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A.H. Employee Company, Ltd., Vijay L. Goyal v. Fifth Third Bank and Michael Kozak

March 1, 2012

A.H. EMPLOYEE COMPANY, LTD., VIJAY L. GOYAL, M.D., VINOD K. GOYAL, M.D., AANCHOR HEALTH CENTER, LTD., ACCESS HEALTH CENTER, LTD., ACE HEALTH CENTER, LTD. A C U HEALTH CENTER, ADVANTAGE HEALTHCARE, LTD, AFFILIATED HEALTH GROUP, LTD., AH LASER AESTHETICS, LTD., AMERICAN HEALTH CENTER, LTD., CENTER FOR FAMILY HEALTH CARE S.C., FORESTVIEW MEDICAL CENTER, MICHIGAN AVENUE CENTER FOR HEALTH, LTD; SOUTHWEST PACIFIC LP, FOREST VIEW RIVER LP, ARKANSAS-ILLINOIS LP, ALABAMA-ILLINOIS LP, ATLANTA- ILLINOIS LP, ARIZONA-ILLINOIS LP, KANSAS-ILLINOIS LP, LAKE JEFFERSON LP, 1640 NORTH PARTNERSHIP LP, SOUTHWEST CERMAK LP, AND AA REALTY MANAGEMENT, LTD PLAINTIFFS,
v.
FIFTH THIRD BANK AND MICHAEL KOZAK, INDIVIDUALLY DEFENDANTS.



The opinion of the court was delivered by: James F. Holderman, Chief Judge

MEMORANDUM OPINION AND ORDER

Vijay and Vinod Goyal (collectively, "the Goyals"), who are both physicians and owners of various businesses, filed this lawsuit after their long-standing lending relationship with Fifth Third Bank ("Fifth Third") soured. The Goyals and their business entities contend that Fifth Third and loan officer Michael Kozak (collectively, "Defendants") forced a technical default on one of their loans because of their Indian ancestry and the fact that certain of their businesses perform abortions. In their 10-count amended complaint, the Goyals and their various businesses seek to recover for: (1) discrimination and retaliation under 42 U.S.C. § 1981 (Count I); (2) discrimination and retaliation under the Equal Credit Opportunity Act ("ECOA"), 15 U.S.C. § 1691(a)(1-3) (Count II); (3) a failure to provide a statement explaining the revocation of credit, as required by the ECOA, 15 U.S.C. § 1691(d) (Count III); (4) violation of the Illinois Fairness in Lending Act ("IFLA"), 815 ILCS 120/3 (Count IV); (5) breach of the revolving note for Plaintiff A.H. Employee Company Ltd. ("A.H. Note") (Count V); (6) breach of contract based on the defaults that were triggered by the default of the A.H. Note (Count VI); (7) promissory estoppel (Count VII); (8) intentional misrepresentation (Count VIII); (9) negligent misrepresentation (Count IX); and (10) a violation of the Freedom of Access to Clinic Entrances Act ("FACE"), 18 U.S.C. § 248 (Count X). (Dkt. No. 24, Ex. A. (First Am. Compl.).)

Before the court is Defendants' "Motion to Dismiss Plaintiffs' First Amended Complaint Pursuant to Rules 12(b)(1) and 12(b)(6)." (Dkt. No. 27 (Defs.' Mot.).) For the reasons stated herein, the motion is granted in part and denied in part.

BACKGROUND

The following facts are taken from Plaintiffs' First Amended Complaint and are accepted as true for the purposes of this motion. Vijay Goyal was born in India; Vinod Goyal in Nepal.*fn1

(First Am. Compl. ¶ 4.) Both are of the Hindu religion and are United States citizens. (Id.) Among the variety of businesses he Goyals own are Aanchor Health Center, Ltd., Access Health Center, AA Realty Management, Ltd., A C U Health Center, Ltd., Advantage HealthCare Ltd., Affiliated Health Group, Ltd., American Health Center, Ltd., Center for Family Health Care, S.C., Forestview Medical Center, Ltd., and Michigan Avenue Center for Health, Ltd. (First Am. Compl. ¶ 5). Michigan Avenue Center for Health is a surgical center that offers gynecological care. (Id.) The Goyals also own several limited partnerships: Southwest Pacific LP, Forestview River LP, Arkansas-Illinois LP, Alabama-Illinois LP, Atlanta-Illinois LP, Kansas-Illinois LP, Lake Jefferson LP, and Southwest Cermak LP. (Id. ¶ 6.) Where appropriate, the Goyal-owned businesses will be referred to collectively as the "Goyal entities."

