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Helen Haymer v. Countrywide Bank

July 28, 2011

HELEN HAYMER, PLAINTIFF,
v.
COUNTRYWIDE BANK, FSB; BANK OF AMERICA, N.A.; BAC HOME LOANS SERVICING, LP F/K/A COUNTRYWIDEHOME LOANS SERVICING, LP; VALOR FINANCIAL SERVICES, LLC; MARILYN J. CIESLAK; AND JOHN DOES 1-5, DEFENDANTS.



The opinion of the court was delivered by: Charles P. Kocoras United States District Judge

MEMORANDUM OPINION CHARLES P. KOCORAS, District Judge:

This matter comes before the Court on Plaintiff Helen Haymer's ("Haymer") motion for clarification and/or for a ruling on Count V of our July 15, 2011 Memorandum Opinion. For the following reasons the motion for clarification and/or for a ruling is granted.

BACKGROUND

We briefly restate the facts that are set out in greater detail in our previous opinion. Haymer v. Countrywide, 10 C 5910, 2011 WL 2790172 (N.D. Ill. July 15, 2011) (Kocoras, J.).

This case involves a dispute over a $157,624 loan made to Haymer by Countrywide Bank, FSB ("Countrywide"). Haymer obtained the loan through Valor Financial Services, LLC ("Valor"), an independent brokerage company. According to the allegations of the complaint, which we accept as true for purposes of this motion, Warth v. Seldin, 422 U.S. 490, 501 (1975), Haymer is a 73 year-old African-American disabled widow residing in a home that she purchased with a mortgage loan. Around January 2009, Haymer was seeking relief from an overly burdensome monthly mortgage payment. An acquaintance referred her to Valor for refinancing. On or about January 6, 2009, a representative of Valor met Haymer at her home and assisted her in completing the initial loan application form. Shortly after the meeting, the representative submitted the application to Countrywide. On January 22, 2009, Countrywide approved the loan and the parties closed on the transaction on January 26. After the close of the transaction, Countrywide transferred the loan's servicing rights to BAC Home Loans Servicing, LP ("BAC"), and assigned ownership to Bank of America, N.A. ("BoA").

Haymer alleges that the 2009 transaction was a fraud because, prior to closing, Countrywide and Valor did not provide her with any preliminary disclosures of the loan terms, as required by law. Haymer alleges that the Defendants committed fraud when, during the closing, Valor failed to disclose the specific terms of the loan. Valor's representative arrived with a single set of closing documents, which Haymer signed, and subsequently took all the documents away leaving only two documents that did not disclose the vital terms of the loan. Haymer further claims that Countrywide failed to provide copies of the federal Notice of Right to Cancel form. According to Haymer, Defendants' failure to provide final loan disclosures and other critical closing documents was intended to prevent her from discovering the loan's repayment amounts and to deprive her of her federal right to cancel the loan within three business days.

On September 17, 2010, Haymer filed her initial complaint which was amended on February 16, 2011. Among other violations, the complaint alleges violations of the Truth in Lending Act ("TILA") (Count V), 15 U.S.C. § 1601. Count V is asserted against Countrywide, BoA, and BAC. On July 15, 2011, this Court dismissed Count V in its entirety. On July 18, 2011, Haymer filed a motion for clarification and a motion for a ruling on Count V.

LEGAL STANDARD

To survive a Rule 12(b)(6) motion, a complaint must overcome "two easy-to-clear hurdles:" (1) "the complaint must describe the claim in sufficient detail to give the defendant fair notice of what the claim is and the grounds on which it rests;" and (2) "its allegations must plausibly suggest that the plaintiff has the right to relief, raising that possibility above a speculative level." Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008) (internal quotation marks omitted). Where the well-pleaded facts "do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009) (internal quotation marks omitted). The court must "take the complaint's well-pleaded factual allegations as true and draw all reasonable inferences in [plaintiff's] favor." Abcarian v. McDonald, 617 F.3d 931, 933 (7th Cir. 2010).

DISCUSSION

Haymer asks the Court to: (1) revise our July 15, 2011 ruling dismissing the rescission claim couched in Count V; (2) rule on her refusal-to-rescind damages; (3) clarify wether BAC is a proper defendant in this action; and (4) rule on the election of remedies issue.

I. Rescission Claim

Haymer first asks that we revise our prior opinion dismissing Count V in its entirety because, in their motions to dismiss, Defendants only argued for dismissal of the statutory damages portion of the TILA claim. In Count V of her complaint, Haymer asserts two claims under the TILA: a rescission claim and a statutory damages claim for each party's refusal to rescind. In their briefs, Defendants asked that "the claim for damages [be] limited to rescission." Because Defendants do not argue that ...


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