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Alexander v. Bank of America

January 15, 2010

VELVET D. ALEXANDER, TEAIA ALEXANDER JOHNSON AND ANDRE JOHNSON, PLAINTIFFS,
v.
BANK OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Wayne R. Andersen District Judge

MEMORANDUM, OPINION AND ORDER

This matter is before the court on defendant Bank of America's motion to dismiss. For the reasons set forth below, the motion to dismiss [20] is granted, and the amended complaint is dismissed with prejudice.

BACKGROUND

Plaintiffs Velvet D. Alexander ("Velvet"), Teaia Alexander Johnson ("Teaia") and Andre Johnson ("Andre") (collectively, "plaintiffs") filed a three-count amended complaint against Bank of America (hereinafter, "BOA" or the "Bank"). Count I alleges a violation of the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601 et. seq., and Federal Reserve Board Regulation Z ("Regulation Z"), 12 C.F.R. § 226. Count II alleges a violation of the Real Estate Settlement Practices Act ("RESPA"), 12 U.S.C. § 2601, and IIUD Regulation X, 24 C.F.R. § 3500. Count III alleges a state law claim of negligence.

In June 2007, Teaia and Andre Johnson allege that they attempted to refinance the mortgage on their property. They allege that they were the sole beneficiaries of the land trust holding title to the property at issue. Plaintiffs claim that BOA would not refinance the mortgage with the property in a land trust. In order to obtain the refinancing, Teaia and Andre allege that the Bank required them to convey the property out of the land trust agreement, and as a result, they incurred costs exceeding $7,000.00 because they went through two separate closings, including duplicative appraisals and documentation fees and increased escrow and insurance costs.

Teaia and Andrea also allege that the Bank insisted on restructuring the transaction as a new purchase rather than a refinance, and as a result they were required to enlist a co-signer on the loan, defendant Velvet Alexander. Teaia and Andre claim that they paid additional charges for the Bank to obtain credit reports on Velvet and for other documentation. In addition, plaintiffs claim that because Velvet did not live at the property with Teaia and Andre, they did not qualify for a more favorable FHA owner-occupied mortgage, and as a result, their homeowners' insurer raised their policy premium.

Plaintiffs allege that, during the period shortly after the loan closed in September 2007, they communicated with BOA in writing and by telephone on October 23, 25 and 30, 2007 and June 18 and July 9, 2008, requesting that the Bank recognize the validity of the land trust agreement and unwind the prior transaction to recognize Teaia and Andre as the sole owners of the property. Plaintiffs allege that BOA neither responded substantively to their direct or written communications nor complied with their requests.

In or about February 2008, Teaia alleges that she attempted to remove Velvet as a title holder in the property because Velvet was having difficulty obtaining a residence of her own because she was on the title to Teaia's property. Teaia alleges that she secured a new mortgage loan through Countrywide Financial Services ("Countrywide"). Plaintiffs claim that during the closing on the Countrywide loan, the agent of either Countrywide or BOA (or both) made one or more errors that understated the funds necessary to pay off the BOA loan and that BOA was not paid in full. Plaintiffs contend that neither BOA nor Countrywide advised them of the error until several months after the February 2008 closing. Plaintiffs allege that they did not know about the $13,000.00 deficiency until they began receiving delinquency notices on the loan in or about May 2008. BOA has moved to dismiss plaintiffs' amended complaint.

DISCUSSION

A pleading generally need only contain a short and plain statement of the claim showing that the pleader is entitled to relief that is plausible on its face, sufficient to provide defendant with "fair notice." Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (U.S. 2007). In ruling on a motion to dismiss, the court must assume the truth of the facts alleged in the complaint, construing the allegations liberally and viewing them in the light most favorable to plaintiff. Tamayo v. Blagojevich, 526 F.3d 1074, 1082 (7th Cir. 2008).

I. Andre Does Not Have Standing to Bring a Claim Pursuant to TILA or RESPA

BOA argues that all of the claims asserted by Andre should be dismissed with prejudice because the BOA loan was made to Teaia and Velvet, not Andre. Plaintiffs do not offer any argument in support of the purported standing of Andre and do not dispute that Andre was not a borrower on the loan. Because Andre Johnson was not a borrower, he has no standing to assert any claims under TILA, RESPA or otherwise. Therefore, BOA's motion to dismiss Andre Johnson is granted.

II. Plaintiffs Did Not Plead a Violation of TILA

In Count I of their complaint, plaintiffs allege that BOA's actions violated TILA. The purpose of TILA is to "assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit, and to protect the consumer against inaccurate and unfair credit billing and credit card practices." 15 U.S.C. ยง 1601(a). Plaintiffs allege that TILA was violated because the subject property was described as being in South Holland rather than in ...


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