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Federal Deposit Insurance Corp., As Receiver For Ravenswood Bank, An v. Edward Parzygnat

August 23, 2011

FEDERAL DEPOSIT INSURANCE CORP., AS RECEIVER FOR RAVENSWOOD BANK, AN ILLINOIS BANKING CORPORATION, PLAINTIFF,
v.
EDWARD PARZYGNAT, ANNETTE PARZYGNAT, HEIDI WEITMANN COLEMAN, AND HEIDI WEITMANN COLEMAN, P.C., DEFENDANTS.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Federal Deposition Insurance Corporation ("FDIC"), as receiver for Ravenswood Bank ("Bank"), filed a Second Amended Complaint against Defendants Edward and Annette Parzygnat ("the Parzygnats") and Heidi Weitmann Coleman ("Coleman"), both in her personal capacity and as the sole shareholder, officer, and director of Heidi Weitmann Coleman, P.C., alleging tort claims resulting from a scheme to defraud the Bank into extending a mortgage loan to an unqualified buyer. The FDIC asserts the following claims against Coleman: (1) conspiracy to commit fraud (Count II); (2) aiding and abetting fraud or acting in concert to commit fraud (Counts III-IV); and (3) tortious interference with a mortgage contract between Tomasz Grzeszczak ("Grzeszczak") and the Bank, or in the alternative, aiding and abetting or acting in concert with Grzeszczak to breach the contract (Counts V-VII). Coleman moves to strike Counts III, IV, VI, and VII as redundant. Coleman also moves to dismiss Counts II and V alleging conspiracy to commit fraud and tortious interference with contract. For the following reasons, the Court grants in part and denies in part Coleman's Motion to Strike and denies Coleman's Motion to Dismiss.

BACKGROUND

The following facts are taken from the FDIC's Second Amended Complaint and are accepted as true. See Murphy v. Walker, 51 F.3d 714, 717 (7th Cir. 1995).

I. The Alleged Scheme

Plaintiff FDIC was appointed as receiver of Ravenswood Bank ("Bank") on August 6, 2010.

(Second Am. Compl. ¶ 2.) The FDIC brings this action under 12 U.S.C. § 1811 to recover losses that the Bank sustained from an alleged conspiracy between the buyer and seller to misrepresent the nature of a real estate transaction to induce the Bank to issue a mortgage loan to the buyer. (Id. ¶ 1.)

The Parzygnats purchased the piece of property at the center of this real estate transaction ("Property") in March 1997. (Id. ¶ 15.) The Property was a two-story building, with two residential apartments on the second floor and a commercial unit on the first floor. (Id.) The Parzygnats lived on the Property and operated a business out of the commercial unit. (Id. ¶ 16.) In March 2004 the Parzygnats entered into a ten-year commercial lease with Irving Deli, an entity owned by Cezary Lapa ("Lapa"). (Id. ¶¶ 18, 19.) Under the lease, Lapa had first option to buy the Property. (Id. ¶ 19.)

Irving Deli and Lapa failed to make timely rent payments to the Parzygnats, who relied on the payments to pay off a mortgage loan for a different piece of property. (Id. ¶ 20.) To increase cash flow, in 2005 the Parzygnats decided to sell the Property. (Id.) Lapa tried to exercise his first option to buy but could not obtain financing. (Id. ¶ 21.) This did not deter him; he recruited Grzeszczak to act as a nominee buyer to purchase the Property on his behalf. (Id.) Grzeszczak, who neither intended to contribute funds to purchase the Property nor intended to buy the Property for himself, agreed to act as Lapa's nominee buyer. (Id. ¶ 22.) On the buyers side of the transaction, Lapa and Grzeszczak recruited Jacob Fine ("Fine") to be their mortgage broker and Martin Ptasinski ("Ptasinski") to be their attorney. (Id. ¶¶ 23, 24.) The Parzygnats and their attorney, Coleman, comprised the sellers side of the deal. (Id. ¶¶ 6-7, 25.)

