FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for INTEGRA BANK, NATIONAL ASSOCIATION, successor in interest to PRAIRIE BANK AND TRUST COMPANY, a national banking association, Plaintiff,
DEBORAH HILLGAMYER, et al., Defendants. DEBORAH HILLGAMYER, Counter-Plaintiff,
FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for INTEGRA BANK, NATIONAL ASSOCIATION, successor in interest to PRAIRIE BANK AND TRUST COMPANY, a national banking association, BRADLEY M. STEVENS; PATRICIA A. TYNSKI; and SUSAN NIBLACK, Counter-Defendants.
MEMORANDUM OPINION AND ORDER
SHARON JOHNSON COLEMAN, District Judge.
Counter-defendants Federal Deposit Insurance Corporation ("the FDIC"), as receiver for Integra Bank ("Integra"), Patricia Tynski ("Tynski") and Bradley M. Stevens ("Stevens") move to dismiss counter-plaintiff, Deborah Hillgamyer's ("Hillgamyer") counter-complaint. For the following reasons, the FDIC's motion to dismiss is denied, Tynski's motion to dismiss is granted in part and denied in part, and Stevens' motion to dismiss is granted.
Integra made two loans to Hillgamyer and her husband, Henry Hillgamyer, (collectively "the Hillgamyers") to secure a mortgage on a residence located at 4040 Linden, Western Springs, Illinois. The first loan was issued on April 12, 2006, for $405, 000 and the second loan was issued on June 21, 2007, for $100, 000. The Hillgamyers eventually defaulted on both loans. On December 3, 2008, Integra filed a complaint to foreclose mortgage against the Hillgamyers in the Circuit Court of Cook County. Summary judgment and judgment of foreclosure and sale was entered against the Hillgamyers on December 2, 2009. Subsequently, Integra purchased the property at auction and the circuit court entered an order confirming the sheriff's report of sale and distribution on March 15, 2010. Integra then sold the property to a third party.
On April 20, 2011, Hillgamyer filed a petition to vacate judgment of foreclosure pursuant to Section 2-1401 of the Illinois Code of Civil Procedure, alleging that she never signed for any of the loans. She claims that the first loan does not contain her signature, that her signature was forged on the second loan and that she was unaware of the foreclosure proceedings until after her husband's death on March 2, 2011. The FDIC was appointed as receiver for Integra on September 26, 2011, and subsequently removed the case to the Northern District of Illinois. Hillgamyer filed a proof of claim with the FDIC on November 1, 2011. Notice of disallowance of Hillgamyer's claim was issued on April 11, 2012.
On June 28, 2012, Hillgamyer filed the instant counter-complaint against counter-defendants the FDIC, Tynski, Bradley M. Stevens and Susan Niblack. Hillgamyer alleges that she sustained damages in the amount of $605, 000 and alleges slander of title, conversion, taking without just compensation, violation of the Illinois Notary Public Act, negligent training, negligent supervision, violation of the Illinois Consumer Fraud Act.
The FDIC, Tynski and Stevens now move to dismiss Hillgamyer's counter-complaint pursuant to Fed.R.Civ.P. 9(b), 10(b), 12(b)(1) and 12(b)(6).
In order to survive a motion to dismiss, a complaint must contain sufficient factual allegations to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 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. Id. When ruling on a motion to dismiss, courts accept all well-pleaded allegations in the complaint as true, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), and draw all reasonable inferences in favor of the plaintiff. Pisciotta v. Old Nat. Bancorp, 499 F.3d 629, 633 (7th Cir. 2007).
1. The FDIC's Motion to Dismiss Pursuant Fed.R.Civ.P. 12(b)(1)
The FDIC argues this court lacks jurisdiction pursuant to Rule 12(b)(1) because Hillgamyer's counter-complaint is time barred under 12 U.S.C. 1821(d)(6). The Financial Institutions, Reform, Recovery and Enforcement Act of 1989 ("FIRREA") Pub. L. No. 101-73, § 183 et seq. established a procedure for all claims against failed institutions. FIRREA requires a claimant to first file a claim directly to the FDIC as receiver and allow the administrative process to run before filing a lawsuit or continuing litigation. 12 U.S.C. § 1821(d)(3)(A). The FDIC has 180 days to make a decision to allow or disallow the claim. 12 U.S.C. § 1821(d)(5)(A)(ii). If the FDIC does not issue a decision on the claim by the end of the 180 days and there is no agreed upon extension, the claim is deemed denied. 12 U.S.C. § 1821(d)(6)(B). In order to preserve their rights, a claimant must "file suit on such claim (or continue an action commenced before the appointment of the receiver)" in the district court within 60 days after the claim is denied or within 60 days after of the 180-day period ends, whichever comes first. 12 U.S.C. § 1821(d)(6).
Hillgamyer filed her proof of claim against the FDIC on November 1, 2011. The FDIC had 180 days from that date, until April 29, 2012, to issue its decision. The FDIC mailed its notice of disallowance on April 11, 2012. The Court notes that in the absence of a decision from the FDIC, Hillgamyer was required to file suit or continue an action commenced before the FDIC was appointed receiver on or before June 28, 2012. Indeed, Hillgamyer's counter-complaint was filed June 28, 2012.
Hillgamyer allegedly never received notice of disallowance and argues that the FDIC failed to meet notice requirements of Section 1821. Mailing of the notice of disallowance is sufficient when it is mailed to the last address of the claimant which appears: 1) on the depository institution's books, 2) in the claim filed by the claimant, or 3) in the documents submitted in proof of the claim. 12 U.S.C. § 1821(d)(5)(A)(iii). The FDIC mailed its notice of disallowance to the address listed on Hillgamyer's proof of claim. Moreover, in most cases, whether a claimant actually receives notice is immaterial. Miller v. F.D.I.C., 2011 WL 4538685 at *7 (N.D. Ill. Sept. 29, 2011) (finding the date of mailing of ...