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Hubbard v. Ameriquest Mortgage Co.

September 30, 2008

THOMAS HUBBARD, PLAINTIFF,
v.
AMERIQUEST MORTGAGE COMPANY, DEUTSCHE BANK NATIONAL TRUST AND AMC MORTGAGE SERVICES, INC. DEFENDANTS.



The opinion of the court was delivered by: Judge Robert M. Dow Jr.

MEMORANDUM OPINION AND ORDER

Plaintiff Thomas Hubbard ("Hubbard") filed an amended complaint against Defendants Ameriquest Mortgage Company ("Ameriquest"), Deutsche Bank National Trust ("Deutsche Bank"), and AMC Mortgage Services, Inc. ("AMC") alleging violations of the Truth in Lending Act, 15 U.S.C. § 1601 et seq. ("TILA"), seeking rescission of his mortgage and statutory damages. This matter is now before the Court on Plaintiff's renewed motion for summary judgment [103]. For the reasons set forth below, that motion is granted as to Ameriquest and Deutsche Bank and denied as to AMC. Also before the Court is Defendants' motion to strike portions of Plaintiff's renewed motion for summary judgment [113]. That motion is denied as moot, although the Court will disregard the portions of Plaintiff's submissions that Defendants find objectionable.

I. Background

This case was originally assigned to Judge Mark Filip. While still before Judge Filip, Plaintiff moved for summary judgment on liability and Defendants filed a cross-motion for summary judgment. Judge Filip struck those motions to allow for final determination of a case then before the Seventh Circuit that potentially was dispositive of one of the principal issues in this case.*fn1 As expected, the Seventh Circuit provided instruction on the issue in Hamm v. Ameriquest Mortgage Co., 506 F.3d 525 (7th Cir. 2007), and Plaintiff subsequently filed a renewed motion for summary judgment.

A. Local Rules on Summary Judgment

The Court takes the relevant facts from the Plaintiff's Local Rule 56.1 ("L.R. 56.1") statements ("Pl. SOF") and Defendants' Response ("Def. Resp. SOF"). The Court construes the facts and draws all reasonable inferences in Defendants', as the non-movant, favor. See Foley v. City of Lafayette, Ind., 359 F.3d 925, 928 (7th Cir. 2004).

L.R. 56.1 requires that statements of fact contain material allegations and the factual allegations must be supported by admissible record evidence. See L.R. 56.1; Malec v. Sanford, 191 F.R.D. 581, 583-85 (N.D. Ill. 2000). Where a party has offered a legal conclusion or a statement of fact without offering proper evidentiary support, the Court will not consider that statement. See, e.g., Malec, 191 F.R.D. at 583. Additionally, where a party improperly denies a statement of fact by failing to provide adequate or proper record support for the denial, the Court deems admitted that statement of fact. See L.R. 56.1(a), (b)(3)(B); see also Malec, 191 F.R.D. at 584. The Court disregards any additional statements of fact contained in a party's response rather than its statement of additional facts. See, e.g., Malec, 191 F.R.D. at 584 (citing Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1317 (7th Cir. 1995)).

B. Pertinent Facts

The facts of this case are straightforward. Prior to April 10, 2002, Plaintiff applied for a loan from Ameriquest that was secured by a mortgage on his home at 7249 South Princeton in Chicago, Illinois. Pl. SOF ¶¶ 2, 10. Ameriquest closed that loan on April 12, 2002. Pl. SOF ¶ 12. At the closing, Plaintiff received several documents including a Truth in Lending Act ("TILA") Disclosure Statement. Pl. SOF ¶ 13. The TILA Disclosure Statement stated that "payments shall be due beginning" "6/1/2002," it listed the number of payments (360), and the due date of the final payment (5/1/2032). Pl. SOF ¶ 16. The TILA Disclosure Statement did not "expressly state," "in words," that the loan payments were due "monthly."*fn2 Pl. SOF ¶ 17. The TILA Disclosure Statement did not list the due date of each and every payment under the loan.*fn3

Pl. SOF ¶ 18. After Ameriquest closed the loan, it sold or assigned the loan to Deutsche Bank. Pl. SOF ¶ 19. The servicing rights to Plaintiff's loan were transferred or assigned to AMC. Pl. SOF ¶ 20.

On January 18, 2005 Plaintiff's Counsel sent a letter to Ameriquest indicating Plaintiff's intent to rescind the loan for Defendant's alleged violations of the TILA.*fn4 Pl. SOF ¶ 21.

Although Plaintiff refinanced the mortgage at issue, the original loan was never rescinded.*fn5 Pl. SOF ¶¶ 23, 24.

II. Analysis

A. Standard of ...


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