Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McCready v. Main Street Trust

August 5, 2008

WILLIAM H. MCCREADY AND RACHEL SUE MCCREADY, TRUSTEES, PLAINTIFFS,
v.
MAIN STREET TRUST, INC., AN ILLINOIS BANKING CORPORATION, AS SUCCESSOR IN INTEREST TO BANK ILLINOIS, AN ILLINOIS BANKING CORPORATION, AS TRUSTEE UNDER TRUST NUMBER 960; ROBERT L. THORTENSON, JOHN W. HEALEY, AND WILLIAM E. COFFEL, DOING BUSINESS AS COHETH PROPERTIES; ROSENBOOM REALTY, INC.; AND LARRY EUGENE HALL, DEFENDANTS.



The opinion of the court was delivered by: Michael P. McCUSKEY Chief Judge

OPINION

On October 23, 2007, Plaintiffs William and Rachel Sue McCready, proceeding pro se, filed their First Amended Complaint (#19) alleging claims against Defendants premised on the Residential Lead-Based Paint Hazard Reduction Act, 42 U.S.C. § 4851 et seq., and the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq. Plaintiffs further brought a claim premised on Illinois law to declare a real estate purchase contract null and void, and asking for restitution. Both Plaintiffs and Defendants made motions for summary judgment (#38, #44). In an Opinion dated June 20, 2008 (#54), this court granted Defendants' Motion in part, denied it in part, and denied Plaintiffs' Motion. On July 3, 2008, Plaintiffs filed a Rule 59 Motion to Alter or Amend Judgment and Vacate Dismissal. This court, after careful consideration of Plaintiffs' arguments, finds that they lack merit and declines to alter or amend the prior decision for the reasons that follow.

BACKGROUND

The instant dispute arose over a contract for sale of a piece of real estate located in the Village of Loda in Iroquois County, Illinois (Property). On the Property is situated a two-story building constructed in the late 1800s. Defendants Robert L. Thortenson, John W. Healey, and William E. Cofel, who did business as Coheth Properties, owned the Property until December 1991 when they conveyed title of the Property to BankIllinois as trustee under the provisions of a trust. The Property had been used by Coheth Properties as office space. The Property was eventually put up for sale and was listed by Defendant Rosenboom Realty.

Plaintiffs William and Rachel Sue McCready entered into a contract to buy the Property for their son, Kenneth McCready, who planned to, and did, use it as both office space and living quarters. Defendant Larry Eugene Hall, a real estate agent working for Rosenboom Realty, served as agent for Defendant Main Street Trust*fn1 in the sale of the Property. Plaintiffs received a warranty deed to the Property as well as a title insurance policy. The deed was recorded on May 16, 2002.

Plaintiffs instituted the instant action on May 15, 2007, alleging a violation of the Residential Lead-Based Paint Hazard Reduction Act (RLPHRA) and the Toxic Substances Control Act (TSCA) due to Defendants' failure to provide a lead-based paint disclosure at any time prior to or following the sale of the property. Defendants admit to not having provided a lead-based paint disclosure, but reason that because the Property was listed as commercial real estate, they were not bound by the RLPHRA or the TSCA to do so.

As relief for their claim, Plaintiffs sought an order against Defendants Rosenboom Realty, Inc. and Larry Hall "preliminarily, permanently, and affirmatively enjoining them to provide all disclosures they are required to provide by law but failed to provide before Plaintiffs purchased (or attempted to purchase) the subject property." Plaintiffs further sought a declaratory judgment that the Property constitutes "target housing" and "residential real property" under the RLPHRA and the TSCA, damages to compensate them for any costs they incur in the abatement of any lead-based paint hazards that exist of which the Defendants were aware*fn2 before Plaintiffs became obligated under the purchase/sale agreement, or which could have been discovered upon a reasonable investigation at the same time (or, at least, nominal damages for Defendants' "willful noncompliance with the Acts and Regulations"), and an award of costs and attorney fees. Plaintiffs further alleged that, under Illinois law, the contract for sale was void, and requested restitution.

In the June 20, 2008 Opinion, this court found that the relief sought by Plaintiffs pursuant to Count I was inappropriate. This court found that Plaintiffs were not attempting to "restrain" Defendants' conduct, but rather to rectify a past error, and therefore concluded that injunctive relief was unavailable. This court further found that there were no damages available for Plaintiffs to recover under the RLPHRA, as they had not incurred any expense in an effort to remedy conditions of lead-based paint in the house. As such, Plaintiffs could not be considered a "prevailing party" and were therefore not entitled to costs associated with the litigation. With respect to Count II, this court declined to exercise supplemental jurisdiction after dismissing Count I.

ANALYSIS

Plaintiffs first "object to having to assert [their jurisdictional arguments] in a Rule 59 motion" and to this court's sua sponte ruling based on jurisdiction. It is, however, the court's duty to police subject matter jurisdiction, whether raised by either party or not. See Louisville & Nashville Railroad Co. v. Mottley, 211 U.S. 149, 152 (1908).

In their Rule 59 Motion, Plaintiffs assert that this court "overlooked" its original jurisdiction over Count I, arguing that this court has jurisdiction to award nominal damages, declaratory relief, and injunctive relief in the context of Count I.

As this court noted in its previous opinion, the TSCA authorizes private plaintiffs to receive injunctive relief. See Sipes v. Russell, 89 F. Supp. 2d 1199, 1204-05 (D. Kan. 2000). This relief, however, is offered solely "to restrain something that is ongoing or continuous, and that may continue in the future," and cannot be used to "remedy alleged violations of the statute" or rectify an error. Arbor Hill Concerned Citizens Neighborhood Ass'n v. City of Albany, 250 F. Supp. 2d 48, 60 (N.D. N.Y. 2003). Plaintiffs argue, however, that injunctive relief is appropriate in the instant case "because Defendants are still in violation of those Acts - that is, their violations are ongoing because they have not yet disclosed all of the things required by law, and Plaintiffs have not yet become obligated under any contract to purchase." This argument is unconvincing.

First, the fact of non-disclosure itself does not affect the validity of a contract for sale. The RLPHRA explicitly states that none of its stipulations "shall affect the validity or enforceability of any sale or contract for the purchase and sale or lease of any interest in residential real property."

42 U.S.C. ยง 4852d(c). Therefore, the contract cannot be void under federal law for the failure to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.