Fifth Third Bank is incorporated in Ohio and headquartered in Tennessee. It operates throughout the Chicago area. (Id. ¶ 7.) Michael Kozak is a vice president at Fifth Third. (Id. ¶ 8.) The Goyals and their businesses had a long-standing relationship with Fifth Third. (Id. ¶ 9.) Beginning in 2003, the Goyal entities borrowed an aggregate of more than $9 million, and never made a late payment to Fifth Third. (Id. ¶ 9.) The Goyal entities had several loans with Fifth Third, including loans to: (1) Southwest Pacific LP with a principal of $557,949.13; (2) Forestview River LP with a principal of $977,701.28; (3) Arkansas-Illinois LP with a principal of 720,000; (4) Alabama-Illinois LP with a principal of $800,000; (5) Atlanta-Illinois LP with a principal of $800,000; (5) Arizona-Illinois LP with a principal of $800,000; (6) Kansas-Illinois LP with a principal of $672,000; (7) Lake Jefferson LP with a principal of $2,046,535; (8) Southwest Cermak LP with a principal of $560,000; (9) 1640 North Partnership LP with a principal of $953,608; (9) American Health Center Ltd. with a principal of $300,000; (10) American Health Center Ltd. with a principal of $100,000; and (11) A.H. Employee Company Ltd. with a principal of $750,000. (Id. ¶ 10.)

The revolving note for the A.H. Employee Company ("A.H. Note") is at the center of this dispute. It was issued on March 17, 2008, and was secured by guaranties executed by the Goyals and the following Goyal entities: (1) Affiliated Health Group, Ltd.; (2) American Health Center, Ltd.; (3) Access Health Center, Ltd.; (4) Center for Family Health Care, S.C.; (5) A C U Health Center, Ltd.; (6) Aanchor Health Center, Ltd.; (7) AA Realty Management, Ltd.; (8) Michigan Avenue Center for Health, Ltd.; (9) Advantage Health Care, Ltd.; and (10) Forestview Medical Center, Ltd. (Id. ¶¶ 11--12.) Fifth Third also demanded that certain of the Goyal entities execute security agreements pledging their assets as collateral, including: (1) Affiliated Health Group, Ltd.; (2) American Health Center, Ltd.; (3) Access Health Center, Ltd.; (4) A C U Health Center, Ltd.; (5) Aanchor Health Center, Ltd., and (6) Michigan Avenue Center for Health, Ltd. (Id. ¶ 13.)

By its terms, the A.H. Note was to automatically renew for a period of one year on the anniversary date of the note, subject to certain conditions. (Id. ¶ 14 , see Dkt. No. 1, Ex. A.)*fn2 On both March 17, 2009, and March 17, 2010, the A.H. Note was automatically renewed. (Id. ¶ 15.) In early 2008, the A.H. Note, and the rest of the Goyal entities' loan portfolio, was transferred to a new loan officer, Kozak. (Id. ¶ 16.) The Goyals had a good relationship with their previous loan officer, Gashi Khadivi. (Id.)

In the spring of 2010, certain Fifth Third personnel, including Kozak, met to discuss the Goyal entities' loan portfolio. (Id. ¶ 17.) Kozak and the other bank officials discussed the Goyals "and issues that related to their personal characteristics, including, without limitation, their religion." (Id.) They also discussed the fact that certain of the Goyal entities performed lawful abortions and expressed their personal religious views that Fifth Third should not lend money to the Goyals as a result of this. (Id.)

Following this meeting, Defendants began to take discriminatory actions towards the Plaintiffs in an effort to undermine Fifth Third's banking relationship with them. (Id. ¶ 18.) This included efforts to force the A.H. Note into a technical default in an effort to force the other cross-collateralized loans in the Goyal entities' loan portfolio into default. (Id.) After the spring 2010 meeting, Fifth Third began to make increasingly burdensome demands for documentation from A.H. Employee Company even though such requests had not been made previously and even though the Goyal entities' financial situation had not changed. (Id. ¶ 19.)

Beginning in August or September 2010, Fifth Third, primarily through Kozak, made false statements as well as confusing and contradictory demands. (Id. ¶ 20.) When Plaintiffs complied with the demands, Defendants made new demands that were increasingly costly and time-consuming. (Id.) On or about Sept. 27, 2010, Vijay Goyal wrote a letter to Kozak complaining about the change in requirements and saying that the Goyals felt they were being discriminated against. (Id. ¶ 21.) He subsequently requested that Kozak be removed as their loan officer. (Id.)

