United States District Court, N.D. Illinois, Eastern Division
Maxine CARTHAN-RAGLAND and Warren G. Ragland, Plaintiffs,
STANDARD BANK AND TRUST CO., GMAC Mortgage, LLC, and Mortgage Electronic Registration Systems, Inc., Defendants.
[Copyrighted Material Omitted]
Lloyd J. Brooks, The Brooks Law Firm, Homewood, IL, for Plaintiffs.
Christopher S. Naveja, Mark E. Enright, Katelyn Rose Letizia, Arnstein & Lehr LLP, Jeffrey Edmund Jamison, Richard Eric Gottlieb, Dykema Gossett PLLC, Chicago, IL, for Defendants.
MEMORANDUM OPINION AND ORDER
GARY FEINERMAN, District Judge.
Maxine Carthan-Ragland and Warren G. Ragland commenced this lawsuit by filing a pro se complaint against Standard Bank & Trust Co., GMAC Mortgage, LLC, and Mortgage Electronic Registration Systems, Inc. (" MERS" ), seeking damages for alleged violations of the Racketeer Influenced and Corrupt Organizations Act (" RICO" ), 18 U.S.C. § 1961 et seq., and the common law of fraud. Doc. 1. The court dismissed the complaint without prejudice under Federal Rule of Civil Procedure 12(b)(6), and gave Plaintiffs a chance to replead. 2012 WL 1658244 (N.D.Ill. May 11, 2012). Plaintiffs retained counsel and
filed an amended complaint, which drops the RICO and fraud claims and instead seeks relief under the Truth in Lending Act (" TILA" ), 15 U.S.C. § 1601 et seq. Doc. 42. The claims against GMAC have been stayed due to its bankruptcy filing. Docs. 46, 48. MERS and Standard have moved to dismiss the amended complaint's claims against them. Docs. 49, 52. The motions are granted, and the claims against MERS and Standard are dismissed with prejudice.
The amended complaint's well-pleaded factual allegations, though not its legal conclusions, are assumed to be true on a Rule 12(b)(6) motion. See Munson v. Gaetz, 673 F.3d 630, 632 (7th Cir.2012); Reger Dev., LLC v. Nat'l City Bank, 592 F.3d 759, 763 (7th Cir.2010). In evaluating a motion to dismiss, the court must consider " the complaint itself, documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice." Geinosky v. City of Chicago, 675 F.3d 743, 745 n. 1 (7th Cir.2012). The court also must consider additional facts set forth in the plaintiff's opposition brief or supported by attachments to the brief, so long as those facts " are consistent with the pleadings." Ibid. To the extent an exhibit attached to or referenced by the complaint contradicts the complaint's allegations, the exhibit takes precedence. See Forrest v. Universal Sav. Bank, F.A., 507 F.3d 540, 542 (7th Cir.2007). The following sets forth the facts as favorably to Plaintiffs as permitted by the amended complaint and other materials that may be considered on a Rule 12(b)(6) motion.
On August 25, 2008, Plaintiffs executed a note and mortgage on their home to secure a $151,235 refinancing loan from Standard. Doc. 42 at ¶¶ 5, 11-12. After the closing, GMAC was assigned some of Standard's interest in the loan, and MERS was assigned the mortgage lien. Id. at ¶¶ 7, 9. On August 24, 2011, almost three years to the day after they executed the note and mortgage, Plaintiffs filed this suit against Standard, MERS, and GMAC. Doc. 1. The original complaint purported to state only RICO and common law fraud claims; as Plaintiffs admit, that complaint did not " expressly assert[ ]" a claim for rescission under TILA. Doc. 56 at 1. The court dismissed the original complaint without prejudice and allowed Plaintiffs to file an amended complaint, which they did on May 31, 2012. Doc. 42.
Unlike the original complaint, the amended complaint does not attempt to plead RICO or common law fraud claims and does attempt to plead TILA claims. The amended complaint alleges that Standard violated TILA in two ways: by not giving each Plaintiff two copies of the Notice of Right to Cancel, and by providing a Truth in Lending Disclosure Statement that misrepresented the finance charge of the loan. Id. at ¶¶ 16-20. These violations, Plaintiffs maintain, give rise to: (1) an extended right to ...