4.) ChoicePoint and Equifax contend that: (1) Ameriquest's claims are barred by the exculpatory clause of the Subscriber Agreement; and (2) they cannot be held liable for breach of contract because they had no duty to ensure the legality of the Letters under the Subscriber Agreement. (ChoicePoint Mot. at 7-11; Equifax Mot. at 7-10.) Both arguments would require us to evaluate the terms of the Subscriber Agreement, which was neither attached to, nor specifically identified in, the Third-Party Complaint.

ChoicePoint and Equifax argue that we may consider the Subscriber Agreement nonetheless because "'documents attached to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to [its] claim.'" Rosenblum v. Ltd., 299 F.3d 657, 661 (7th Cir. 2002) (quoting Wright v. Assoc. Ins. Cos. Inc., 29 F.3d 1244, 1248 (7th Cir. 1994)); see also Fed. R. Civ. P. 10(c); 188 LLC v. Trinity Indus., Inc., 300 F.3d 730, 735 (7th Cir. 2002). "'This is a narrow exception' to the general rule that when additional evidence is attached to a motion to dismiss, 'the court must either convert the 12(b)(6) motion into a motion for summary judgment under Rule 56 . . . or exclude the documents.'" 188 LLC, 300 F.3d at 735 (quoting Levenstein v. Salafsky, 164 F.3d 345, 347 (7th Cir. 1998)).

While this limited exception is suitable for cases interpreting contracts, see Rosenblum, 299 F.3d at 661; 188 LLC, 300 F.3d at 735, we find it inapplicable under these circumstances. In the present case, Ameriquest alleges the existence of numerous written and oral contracts, but the Subscriber Agreement is not specifically referred to, identified or quoted in the Third-Party Complaint. See, e.g., McReady v. Ebay, Inc., 453 F.3d 882, 891-92 (7th Cir. 2006) (affirming district court's decision to consider subpoena "repeatedly referenced" in the complaint); Wright, 29 F.3d at 1248 (similarly affirming decision to consider agreement "repeatedly quote[d] from and refer[red] to" in the complaint); Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431-32 (7th Cir. 1993) (affirming district court's decision to review correspondence attached to motion to dismiss where complaint pointed to these documents as the basis for contractual relationship). Moreover, ChoicePoint's and Equifax's submission of the Subscriber Agreement does not contradict, undermine or otherwise disprove Ameriquest's allegation that there are several agreements in play.

The Rule 12(b)(6) standard requires us to accept Ameriquest's allegation regarding the existence of multiple contracts as true. As a result, and despite ChoicePoint's and Equifax's representations, we cannot assume that the Subscriber Agreement is the solitary operative contract. Because we do not know whether the Subscriber Agreement is controlling -- and we cannot consider evidence outside the complaint at this juncture -- it may or may not be "central" to Ameriquest's claims. Indeed, it may be entirely irrelevant if superseded. In light of Ameriquest's allegations, ...

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