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Malkoc v. Dorner et al

January 20, 2011

MALKOC
v.
DORNER ET AL



Name of Assigned Judge Virginia M. Kendall Sitting Judge if Other or Magistrate Judge than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT

Status hearing held. For the reasons stated, the Court grants [13] Dorner's and Lawrence's Motion to Dismiss.

O[ For further details see text below.] Docketing to mail notices.

00:08

STATEMENT

Plaintiff Sasha Malkoc ("Malkoc") filed an Amended Complaint against Irene Dorner ("Dorner"), Paul Lawrence ("Lawrence"), HSBC Mortgage Corporation ("HSBC"), and the Law Offices of Codilis and Associates ("Codilis") (together "Defendants"). Dorner and Lawrence move to dismiss. For the following reasons, the Court grants Dorner's and Lawrence's Motion to Dismiss.

Malkoc filed his initial Complaint pro se on June 3, 2010 and Dorner and Lawrence moved to dismiss on July 30, 2010. Malkoc filed an Amended Complaint on August 23, 2010. On September 1, 2010, the Court appointed counsel to represent Malkoc, staying the Motion to Dismiss. On September 22, 2010, Malkoc, though his appointed counsel, voluntarily withdrew his Complaint and his Amended Complaint, rendering Dorner and Lawrence's Motion to Dismiss moot.

On November 22, 2010, appointed counsel for Malkoc appeared before the Court and stated that after reviewing this Court's files as well as the state court's foreclosure files from which this case emanates, he does not believe a good faith claim can be pursued in this Court. Malkoc disagreed with this assessment and Malkoc's appointed attorney withdrew from the case. Malkoc subsequently reinstated his Amended Complaint (also labeled a Temporary Restraining Order) pro se and the Court revived Dorner and Lawrence's Motion to Dismiss.

Here, Malkoc's 100 page Amended Complaint fails to provide a short and plain statement of the claim, in violation of Rule 8. Nonetheless, the Court liberally construes Malkoc's Amended Complaint as raising federal claims stemming from his June 2008 mortgage, which predates the injury he is suffering due to the foreclosure action against him in state court. See Long v. Shorebank, 182 F.3d 548, 556 (7th Cir. 1999) (Rooker-Feldman inapplicable to injuries that precede the state court judgment). Malkoc alleges federal question jurisdiction pursuant to the Truth in Lending Act, 15 U.S.C. §1601 et seq. ("TILA"), the Fair Credit Reporting Act, 15 U.S.C. § 1601 et seq. ("FCRA"), the Fair Debt Collection Practices Act, 15 U.S.C. § 1692k(d) ("FDCPA"), the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601 et seq. ("RESPA"), Mail and Wire Fraud, 18 U.S.C. § 1341, RICO, 18 U.S.C. § 1961, Deprivation of Civil Rights 42 U.S.C. § 1983, Obstruction of Justice 42 U.S.C. § 1985, and the Fourteenth Amendment to the U.S. Constitution.

STATEMENT

Malkoc's TILA claim fails because only a creditor may be liable under TILA. See 15 U.S.C. § 1640(a). Here, Malkoc claims in his Amended Complaint that he is the creditor and that HSBC is the debtor. (Am. Compl. at 2.) Moreover, Malkoc does not allege that Dorner and Lawrence are creditors. Therefore, accepting the facts alleged in Malkoc's Amended Complaint as true-that Malkoc is the creditor-Malkoc's TILA claim is not properly before the Court.

Malkoc's FCRA claim fails because the FCRA only imposes certain duties on consumer reporting agencies. See 15 U.S.C. § 1681(b). Malkoc fails to present any facts or evidence in support of a claim that Dorner, Lawrence, or any of the other Defendants, are consumer reporting agencies. Therefore, Malkoc's FCRA claim is not properly before the Court. Similarly, Malkoc's FDCPA claim fails because the FDCPA only imposes liabilities on debt collectors and Malkoc does not allege in his Amended Complaint that Dorner, Lawrence, or any of the other Defendants are debt collectors. See 15 U.S.C. § 1692k(a).

Malkoc's RESPA claim fails because RESPA is a consumer protection statute that requires a "qualified written request" to trigger the loan servicer's duties to provide a borrower with information. See 12 U.S.C. ยง 2605; Catalan v. GMAC Mortgage Corp., --- F.3d ----, 2011 WL 61627 at *1 (7th Cir. Jan. 10, 2011). Here, Malkoc does not present any evidence in his Amended Complaint that he submitted a "qualified written request" to Defendants or that Dorner and Lawrence are "loan servicers." See, e.g., Khan v. GMAC ...


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