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Hsbc Bank Usa, N.A., As Successor Trustee For the Registered Holders v. Mack Thomas

August 1, 2011

HSBC BANK USA, N.A., AS SUCCESSOR TRUSTEE FOR THE REGISTERED HOLDERS OF ACE SECURITIES CORP. HOME EQUITY LOAN TRUST, SERIES 2005 - HE2, ASSET BACKED PASS-THROUGH CERTIFICATES, PLAINTIFF,
v.
MACK THOMAS, MARY M. THOMAS, BENEFICIAL ILLINOIS, INC. D/B/A BENEFICIAL MORTGAGE CO., MCLEAN COUNTY TREASURER, SECURITY FINANCE CORPORATION OF ILLINOIS, DEFENDANTS.



The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge

E-FILED Tuesday, 02 August, 2011 08:42:07 AM

Clerk, U.S. District Court, ILCD

OPINION & ORDER

Before the Court is Defendants Mack Thomas and Mary M. Thomas' ("Defendants") Motion to Dismiss Plaintiff's Complaint (Doc. 12) and Plaintiff's Response to Defendants' Motion to Dismiss (Doc. 13). For the following reasons, Defendants' Motion to Dismiss (Doc. 12) is DENIED.

BACKGROUND*fn1

Plaintiff initiated this lawsuit by filing its Complaint (Doc. 1) on April 29, 2011, to foreclose on Defendants' mortgage. (Doc. 1 at 1). The mortgage is in default due to the failure of Defendants to pay the monthly installments of principal, interest, and taxes, from 10/01/2010 through the present. (Doc. 1 at 3). There remains an outstanding principal balance of $98,127.66 with interest accruing on the unpaid principal balance at $15.48 per day, plus attorneys fees, foreclosure costs, late charges, advances, and expenses incurred by the Plaintiff as a result of the default. (Doc. 1 at 3).

Beneficial Illinois, Inc., d/b/a Beneficial Mortgage Co., is a party to this action by virtue of a Junior Mortgage between Defendants and Beneficial Illinois, Inc., d/b/a Beneficial Mortgage Co. dated March 23, 1999 in the amount of $19,054.89. (Doc. 1 at 3). McLean County Treasurer is a party to this action by virtue of a county lien entered against Mary Thomas in the amount of $183.16. (Doc. 1 at 3). Security Finance Corporation of Illinois is a party to this action by virtue of a judgment entered against Defendants on March 1, 2001 in the amount of $808.47. (Doc. 1 at 3).

On July 5, 2011, Defendants filed their Motion to Dismiss alleging that Plaintiff failed to comply with 735 ILCS 5/2-606 and the terms of the Promissory Note ("Note") and Mortgage by failing to serve, and attach to the Complaint, a written notice of acceleration and default as conditions precedent to filing a foreclosure suit. (Doc. 12 at 1-4). Defendants further claim that Plaintiff failed to comply with 735 ILCS 5/2 - 606 regarding the notice required by 735 ILCS 5/15 -1502.5 by failing to provide, and attach to the Complaint, the "Grace Period Notice" to the borrowers prior to filing its Complaint for foreclosure. (Doc. 12 at 4-5).

LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a motion to dismiss does not test whether the plaintiff will prevail on the merits, but instead whether the claimant has properly stated a claim upon which relief can be granted. Limestone Dev. Corp. v. Village of Lemont Ill.,520 F.3d 797, 797 (7th Cir. 2008).To state a proper claim, the plaintiff must make a plausible, rather than a merely speculative claim for relief. Id. The plaintiff must describe the claim in sufficient detail to give the defendant fair notice of the claim and the grounds upon which it rests. EEOC v. Concentra Health Serv., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Bell Atlantic v. Twombley, 127 U.S 1955, 1964 (2007)).

The court accepts facts and reasonable inferences in the plaintiff's complaint as true. Tamayo, 526 F.3d at 1081. However, the court is not bound to accept a legal conclusion couched in the plaintiff's complaint as a fact. Ashcroft v. Iqbal, 129 U.S. 1937, 1957 (2009). Furthermore, when the plaintiff's well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint does not sufficiently show that the pleader is entitled to relief "above a speculative level." Concentra, 496 F.3d at 776 (citing Bell Atlantic, 127 U.S at 1965, 1973).

Moreover, while the court should construe the complaint in the light most favorable to the plaintiff, the court should not ignore facts set forth in the complaint that either undermine the plaintiff's claim or give weight to unsupported conclusions of law. Buchanan-Moore v. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009). Therefore, if a court finds that the plaintiff's complaint does not establish a set of facts that support the relief sought, the court must dismiss the complaint. McCormik v. City of Chi., 230 F.3d 319, 325 (7th Cir. 2000).

DISCUSSION

Defendants argue that Plaintiff's claims are founded on one or more written instruments, including the Mortgage and Note, making Plaintiff's Complaint subject to the requirements of ...


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