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Stanley v. Select Portfolio

May 9, 2008

ARTHUR L. STANLEY, PLAINTIFF,
v.
SELECT PORTFOLIO, JUDY KENT, THOMAS D. BASMAJIAN, MATT HOLLINGSWORTH, JAMES OZANNE, SELECT PORTFOLIO SERVICING, INC., SPS HOLDING CORP., AND HARRIS TRUST AND SAVINGS BANK, DEFENDANTS.



The opinion of the court was delivered by: J. Phil Gilbert District Judge

MEMORANDUM AND ORDER

This matter comes before the Court on the Motion to Dismiss (Doc. 38) filed by Defendants*fn1 to which Plaintiff has responded (Doc. 43). For the following reasons, the Court GRANTS the Motion to Dismiss.

BACKGROUND

Plaintiff Arthur L. Stanley (Stanley) filed a twelve count complaint against Defendants alleging various wrongful acts in regards to Defendants's actions leading up to and resulting in a judicial foreclosure on a mortgage Stanley had taken out on his home (the Foreclosure Action). Stanley modeled his complaint on a complaint filed by the Federal Trade Commission against Fairbanks Capitol Corp, Fairbanks Capitol Holding Corporation, and Thomas D. Basmajian in the United States District Court for the District of Massachusetts (the Other Action).

I. Judicial Notice of Public Records on Motion to Dismiss

As a preliminary matter, the Court notes that, on a motion to dismiss, documents outside the pleadings are generally not considered. Rule 12(d) provides:

If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleading are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given reasonable opportunity to present all material that is pertinent to the motion.

Fed. R. Civ. P. 12(d).

However, the Seventh Circuit holds that "the district court may also take judicial notice of matters of public record without converting a 12(b)(6) motion into a motion for summary judgment." Henson c. CSC Credit Services, 29 F.3d 280, 284 (7th Cir.1994) (quoting United States v. Wood, 925 F.2d 1580, 1582 (7th Cir.1991)). Accordingly, the Court draws the facts from Plaintiff's complaint, the complaint and consent order and judgment in the Other Action, and the complaint, answer, counter-complaint, and judgment in the Foreclosure Action. The Court views all facts in the light most favorable to Stanley. Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007) (per curiam ) (quoting Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007)).

II. Facts

A. The Foreclosure Action

On October 4, 1996, Stanley took out a mortgage with Citiscape Mortgage Corporation in the principal amount of $28,050.00 for a home located at 2918 Trendley Avenue in East St. Louis, Illinois. At some point, Stanley's mortgage was sold or assigned to Defendants. On August 9, 2000, Stanley defaulted on the mortgage. In 2003, Defendants brought two complaints for foreclosure of Stanley's mortgage in the Circuit Court of the Twentieth Judicial Circuit of Illinois in St. Clair County. Stanley answered the complaints and raised counterclaims of unfair dealings against Defendants. The actions were consolidated, and on February 7, 2006, an order was entered finding for Defendants and against Stanley on all counts. A judgment of foreclosure and sale was entered in favor of Defendants and against Stanley.

B. The Other Action

On November 12, 2003, the Federal Trade Commission (FTC) filed a complaint against Fairbanks Capital Corp., Fairbanks Capital Holding Corporation, and Thomas D. Basmajian alleging violations of the Federal Trade Commission Act (FTCA), 15 U.S.C. §§ 45(a), 45(m)(1)(A) and 53(b), the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692 et seq., the Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681 et seq. and the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. §§ 2605 and 2614. On November 21, 2003, the court in the Other Action entered a stipulated final judgment and order which ...


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