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Schilke v. Wachovia Mortgage

March 30, 2010

MARTHA SCHILKE, BOTH INDIVIDUALLY AND AS A REPRESENTATIVE OF ALL OTHER PERSONS SIMILARLY SITUATED, PLAINTIFF,
v.
WACHOVIA MORTGAGE, FSB F/K/A WORLD SAVINGS BANK, FSB, AND AMERICAN SECURITY INSURANCE, INC., DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

This putative class action arises out of a home mortgage loan that Plaintiff Martha Schilke obtained from World Savings Bank FSB, now known as Wachovia Mortgage FSB ("Wachovia"), and the subsequent purchase of hazard insurance for the mortgaged property by Wachovia from American Security Insurance Company ("ASI"). On March 29, 2009, Plaintiff filed a first amended class action complaint alleging various state law claims against Defendants Wachovia and ASI based on the premiums that she was charged for the lender placed insurance. The Court has jurisdiction based on diversity of citizenship. 28 U.S.C. § 1332. Before the Court are Wachovia's motion to dismiss [29] and ASI' s motion to dismiss [27]. For the reasons stated below, Wachovia's motion to dismiss [29] is granted and ASI's motion to dismiss [27] is granted.

I. Background*fn1

In March 2006, Schilke entered into a home mortgage loan with World Savings Bank FSB, which is now Wachovia. Cmplt. ¶¶ 23, 25. The mortgage agreement required Schilke to maintain hazard insurance for the mortgaged property. Cmplt. ¶ 29. The mortgage further provided that if Schilke failed to maintain hazard insurance, Wachovia could "do and pay for whatever it deems reasonable or appropriate to protect [its] rights in the Property," including "purchasing [the] insurance required." Ex. 1 to Cmplt. at ¶ 7. The mortgage expressly advised Schilke that insurance purchased by Wachovia "may cost more and provide less coverage than the insurance [plaintiff] might purchase." Id.

Schilke contracted to purchase hazard insurance for the mortgaged property through Grange Mutual Insurance on January 1, 2008. Cmplt. ¶ 29. Schilke paid a premium of $841 for the Grange insurance policy, which had a $500 deductible. Cmplt. ¶ 30.

On May 9, 2008, Wachovia set Schilke a letter requesting insurance information for the property. Cmplt. ¶ 31. The letter requested proof of insurance within 14 days, explained that "[f]ailure to provide this information may result in a policy being purchased by us at your expense to protect our interest," and advised Schilke that the policy Wachovia would purchase would have a premium of $2,034. Ex. D to [31].*fn2 The letter advised that Schilke' s monthly mortgage payment would be adjusted to cover the cost of the insurance and disclosed that the "premium may include compensation to the insurer and Wachovia Mortgage." Id.

On July 18, 2008, Wachovia sent Schilke a letter notifying her that it had purchased insurance from ASI with an annual premium of $2,034. Cmplt. ¶ 32. The letter advised Schilke that "[t]he cost of this policy is probably greater than the cost of comparable coverage obtained through your own insurance agency" and that "[t]he costs may include compensation to the Insurer and Wachovia Mortgage." Ex. F to [31].*fn3 The ASI policy covered Schilke for a smaller loss than did her previous policy. Cmplt. ¶ 33. Schilke alleges that the insurance premium that she was charged for the ASI policy included undisclosed fees -- which Schilke terms "kickbacks" --paid to Defendants for the placement, maintenance, and servicing of the insurance. Cmplt. ¶¶ 37, 40, 45. Schilke alleges that she "could not know that the amounts being billed as 'insurance premiums' were not, in fact, the true cost of the actual insurance coverage." Cmplt. ¶ 52. Schilke asserts claims against both Defendants for violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1, et seq. ("ICFA") (Counts I and V), common law fraud (Counts II and VI), conversion (Counts III and VII), and unjust enrichment (Counts IV and VIII).

II. Legal Standard on a Rule 12(b)(6) Motion

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint, not the merits of the case. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss, the complaint first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief" (FED. R. CIV. P. 8(a)(2)), such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the "speculative level," assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). "Detailed factual allegations" are not required, but the plaintiff must allege facts that, when "accepted as true, * * * 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 555). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, 550 U.S. at 563. The Court accepts as true all of the well-pleaded facts alleged by the plaintiff and all reasonable inferences that can be drawn therefrom. See Barnes v. Briley, 420 F.3d 673, 677 (7th Cir. 2005).

III. Analysis

A. Claims Against Wachovia

1. Preemption

Wachovia contends that all of Plaintiff's claims against it are expressly preempted by the Home Owners Loan Act, 12 U.S.C. §§ 1461 et seq. ("HOLA") and the implementing regulations promulgated by the Office of Thrift Supervision ("OTS"), 12 C.F.R. §§ 560.1 et seq. Enacted in 1933, the "HOLA empowered [the OTS] to authorize the creation of federal savings and loan associations, to regulate them, and by its regulations to preempt conflicting state law." In re Ocwen Loan Servicing, LLC, 491 F.3d 638, 641-42 (7th Cir. 2007). Noting that "[t]he broad language of [the HOLA] expresses no limits on the [OTS' s] authority to regulate the lending practices of federal savings and loans," the Supreme Court has stated that "' [i]t would have been "Fidelity Fed. Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 161 (1982) (citation omitted).

Pursuant to that mandate, the OTS has promulgated two regulations that address preemption: 12 C.F.R. §§ 545.2 and 560.2. Section 545.2 expresses the general principles that the OTS has "plenary and exclusive authority * * * to regulate all aspects of the operations of Federal savings associations," and that its "authority is preemptive of any state law purporting to address the subject of the operations of a Federal savings association." 12 C.F.R. § 545.2. Section 560.2 provides more specific guidance on the types of state laws that are expressly preempted. Section 560.2(a) states, in pertinent part:

OTS hereby occupies the entire field of lending regulation for federal savings associations. OTS intends to give federal savings associations maximum flexibility to exercise their lending powers in accordance with a uniform federal scheme of regulation. Accordingly, federal savings associations may extend credit as authorized under federal law, including this part, without regard to state laws purporting to regulate or otherwise affect their credit activities, except to the extent provided in paragraph (c) of this section * * *. 12 C.F.R. § 560.2(a). Subsection (b) of the regulation provides a list of "illustrative examples" of "the types of state laws preempted by paragraph (a)," including state laws purporting to impose requirements regarding:

(1) Licensing, registration, filings, or reports by creditors;

(2) The ability of a creditor to require or obtain private mortgage insurance, insurance for other collateral, or other credit enhancements;

(3) Loan-to-value ratios; difficult for Congress to give the [OTS] a broader mandate.'

(4) The terms of credit, including amortization of loans and the deferral and capitalization of interest and adjustments to the interest rate, balance, payments due, or term to maturity of the loan, including the circumstances under which a loan may be called due and ...


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