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Reginald T. Hardaway, Sr. v. Cit Group/Consumer Finance Inc.

August 1, 2011

REGINALD T. HARDAWAY, SR. PLAINTIFF,
v.
CIT GROUP/CONSUMER FINANCE INC., KIMBERLY J. WEISSMAN,
DEFENDANTS.



The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff filed a pro se complaint against CIT Group/Consumer Finance Inc. ("CIT"),*fn1 the entity he claims serviced a loan secured by his home, and Kimberly Weissman, an attorney who represented that entity in connection with the foreclosure of plaintiff's home. Plaintiff asserts numerous violations of constitutional, statutory, and state law arising out of the foreclosure action. Defendant CIT has moved to dismiss all claims against it pursuant to Fed. R. Civ. P 12(b)(6). The motion is granted because, as discussed below, even under the liberal pleading standard applicable to pro se plaintiffs, see Erickson v. Pardus, 551 U.S. 89, 94 (2007), the factual material plaintiff alleges to support his claims does not, at least as to this defendant, "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).*fn2

I.

The story that emerges from plaintiff's complaint and supporting affidavit (though these documents conflict with one another in certain details) is that on September 14, 2006, plaintiff and his wife (who is not named as a plaintiff in this suit, but who I presume plaintiff means to include in his references to "plaintiffs" or "plaintiff(s)") refinanced their home in an agreement with Accredited Home Lender, Inc. Their mortgage contained an interest rate of 8.99 percent for thirty-five months beginning November 1, 2006, and a balloon payment of $350,351.08. Plaintiff states that he and his wife were unaware that "the Broker was initiating this type of loan, which violated the Good Faith Estimate, per Housing and Urban Development."

Plaintiff alleges that he "entered hardship on or after February, 2008."*fn3 In a letter dated July 10, 2008, and addressed to plaintiff's wife (which plaintiff attaches to his complaint and states that he received), defendant Weissman stated that her law firm had been retained by CIT to collect the entire balance due on the plaintiff's mortgage. The letter explained, among other things, that under federal law, plaintiff had a right to dispute the validity of the claimed debt. The letter further explained, "[i]f you do dispute it, by notifying the undersigned in writing to that effect, I will, as required by law, obtain and mail to you proof of the debt." Complaint, p. 52. Plaintiff acknowledges in his complaint that he did not exercise his right to dispute the debt, claiming he did not know how to do so.*fn4

Weissman's July 10, 2008, letter also stated that to avoid litigation, plaintiff could, within ten days of the date of the letter, either pay an identified portion of the balance, or contact Weissman at the number provided on her letterhead "in order to work out arrangements for payment." Plaintiff does not claim to have contacted, or attempted to contact, Weissman at any time thereafter, but he states that he "made contact with the defendant CIT on July 16, 2008," and that he was "informed to fax income information" and a "letter of hardship." Plaintiff does not state whether he faxed the information requested. He alleges, however, that "for months, the plaintiff(s) were unsuccessful in making contact with the defendant [by telephone],"*fn5 and that they "left unreturned m[e]ssages with the defendant." Complt., at 4.

On September 30, 2008, CIT initiated foreclosure proceedings against plaintiff. Plaintiff states that he "suffered serious emotional distress from his interactions with CIT, and that it was reasonably foreseeable that such distress would have resulted from the company's conduct." In particular, plaintiff alleges that in October of 2008, he was "suddenly stricken with a severe voice problem" which negatively affected his employment, causing a further loss of income.

On February 10, 2009, defendants filed a motion for a judgment of foreclosure. Plaintiff alleges that in or around June of 2009, he was "informed that CIT wasn't able to modify [his] mortgage and that [CIT] 'didn't participate in the bailout funds from the Obama Administration and wasn't under any kind of direct order form the government to help the plaintiff.'" Cmplt., at 4. Plaintiff twice states that CIT's proffered reason for declining to modify his loan was a "shortage in income." Id., at 4 ("CIT after reviewing the plaintiff(s) income stated that they didn't qualify for any workout due to shortage in income"), 38 ("After being told of a shortage in income, we added our son's income to the formula. [CIT] repeated to state that we did not have enough income.").

A judicial sale of plaintiff's property was held, following a public notice of sale, on June 3, 2009. Then, "[l]ater in 2009, around October, the Weismann (sic) Law Firm left foreclosure papers ON OUR DOOR STAIRS. The papers, apparently, were delivered late at night and were left on the stairs where they could have gotten wet or blown away. Thereafter, we attended court where Judge Jesse Reyes ruled for the foreclosure and for us to vacate the properties by October 13, 2009." Cmplt., at 38.*fn6

II.

While plaintiff's complaint is replete with references to various sources of law, it is strikingly short on facts to substantiate a claim under any of them. The complaint opens with a reference to the Fourteenth Amendment, then states that the suit is "brought pursuant to the Fair Housing Act of 1968." The next paragraph, set off with the caption, "Discrimination under Fair Housing Act," makes passing reference to that statute, then to the Illinois Human Rights Act, and then to the National Housing Act, before stating that the case "arises" under the Fair Debt Collection Practices Act ("FDCPA"). This paragraph contains no factual allegations, but instead offers plaintiff's interpretation of obligations imposed by the various statutes he names.

The next two paragraphs are difficult to parse. They identify "Deceptive Business Practice[s]" (presumably the Illinois Consumer Fraud and Deceptive Business Practices Act), and the Truth In Lending Act, state that CIT "refused to engage in loss mitigation" in violation of "Section 230(a) of Title II of the National Housing Act," then conclude that CIT "acted with prejudice in conducting business with the plaintiffs in a deceptive manner upon collecting a debt."

The complaint proceeds to identify four discrete counts, which are captioned, in order, "Truth [in] Lending Violations," "Discrimination Under Fair Housing Act," "Breach of Good Faith and Fair Dealing," and "Illegal Foreclosure Under Uniform Commercial Code." Each of these counts is peppered with references to various statutes, including, in addition to those mentioned above, the High Risk Home Loan Act, and the "Anti-Predatory Act." The factual material summarized above is spread across these four counts.

The penultimate section of the complaint, titled "Violations," contains a list of constitutional and statutory authority, including: 1) the Truth in Lending Act, 2) the Home Ownership and Equity Protection Act ("HOEPA"), 3) the Illinois Consumer Fraud and Deceptive Business Practice Act, 4) the Fair Debt Collection Practices Act, 5) the Illinois Mortgage Foreclosure Law, 735 ILCS 5/15-1602, 6) the Fourteenth Amendment, 7) the Illinois Human Rights Act ("IHRA"), 8) the Fair Housing Act ("FHA") and the National Housing Act, 9) the Real Estate Settlement Procedures Act, ...


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