Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gary Horwitz v. Wells Fargo

November 19, 2012

GARY HORWITZ
v.
WELLS FARGO, ET AL.



Name of Assigned Judge or Magistrate Judge Ronald A. Guzman Sitting Judge if Other than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT

For the reasons set forth in this order, the Court grants in part Wells Fargo's motion to dismiss the amended complaint [46] and dismisses without prejudice the Sherman Act and slander of title claims (Counts IV and VI). In all other respects, the motion is denied. Plaintiff has fourteen days from the date of this order to amend Counts IV and VI. If he fails to do so, the Court will dismiss those counts with prejudice.

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

STATEMENT

Facts

On August 16, 2005, plaintiff obtained a home loan from and executed a promissory note and mortgage in favor of The Home Loan Center ("HLC"). (Am. Compl. ¶¶ 13-14; see id., Ex. A, Note & Ex. B, Mortgage.)

On October 1, 2005, HLC assigned its interest in the note and mortgage to Freddie Mac and its right to service the note and mortgage to Wells Fargo ("Wells"). (Id. ¶ 15; see id., Ex. C, Notice of Assignment, Sale or Transfer of Servicing Rights.)

On October 14, 2005, Freddie Mac securitized the note and transferred it to a mortgage-backed securitized trust, which designated Wells as the note and mortgage servicer. (Id. ¶¶ 16-17.) On April 1, 2007, the trust, and Wells' associated servicing rights, terminated. (Id. ¶ 19.)

On April 9, 2007, Wells created a document that purported to assign HLC's interest in plaintiff's note and mortgage to Wells. (Id. ¶¶ 19-20; see id., Ex. F, Assignment of Mortgage.) The assignment is executed by HLC's "Attorney in Fact," Michael Snively, Wells' Vice President of Loan Documentation. (Id., Ex. F, Assignment of Mortgage.) Subsequently, Wells recorded the false assignment with the Cook County Recorder of Deeds, and since then, has held itself out to plaintiff as the owner and servicer of his note and mortgage. (Id. ¶¶ 21-22.)

On January 3, 2012, Wells filed suit in state court to foreclose the mortgage and attached a copy of plaintiff's note to HLC falsely endorsed to Wells by HLC's "Attorney-in-Fact," Wells' Vice President Lynnette Hanson. (Id. ¶ 23; see id., Ex. H, Compl., Wells Fargo Bank N.A. v. Gary Horwitz, No. 12 CH 69 (Cir. Ct. Cook Cnty.), Ex. B, Note.)

Plaintiff alleges that Wells' conduct violates the Fair Debt Collection Practices Act ("FDCPA"), the Sherman Act and the Illinois Uniform Deceptive Trade Practices Act ("Deceptive Trade Practices Act") and asserts claims against it to quiet title, for slander of title and unjust enrichment.

Discussion

On a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pleaded factual allegations of the complaint, drawing all reasonable inferences in plaintiff's favor. Hecker v. Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009). "[A] complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations" but must contain "enough facts to state a ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.