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Michael Suarez v. Jp Morgan Chase Bank Na

June 1, 2011

MICHAEL SUAREZ, PLAINTIFF,
v.
JP MORGAN CHASE BANK NA, AND BANK OF AMERICA, N.A., DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant JP Morgan Chase Bank's ("Chase") motion to dismiss [41] Counts A-E of Plaintiff's first amended complaint [29] and Defendant Bank of America's ("BOA") motion to dismiss [37] Counts F-H of Plaintiff's first amended complaint. For the reasons stated below, Chase's motion [41] is granted in part and denied in part, and BOA's motion [37] is granted in part and denied in part.

I. Background

The Court takes the following facts from the allegations set forth in Plaintiff's first amended complaint. For purposes of Defendant's motion to dismiss, the Court assumes as true all well pleaded allegations set forth in the complaint. See, e.g., Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618 (7th Cir. 2007).

In February of 2007, Plaintiff Michael Suarez ("Plaintiff") went to the Vernon Hills, Illinois, branch of Chase ("the Chase Vernon Hills branch") to open a checking account. He was nearly 75 years old at the time, and spoke primarily Spanish. Plaintiff received assistance in opening the account from Chase employee Michael DeMarco ("DeMarco"). At the time that Plaintiff opened his account, DeMarco bore the title, "Assistant Vice President and Branch Manager." At some point between February 2007 and August 2007, DeMarco was promoted to "Vice President and Branch Manager" of the Chase Vernon Hills branch.

From the time that Plaintiff opened the account in February 2007 until August 2007, Plaintiff alleges that he did not receive any bank statements from Chase. However, each week after opening his checking account with Chase, Plaintiff came to the Chase Vernon Hills branch to attend to his account. Plaintiff often encountered and spoke with DeMarco on those visits. During one of Plaintiff's visits to the branch, DeMarco recommended that Plaintiff use automatic electronic depositing for his pension and social security checks. On the basis of DeMarco's recommendation, Plaintiff began to use automatic electronic depositing for those funds.

During another of Plaintiff's visits to the Chase Vernon Hills branch, Plaintiff informed DeMarco that he lived on a three-acre lot in Lincolnshire, Illinois. DeMarco asked Plaintiff to show him the "papers" relating to the property. [29, at ¶ 18.] DeMarco and Plaintiff thereafter met to review the property documents. DeMarco learned from his review of the documents that Plaintiff had listed the Lincolnshire property for sale with Coldwell Banker Realty for $1.7 million. Plaintiff's contract with Coldwell Banker was set to expire in July 2007.

In early May 2007, DeMarco met with Plaintiff and told him that Chase was interested in buying Plaintiff's property for a price between $1.6 million and $1.75 million (the aggregate of $1 million immediately upon the sale of the property to Chase and between $200,000 and $250,000 upon Chase's reselling of each of the three lots). DeMarco advised Plaintiff to create a trust account with Chase after the sale of the property in order to guarantee him a ten percent annual income from the sale proceeds. DeMarco introduced Plaintiff to Jason Roberts, a personal banker for Chase with whom Plaintiff presumably would work to set up the trust once the sale was complete.

Soon after informing Plaintiff of Chase's purported interest in buying the Lincolnshire property, DeMarco informed Plaintiff that the sale could not be finalized unless Plaintiff terminated his contract with Coldwell Banker. Plaintiff negotiated a deal with Coldwell Banker in which their contract would expire in early June 2007, approximately one month earlier than the original termination date. Plaintiff informed DeMarco of the new termination date of his contract with Coldwell Banker.

Sometime between early May and early June, DeMarco met with Plaintiff to tell him that Chase would be unable to buy or resell the Lincolnshire property unless Plaintiff improved the property by removing unsalable wetlands. Plaintiff informed DeMarco that his retirement income was insufficient for him either to continue residing on the Lincolnshire property or to do the earth-moving that DeMarco claimed was necessary to sell the property. DeMarco suggested that Plaintiff secure a line of credit on his property in order to make the improvements, and Plaintiff accepted DeMarco's suggestion.

DeMarco prepared an application for a $250,000 line of credit for Plaintiff, allegedly to permit Plaintiff to borrow the funds necessary to make improvements to the Lincolnshire property. DeMarco requested that Plaintiff meet with him prior to June 8, 2007, at the Chase Vernon Hills branch, to sign the application document. During their meeting, DeMarco informed Plaintiff that, as a matter of policy, Chase was essentially conflicted out of issuing Plaintiff the line of credit to improve the Lincolnshire property because Chase intended to buy the property from Plaintiff. Therefore, DeMarco explained, Plaintiff should obtain a line of credit from BOA. DeMarco "rushed" Plaintiff through the sizeable credit application document and told him to sign the document in numerous places. [29, at ¶ 34.] Plaintiff alleges that he was confused during the meeting, but, on DeMarco's advice, signed the document.

Both Plaintiff and DeMarco met with either Nirmal Patel or Dhara Patel or both at the Buffalo Grove branch of BOA on June 8, 2007, to close on the line of credit based on the document that DeMarco had prepared. Unbeknownst to Plaintiff at the time, the document designated the Chase Vernon Hills branch as Plaintiff's address. Plaintiff alleges that either Nirmal Patel or Dhara Patel or both were aware that DeMarco was a branch manager for Chase, yet neither they nor anyone else at BOA inquired into the propriety of DeMarco's representation of Plaintiff's interests or designation of the Chase Vernon Hills branch's address as Plaintiff's address.

Also in June of 2007, BOA created a joint checking account in which both DeMarco and Plaintiff were designated as account-holders. Plaintiff alleges that bank statements pertaining to the BOA checking account were sent to DeMarco at DeMarco's personal address, and that Plaintiff never received any statements.

In mid-August 2007, Plaintiff learned that $245,000 had been disbursed from the BOA line of credit to DeMarco by way of a cashier's check that was sent to DeMarco's home address. Also around that time, Plaintiff first learned that DeMarco had designated the Chase Vernon Hills branch address as Plaintiff's address. Plaintiff alleges that he ...


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