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Tammy Jo Long, et al v. One West Bank

August 24, 2011

TAMMY JO LONG, ET AL., PLAINTIFFS,
v.
ONE WEST BANK, FSB, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Samuel Der-Yeghiayan United States District Court Judge

MEMORANDUM OPINION

SAMUEL DER-YEGHIAYAN, District Judge

This matter is before the court on Defendants OneWest Bank, FSB, Mortgage Electronic Registration Systems, Inc. (MERS), and Deutsche Bank National Trust's (Deutsche)(collectively referred to as "Servicing Defendants") motion to dismiss and on Defendants Albertelli Law Firm, P.C. and John Lippincott's (collectively referred to as "Albertelli Defendants") motion to dismiss. For the reasons stated below, Servicing Defendants' motion to dismiss is denied in part as moot and granted in part and Albertelli Defendants' motion to dismiss is denied as moot.

BACKGROUND

Plaintiff Tammy Jo Long (Long) allegedly entered into a residential mortgage loan agreement in 2005 with Taylor, Bean, & Whitaker (TBW) relating to a loan (Loan) for property located in Savannah, Georgia (Property). The Loan allegedly included a promissory note in the amount of $999,900.00 (Note) and Long allegedly pledged the Property as security for the Loan in a security deed (Security Deed). Plaintiff Castle Home Builder's, Inc. allegedly has invested in improving the Property and has a claim against the Property. Plaintiffs acknowledge that they have not paid the amounts owed on the Loan. Plaintiffs claim that despite requests from them, Defendants have failed to identify the current lawful owner and holder of the Note and Security Deed. Plaintiffs contend that Long intends to pay the amounts owed in full, but has only failed to do so because of a lack of clarity as to the proper owner of the Note and Security Deed.

Deutsche allegedly represented that it is the owner of the Note in non-judicial foreclosure proceedings on the Property in Georgia. Plaintiffs contend that TBW declared bankruptcy and was incapable of transferring any interests in the Note to Deutsche. Plaintiffs also contend that Deutsche used a fabricated copy of the Note and a fabricated Assignment of Security Deed (Assignment of Deed) to support a foreclosure action on the Property. Plaintiffs also allege that the assignment violated the Pooling and Servicing Agreement (PSA), which is the trust agreement that allegedly governs the actions of Deutsche as trustee and all parties that participate in the assignment of mortgage loans into the trust for which Deutsche is a trustee. Plaintiffs also contend that Defendants have engaged in unlawful collection activities and have submitted unsubstantiated negative information about Plaintiffs relating to the disputed debt.

Plaintiffs include in the amended complaint claims alleging violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq. (Count I), claims alleging unfair and deceptive acts and practices in violation of the Illinois Uniform Deceptive Trade Practices Act, 815 ILCS 510/1 et seq. (Count II), claims alleging unfair or deceptive acts or practices in the conduct of trade or commerce in violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (Fraud Act), 815 ILCS 505/1 et seq. (Count III), claims alleging false and misleading communications to credit reporting agencies in violation of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (Count IV), and a wrongful foreclosure claim (Count V), and a quiet title claim (Count VI). The Servicing Defendants and Albertelli Defendants have filed motions to dismiss.

LEGAL STANDARD

In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) (Rule 12(b)(6)), a court must "accept as true all of the allegations contained in a complaint" and make reasonable inferences in favor of the plaintiff. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)(stating that the tenet is "inapplicable to legal conclusions"); Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002). To defeat a Rule 12(b)(6) motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949 (internal quotations omitted)(quoting in part Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint that contains factual allegations that are "merely consistent with a defendant's liability . . . stops short of the line between possibility and plausibility of entitlement to relief." Iqbal, 129 S.Ct. at 1949 (internal quotations omitted).

DISCUSSION

I. Voluntary Dismissal of Claims

On August 5, 2011, Plaintiffs filed a stipulation to voluntarily dismiss all claims brought against Albertelli Defendants. Therefore, the court dismisses all claims against Albertelli Defendants and the motion to dismiss is stricken as moot.

Plaintiffs also indicate in response to Servicing Defendants' motion to dismiss that they agree to dismiss certain claims. Plaintiffs, in responding to the summary of the arguments presented by Servicing Defendants, seek the voluntary dismissal of claims in Counts II, IV, and VI without prejudice. (Ans. Dis. 8-9). Such claims are dismissed without ...


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