After negotiating, the buyers and sellers arrived at a purchase price of $525,000. (Id. ¶ 27.) The Parzygnats and Coleman terminated the deal in October 2005, after the closing had been extended multiple times, because Grzeszczak and Lapa were unable to obtain a mortgage loan commitment. (Id. ¶ 30.) This failure did not discourage the Parzygnats and Grzeszczak to try again to finalize the sale of the Property a few months later. (Id. ¶ 31.) In December 2005 the Parzygnats and Grzeszczak entered into a second contract for the purchase and sale of the same Property ("Sham Sale Contract"). (Id.) This time, though, the Parzygnats and Grzeszczak agreed on an increased purchase price of $625,000. (Id.) The Sham Sale Contract provided Grzeszczak with a $120,000 credit for making improvements to the Property; this $120,000 was also the exact amount of the incremental increase between the first failed purchase contract and the second Sham Sale Contract. (Id. ¶ 86.) The Sham Sale Contract also required Grzeszczak to deposit $10,000 in earnest money with Coleman and obtain a $500,000 mortgage loan. (Id. ¶ 31.)

In December 2005 Fine presented the Sham Sale Contract to the Bank and requested the mortgage loan for Grzeszczak. (Id. ¶ 42.) At this time Fine did not notify the Bank that Grzeszczak was Lapa's nominee buyer, Lapa was the true buyer in interest, and neither Grzeszczak nor Lapa deposited the $10,000 earnest money as required. (Id.) Fine also withheld from the Bank the provision that gave Grzeszczak a $120,000 credit toward the purchase price and the fact that the mortgage loan proceeds were the only source of funding for the sale. (Id.) Also, in response to the Bank's request, Grzeszczak submitted false personal financial statements by overstating his assets and inflating by at least $3,300 a month the rental payments of the Property's tenants. (Id. ¶¶ 46, 47, 49.) The Bank relied on these false misrepresentations in approving a $483,750 loan ("Bank Loan"). (Id. ¶ 50.) The Bank approved the loan on the condition that it would have a first mortgage lien on the Property, and the Parzygnats, Grzeszczak, Lapa, Ptasinski, Fine, and Coleman all knew about this condition. (Id. ¶ 51.)

The $483,750 loan and the $120,000 "improvements" credit did not fully cover the purchase price of the Property; there was a $55,000 shortfall. (Id. 53.) On the morning of the closing, the Parzygnats agreed to Lapa and Grzeszczak's request for seller financing in the amount of $55,000 ("Grzeszczak Mortgage"). (Id. ¶ 54.) As a purchase money mortgage, the Grzeszczak Mortgage took priority over the Bank's mortgage, in violation of the Bank Loan agreement between Grzeszczak and the Bank. (Id. ¶¶ 54-56.) Coleman created the Grzeszczak Mortgage and never disclosed it to the Bank before the closing. (Id. ¶ 56.)

Coleman drafted the closing statement, which was sent to the closing agent. (Id. ¶ 57.) The draft misleadingly stated that the $120,000 credit was "funds advanced for restoration." (Id.) Coleman also mislabeled the purchase money mortgage as "funds advanced by the seller." (Id.)

At the closing on May 22, 2006, all parties were present except the Bank. (Id. ¶ 58.) An agent of the title company prepared, and Coleman approved, a final Closing Statement. (Id. ¶ 61.) The final Closing Statement incorporated the same misrepresentations in the draft that Coleman prepared: it noted the $120,000 buyer credit, but incorrectly labeled the $55,000 purchase money mortgage as "funds advanced to seller." (Id. ¶ 61.) Additionally, the Closing Statement did not provide for an earnest money deposit credit. (Id.) The Closing Statement also reflected that the Bank Loan was the only source of payment for the transaction; the Parzygnats used the funds to satisfy their existing mortgage debt and received $92,958.10 in cash. (Id. ¶ 62.)

At closing, Coleman, the Parzygnats, and the buyers failed to provide the Bank with a copy of the Closing Statement. (Id. ¶ 66.) After the closing, Grzeszczak defaulted on his mortgage payments to the Bank and fled the country. (Id. ¶¶ 71-72.) The Bank then initiated foreclosure ...


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