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Broughton-Irving v. Saphir

November 18, 2010

CARRIE BROUGHTON-IRVING, BERNARD NEVEL, ETTA NEVEL, ERSKINE CARTWRIGHT, PATRICK MURPHY, CHARLES BARBER, BOB ANDERS, MARILYN ANDERS, AND TERRY KICKERT, EACH INDIVIDUALLY AND DERIVATIVELY ON BEHALF OF HERITAGE COMMUNITY BANCORPORATION, INC. PLAINTIFF,
v.
JOHN M. SAPHIR, IRA S. NATHAN, JERRY C. BRUCER, STEPHEN FAYDASH, PATRICK G. FANNING, AND MARY MILLS, HERITAGE COMMUNITY BANCORPORATION, INC., AN ILLINOIS CORPORATION, AND FEDERAL DEPOSIT INSURANCE CORORATION, AS RECEIVER OF HERITAGE COMMUNITY BANK, DEFENDANTS, NOMINAL DEFENDANT, INTERVENOR.



The opinion of the court was delivered by: David H. Coar United States District Judge

Honorable David H. Coar

MEMORANDUM OPINION AND ORDER

Plaintiffs Carrie Broughton-Irving, Bernard Nevel, Etta Nevel, Erskine Cartwright, Patrick Murphy, Charles Barber, Bob Anders, Marilyn Anders, and Terry Kickert (collectively "Plaintiffs"), individually and on behalf of Heritage Community Bancorporation, Inc., bring an amended complaint against Defendants John Saphir, Ira Nathan, Jerry Brucer, Stephen Faydash, Patrick Fanning, Mary Mills (collectively "Defendants"), individually and in their capacity as directors and officers of Heritage Community Bancorporation, Inc., for breach of fiduciary duty, gross management, waste of corporate assets, fraud breach of contract, fraudulent misrepresentation, negligent misrepresentation, and violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1, et seq.

Before the Court is Plaintiffs' amended motion to remand [64] (amending motion [18]), and motions to dismiss filed by Mills [61], Nathan [67], Brucer [73], Fanning [79], Saphir [70], Faydash [114], and the FDIC [75]. For the reasons stated below, Plaintiffs' motion to remand is GRANTED. Defendants' and the FDIC's motions to dismiss are DENIED as MOOT.

I. Background

During the relevant period of time, Heritage Community Bank ("Heritage") was allegedly under the direction, control, and supervision of Defendants, in their capacities as directors and officers of the bank's holding company, Heritage Community Bancorporation ("Bancorp"). Defendants' improper oversight allegedly exposed Heritage to excessively risky loans. Plaintiffs allege that the resulting lending practices substantially violated lending standards and risk management controls recognized throughout the industry.

Additionally, Defendants allegedly took out a $4 million line of credit to purchase 6,100 shares of Bancorp stock at $700 a share -- twice the actual book value -- from Gerald Stewart in 2006. Plaintiffs did not receive prior notice of the so-called "Stewart Transaction," which they allege was a misappropriation of Bancorp funds. Plaintiff Broughton-Irving subsequently sought to sell her shares to Heritage Bancorp for a similar price, to no avail.

Throughout 2008, Defendant Saphir allegedly made false and misleading statements to certain of Plaintiffs regarding Heritage's financial status and risk exposure, in accordance with the 2007 Bancorp Annual Report. On February 14, 2008, Bancorp shareholders were given the opportunity to purchase 2,902 shares of stock at $352.00 a share. Allegedly relying on Saphir's false representations and the 2007 Annual Report, Barber, Mr. Nevel, Ms. Nevel, and Murphy purchased hundreds of shares at this price. The remaining Plaintiffs, allegedly relying on the same misinformation, held on to their shares.

In the fall of 2008, the FDIC and Illinois Department of Financial and Professional Regulation ("IDFPR") issued a Cease and Desist Order, commanding Heritage to refrain from unsafe banking practices and violations of laws and regulations. Heritage entered into a consent agreement, amended its loan policies, and created a plan to reduce its concentration of credit in construction and development loans, speculative real estate loans, and other commercial real estate. Nevertheless, in a summary sent to shareholders in January 2009, Bancorp recorded a loss of $21,813,987.00 for the 2008 fiscal year, caused primarily by loan losses. On February 27, 2009, the Illinois Division of Banking, a part of the IDFPR, closed Heritage. The FDIC was appointed receiver. Heritage's assets were later purchased by MB Financial. Plaintiffs were left with worthless shares of Bancorp, now a holding company deprived of its sole asset.

II. Standard of Review

A. Motion to Remand

If a federal district court has original jurisdiction over the matter, a defendant can remove a case from state court to the district court. 28 U.S.C. § 1441; Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). The defendant has the burden of establishing federal jurisdiction once it has been fairly cast into doubt. Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 447 (7th Cir. 2005). When ruling on a motion to remand, "federal courts should interpret the removal statute narrowly, resolving any doubt in favor of the plaintiff's choice of forum in state court." Schur v. L.A. Weight Loss Centers, Inc., 57 F.3d 752, 758 (7th Cir. 2009) (citing Doe v. Allied-Signal Inc., 985 F.2d 908, 911 (7th Cir. 1993)).

B. Motion to Dismiss

The purpose of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is to test the sufficiency of a complaint. Weiler v. Household Finance Corp., 101 F.3d 519, 524 n. 1 (7th Cir.1996). To survive the motion, a complaint need only describe the claim in sufficient detail to give the defendant fair notice of the claim and its basis. Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, (2007). A plaintiff's factual allegations must suggest a plausible, rather than merely speculative, entitlement to relief. Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008); see also Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); Bell Atlantic, 550 U.S. at 555. In ruling on a motion to dismiss, the court must construe ...


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