After the Goyals complained of discrimination, Kozak's and Fifth Third's demands became more onerous, including a demand for "reviewed" financial statements for 2011 (made on Jan. 26, 2011) and a demand for "reviewed" financial statements for the year 2010 in order for Fifth Third to extend the A.H. note beyond its March 17, 2011, anniversary date. (Id. ¶ 22.)*fn3

Plaintiffs agreed to these demands. (Id. ¶ 23.) Fifth Third and Kozak misrepresented themselves by, among other things, agreeing that they would grant a 60-day extension to the line of credit if the Goyals would obtain assurance from a third-party accountant that it was preparing reviewed consolidated financial statements. (Id. ¶ 24.) Contradicting its previous representations, on March 21, 2011, Fifth Third sent a notice of default to A.H. Employee Company informing it that it would be in default if the note was not paid off by March 31, 2011, which represented the end of the 10-day cure period. (Id. ¶ 25). On April 7, 2011, Fifth Third sent notices to the Goyal entities identified as guarantors of the A.H. Note in ¶ 13, demanding that they pay off the outstanding balance of the A.H. Note. (Id. ¶ 26.) Then, on April 22, 2011, Fifth Third sent default and acceleration notices to several of the Goyal entities identified as borrowers in ¶ 10, informing them that the default on the A.H. Note was a default under A.H. Employee Company's guaranty of the various entities' loans. (Id. ¶ 27.) The Goyal entities' loans had been in good standing until the April 22, 2011, default notice was issued. (Id. ¶ 28.) On April 27, 2011, A.H. Employee Company paid off the A.H. Note in full, including legal fees. (Id. ¶ 29.) Despite this, Fifth Third continues to maintain that all of the Goyal entities' loans are in default due to the alleged default on the A.H. Note. (Id. ¶ 30.) The Goyals maintain that Defendants have treated them differently than similarly situated customers who do not share their ethnicity, color, or religion. (Id. ¶ 31.)

LEGAL STANDARD

Defendants have moved to dismiss under Rules 12(b)(1) and 12(b)(6). Defendants seek dismissal under 12(b)(1) because, they contend, various plaintiffs lack standing to pursue certain counts. Standing is a determination as to "whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Warth v. Seldin, 422 U.S. 490, 498 (1975). Rule 12(b)(1) motions to dismiss may be either facial or factual attacks on jurisdiction.

Mohamed v. Dorochoff, No. 11 C 1610, 2011 WL 4496228, at *2 (N.D. Ill. Sept. 22, 2011). Facial attacks go to the sufficiency of the pleadings, as compared to factual challenges in which the contention is that the complaint is formally sufficient, but that there is in fact no subject-matter jurisdiction. Id. (citing United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir. 2003)). In the case of a factual challenge, the movant may use affidavits and other materials to support its motion. United Phosphorus, 322 F.3d at 946. Here, Defendants are not explicit about what type of challenge they are pursuing, but their standing challenge is based entirely on the First Amended complaint and various attachments, so it appears to be a facial challenge. Regardless, Plaintiffs bear the burden of showing that standing exists. Id.

To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain sufficient facts, accepted as true, "to state a claim for relief that is plausible on its face." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although a complaint's factual allegations need not be detailed, they must provide more than "labels, conclusions, or formulaic recitations of the elements of a cause of action, and allege enough to raise a right to relief above the speculative level." Ruiz v. Kinsella, 770 F. Supp. 2d 936, 941--42 (N.D. Ill. 2011) (quoting Twombly, 550 U.S. at 555). In ruling on such a motion, the question is whether the facts, accepted as true, "present a story that holds together." Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010).

ANALYSIS

As a preliminary matter, Defendants are correct that Plaintiff's pleading in regard to the Goyal entities is, in some instances, confusing at best. Two of the Goyal entities, Ace Health Center and AH Laser Aesthetics, appear in the caption of the First Amended Complaint but are mentioned nowhere in its body. All claims brought on behalf of these entities are dismissed. Additionally, while the First Amended Complaint alleges that Southwest Pacific LP; Arkansas-Illinois LP; Alabama-Illinois LP; Atlanta-Illinois LP; Arizona-Illinois LP; Kansas-Illinois LP; Lake Jefferson LP; 1640 North Partnership LP; and Southwest Cermak LP had loans with Fifth Third, Defendants argue that it is not clear how these entities are related to the A.H. Note. (Dkt. No. 28 (Defs.'Mem. in Supp., 6--7.)

While the First Amended Complaint is not a model of pleading clarity, it seems that Plaintiffs are alleging that when the A.H. Note went into default, this triggered a default of those entities' loans under the A.H. Employee Co.'s guaranty of the loans (First Am. Compl. ¶¶ 27--29, Dkt. No. 35 (Pl.'s Resp., 14).) Reading the complaint in the light most favorable to the Plaintiffs, the court will assume this to be true for the purposes of ruling on this motion. The court will address each of the arguments raised by Defendants in turn.

1. Plaintiffs' Claims under Section 1981 (Count I)

In Count I, Plaintiffs seek to recover for discrimination and retaliation under § 1981. Defendants challenge Plaintiffs' pleading on two grounds. First, Defendants argue that many of the Plaintiff Goyal entities were merely guarantors of the A.H. Note and as such lack standing under § 1981. ...


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