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Rochelle Mcintosh v. Hsbc Bank Usa

July 23, 2012


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


Plaintiff Rochelle McIntosh ("McIntosh") brought suit against HSBC Bank USA, N.A. ("HSBC") as the owner of her apartment building, alleging that HSBC failed to maintain heat or hot water at the premises from the time it assumed possession in October 2010 through April 21, 2011. That suit was removed from Cook County Circuit Court to this court in October 2011 on the basis of diversity jurisdiction. McIntosh now seeks leave to amend her complaint to add additional parties, one of which is non-diverse, and asks that I remand this case back to the Cook County Circuit Court. For the reasons explained below, the motion is granted.


According to the allegations of her proposed Third Amended Complaint ("TAC") (Dkt. No. 20-5), McIntosh was a tenant at 1643 W. Marquette Road, of which HSBC became the legal owner pursuant to an order of possession entered by the Cook County Circuit Court on Oct. 20, 2010. (TAC, ¶¶ 7, 9.) In addition to HSBC, the TAC includes claims against several new defendants: Ocwen Loan Services, LLC ("Ocwen"), Altisource Portfolio Solutions, Inc., Altisource Solutions, Inc., (the "Altisource Defendants") Optimum Property Preservation, LLC ("Optimum"), and IH Professional Services, LLC ("IHPS"). McIntosh is a resident of Illinois, and IHPS is a limited liability company organized under Illinois law, the sole known member of which is an Illinois resident. (Id. at ¶¶ 1,6.)*fn1 The addition of claims against IHPS, then, would destroy diversity.

McIntosh alleges that HSBC used Ocwen to service the mortgage loan, and that Ocwen was responsible for the physical maintenance of the property. (Id. at ¶ 11.) Ocwen, in turn, used the Altisource Defendants to perform "property preservation services." (Id. at ¶ 12.) The Altisource Defendants hired IHPS to actually provide those services, respond to tenant complaints, and comply with all applicable laws and regulations. (Id. at ¶ 13.) IHPS performed this role beginning in September 2010 and until early 2011, when Altisource hired Optimum to provide those services at the property. (Id. at ¶¶ 14--15.)

In early July 2010, McIntosh returned home after being hospitalized for surgery and discovered she had no hot water. (Id. at ¶ 16.) As the building was then in foreclosure, she contacted HSBC's attorney, but was told that HSBC was not responsible for fixing utility problems at the building. (Id. at ¶ 18.)

Subsequent to the confirmation of sale, McIntosh called "B. Hanson/Bank of America Field Services," the person identified on a notice posted at the property, and complained multiple times about the lack of heat and hot water. (Id. at ¶ 20.) After no action was taken, an attorney representing McIntosh sent a letter to HSBC informing it of the lack of heat and hot water at the building and of McIntosh's serious health problems. (Id. at ¶ 21.) Again, no action was taken. (Id. at ¶ 22.) McIntosh also made numerous calls to the City of Chicago from July 2010 through March 2011, and in August 2010, HSBC and the original landlords were served with an administrative complaint for failure to supply hot water as required by the Chicago Residential Landlord Tenant Ordinance. (Id. at ¶ 24.) The original landlords, but not HSBC, were found liable. (Id. at ¶ 25.)

McIntosh alleges that on Sept. 29, 2010, IHPS carried out an inspection at the building under the direction of HSBC, Ocwen, and the Altisource defendants. (Id. at ¶ 27.) The inspection indicated that the property was occupied and secure, but listed "NA" in regard to the status of the utilities, and indicated that no maintenance was recommended. (Id. at ¶¶ 28--29, see Ex. E to TAC.) None of the Defendants took any steps reconnect the utilities. (Id. at ¶ 29.)

In January 2011, a city inspector issued a report noting that there was no heat or hot water at the building, and an administrative suit was filed against HSBC in January 2011. (Id. at ¶¶ 32--33.) HSBC ultimately was found liable for failing to furnish heat and hot water to the building. (Id. at ¶ 35, see Ex. H to TAC.) None of the Defendants took any steps to remedy the problem, however, and McIntosh lacked heat and hot water throughout the entire winter of 2010--11. (Id. at ¶¶ 36--38.)

McIntosh experienced increased utility bills because she had to use space heaters and her oven to keep her apartment warm. (Id. at ¶ 38.) She also suffered physically because she was unable to properly clean her wounds from the surgery, which impaired her ability to heal and caused her permanent injury. (Id. at ¶ 42.) McIntosh did not have heat or hot water until late April 2011, after her attorneys obtained a temporary restraining order to restore her heat. (Id. at ¶ 45.)

McIntosh contends that IHPS was the party perhaps most directly responsible for negligently maintaining her building because it was IHPS that originally inspected the property for HSBC on Sept. 29, 2010, after the start of the official heat season in Chicago, and indicated that no maintenance was required. As such, IHPS' participation in this suit is necessary for the sake of efficiency of the parties and the court, she contends.

She also points to HSBC's affirmative defenses, in which it asserted, in relevant part:

Any injuries, damages, or other violations were the direct and proximate result of the acts, omissions, negligence, fault or breach of persons and/or parties other than HSBC that caused or contributed to cause all, or a portion, of the claimed damages of liability, barring recovery or liability against HSBC in whole or in part. . . . HSBC is not liable for the conduct of third parties. (Dkt. No. 5, at 8.)

HSBC responds that joinder of IHPS is improper because it would destroy diversity jurisdiction, and IHPS is not ...

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