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Sheree Butler v. Fdic

May 23, 2012

SHEREE BUTLER
v.
FDIC, ET AL.



Name of Assigned Judge or Magistrate Judge Blanche M. Manning Sitting Judge if Other than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT

The motion to dismiss filed by defendants RoundPoint Servicing Corp. and Mortgage Electronic Registration Systems, Inc. [12-1] is denied in part and granted in part as detailed in this order. Butler is granted leave to file an amended complaint consistent with this order no later than June 14, 2012. The status hearing set for June 5, 2012, is reset to July 12, 2012, at 11:00 a.m.

O [ For further details see text below.] Docketing to mail notices.

00:00

STATEMENT

Plaintiff Sheree Butler has sued the defendants alleging violations of the Truth in Lending Act (Count I), see 15 U.S.C. § 1601, et seq., as well as the Real Estate Settlement Procedures Act (Count II), see 12 U.S.C. § 2605(e). Defendants RoundPoint Mortgage Servicing Corp. and Mortgage Electronic Registration Systems, Inc. have moved to dismiss the claims against them. Specifically, they seek the following: (1) dismissal of Count I because Butler failed to allege in her complaint that she was ready and able to tender the principal of the loan she received; (2) dismissal of her claim in Count I regarding a purported waiver of her right to rescind because the waiver did not adversely affect her; (3) dismissal of Count I against RoundPoint because, as a loan servicer, it is not liable under the Truth in Lending Act; and (4) dismissal of Count II because she has failed to allege actual damages under the Real Estate Settlement Procedures Act.

For the reasons that follow, the court grants the motion to dismiss Count II without prejudice, and denies the remainder of the motion.

STANDARD OF REVIEW

A complaint need only contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The Seventh Circuit explained that this "[r]ule reflects a liberal notice pleading regime, which is intended to focus litigation on the merits of a claim rather than on technicalities that might keep plaintiffs out of court." Brooks v. Ross, 578 F.3d 574, 580 (7th Cir. 2009) (internal quotations omitted).

However, a complaint must contain "enough facts to state a claim to relief that is plausible on its face" and also must state sufficient facts to raise a plaintiff's right to relief above the speculative level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007). In Ashcroft v. Iqbal, the Supreme Court stated that a claim has facial plausibility "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

The court is neither bound by the plaintiff's legal characterization of the facts, nor required to ignore facts set forth in the complaint that undermine the plaintiff's claims. See Scott v. O'Grady, 975 F. 2d 366, 368 (7th Cir. 1992). Nevertheless, "in examining the facts and matching them up with the stated legal claims, we give 'the plaintiff the benefit of imagination, so long as the hypotheses are consistent with the complaint.'" Bissessur v. Ind. Univ. Bd. of Trs., 581 F.3d 599, 603 (7th Cir. 2009).

ANALYSIS

Defendants RoundPoint Mortgage Servicing and Mortgage Electronic Registration Systems seek the dismissal of the Truth in Lending Act claims against each of them alleged in Count I, as well as the Real Estate Settlement Procedures Act ...


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