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First Place Bank v. Skyline Funding

March 4, 2011


The opinion of the court was delivered by: Judge Robert W. Gettleman


Plaintiff First Place Bank filed a seven-count "amended first amended" complaint against a variety of defendants, based on six loans that plaintiff purchased from defendant Skyline Funding, Inc. ("Skyline") and which allegedly failed to comply with terms of a broker agreement between plaintiff and Skyline, in addition to various underwriting requirements and warranties. Count I alleges a breach of contract claim against Skyline. Counts II and III are claims against Skyline and three appraisers (Randall Coleman, Krystal Thompson, and Lefteri Pope), for negligent misrepresentation and fraudulent misrepresentation, respectively. Count IV alleges a claim for fraudulent concealment against all defendants, including borrowers such as Lester Tally, whom plaintiff claims made material misrepresentations on his loan application to Skyline. Count V alleges a negligence claim against Skyline, Michael Klein (Skyline's president), and the three appraisers. Finally, Counts VI and VII assert claims for breach of contract and fraudulent concealment, respectively, against Klein based on an alter ego/piercing the corporate veil theory. Defendants Skyline and Klein, Tally, Coleman, and Thompson have all filed motions to dismiss the claims against them which, for the following reasons, the court grants.


In April 2009, plaintiff entered into a broker agreement ("Agreement") with Skyline, whose primary business is originating residential mortgages. Prior to entering into the Agreement, plaintiff had purchased six mortgages from Skyline.*fn2 Plaintiff alleges that after buying the mortgages from Skyline, it sold them to Fannie Mae,*fn3 although the exhibits attached to the complaint contradict this allegation and indicate that plaintiff sold at least some of the loans to unnamed investors,*fn4 GMAC Mortgage Corporation,*fn5 and Ally Bank.*fn6

In the fall of 2009, Fannie Mae began notifying plaintiff that these loans were not in compliance with Fannie Mae's guidelines (for various reasons, including flawed real estate appraisals, misrepresentation of credit, and undisclosed liabilities), and demanded that plaintiff repurchase the loans.*fn7 (The complaint does not make clear if or when plaintiff in fact repurchased the loans or otherwise incurred losses.) In December of that year, plaintiff in turn demanded that Skyline repurchase some of the nonconforming loans (Rymaruk, Burks, Tally, and Patterson) as required by Section 11 of their Agreement. Skyline failed to respond to plaintiff's demand letter within 15 days, as required by the Agreement. On January 4, 2010, after the deadline had passed, Klein wrote to plaintiff. He explained that Skyline had just dissolved and had been winding down over the preceding several months, and informed plaintiff that no company was to succeed Skyline. Several months later, plaintiff filed the instant lawsuit.


I. Legal Standards

To survive a Fed. R. Civ. P. 12(b)(6) motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citation and internal quotation omitted). The court accepts the complaint's well-pleaded factual allegations as true and draws all reasonable inferences in the plaintiff's favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citations omitted). To provide the defendant with "fair notice of what the claim is and the grounds upon which it rests," id. at 555, the complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). In addition, its allegations must plausibly suggest that the plaintiff has a right to relief and raise that possibility above the "speculative level." Twombly, 550 U.S. at 555, citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, at 235-36 (3d ed. 2004). Documents incorporated by reference into the pleadings and documents attached to the pleadings as exhibits are considered part of the pleadings for all purposes. Fed. R. Civ. P. 10(c).

Allegations of fraud are subject to a heightened pleading standard. Fed. R. Civ. P. 9(b). Fraud must be pled with particularity, which means the complaint must allege the "who, what, when, where and how" of the fraud. DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990). In a multiple-defendant case, "the complaint should inform each defendant of the nature of his alleged participation in the fraud." Vicom, Inc. v. Harbridge Merchant Servs., 20 F.3d 771, 778 (7th Cir. 1994) (citation omitted).

II. Defendants Klein and Skyline's Motion to Dismiss Count I: Breach of Contract

Plaintiff alleges that defendants Skyline and Klein breached the material terms of the Agreement, which Skyline and Klein entered into on April 27, 2009, by selling it six loans that failed to comply with the Agreement's terms and then failing to repurchase those loans. But according to exhibits attached to the complaint, plaintiff purchased each of the six loans before April 2009.*fn8 Plaintiff's complaint fails to allege that the Agreement applies retroactively, and nowhere does plaintiff explain its assertion that these loans are subject to the Agreement. In reviewing a motion to dismiss, the court need not "credit a complaint's conclusory statements without reference to its factual context." Iqbal, 129 S.Ct. at 1954. Here, plaintiff provides no factual backing for its bare assertion that the loans are subject to the Agreement, and this assertion is explicitly undermined by the Agreement's April 2009 date. Thus, even assuming that plaintiff's factual allegations are entirely true, plaintiff has failed to state a plausible claim for breach of contract.

Further, the complaint fails to establish any basis for recovery under a breach of contract claim. Section 11 of the Agreement required Skyline, in the event of a breach, to repurchase the loans within 15 days, and provided that if Skyline was unable to do so, plaintiff would service the loans and bill Skyline for those costs and expenses. The complaint does not, however, allege that plaintiff owned the loans when it demanded Skyline repurchase them, and thus that it would have been possible for Skyline to repurchase the loans. On the contrary, the exhibits attached to the complaint indicate that as of December 11, 2009, plaintiff had sold some of the loans to investors and that some of the properties had already gone to foreclosure. Without alleging that plaintiff had the loans when it made its demand to Skyline, the complaint does not allow the court to conclude that Skyline could have repurchased the loans.Similarly, the complaint lacks factual support for its assertion that plaintiff has suffered losses. The complaint alleges that because Fannie Mae has rejected the loans, plaintiff "has incurred (or in some cases will soon incur) substantial losses in resolving Fannie Mae's reimbursement demands." This assertion, however, is not accompanied by allegations that plaintiff has in fact paid any of Fannie Mae's demands or otherwise suffered any actual loss. Plaintiff has thus failed to state a claim, and the court accordingly dismisses Count I.

Counts II and V: Negligent Misrepresentation and Negligence

Plaintiff's claims against Skyline and Klein for negligent misrepresentation (Count II) and negligence (Count V) are barred by the economic loss doctrine articulated in Moorman Mfg. Co. v. Nat'l Tank Co., 91 Ill.2d 69, 88-89 (Ill. 1982). In Moorman, the Illinois Supreme Court held that a plaintiff "cannot recover for solely economic loss under the tort theories of strict liability, negligence, and innocent misrepresentation." Id. at 91. Because plaintiff ...

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