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FirstMerit Bank, N.A. v. Stave Properties, Inc.

United States District Court, N.D. Illinois, Eastern Division

July 9, 2014

FIRSTMERIT BANK, N.A., a national banking association, as successor in interest to the FDIC, as receiver for Midwest Bank and Trust Company, Plaintiff,
v.
STAVE PROPERTIES, INC.; JOSEPH BETANCOURT; and ROBERT FERRARI, SR., Defendants

For FIRSTMERIT BANK, N.A., as Assignee of the FDIC, receiver for Midwest Bank and Trust Company, Plaintiff: David F Standa, Locke Lord LLP, Chicago, IL.

For STAVE PROPERTIES, INC., Joseph Betancourt, Robert Ferrari, Defendants: Andrew Allen Jacobson, Brown, Udell, Pomerantz & Delrahim, Ltd., Chicago, IL; Michael S. Pomerantz, Brown, Udell & Pomerantz, Ltd., Chicago, IL; Michelle Anne Miner, Brown, Udell, Pomerantz & Delrahim, Ltd, Chicago, IL.

For Joseph Betancourt, STAVE PROPERTIES, INC., Robert Ferrari, Counter Claimants: Andrew Allen Jacobson, Brown, Udell, Pomerantz & Delrahim, Ltd., Chicago, IL; Michael S. Pomerantz, Brown, Udell & Pomerantz, Ltd., Chicago, IL; Michelle Anne Miner, Brown, Udell, Pomerantz & Delrahim, Ltd, Chicago, IL.

For FIRSTMERIT BANK, N.A., as Assignee of the FDIC, receiver for Midwest Bank and Trust Company, Counter Defendant: David F Standa, Locke Lord LLP, Chicago, IL.

Page 1152

MEMORANDUM OPINION AND ORDER

Milton I. Shadur, Senior United States District Judge.

In this action brought by FirstMerit Bank, N.A. (" FirstMerit" ), as successor in interest to original mortgagee Midwest Bank and Trust Company, in which FirstMerit seeks mortgage foreclosure and other relief against mortgagor Stave Properties, Inc. (" Stave" ) and Joseph Betancourt (" Betancourt" ) and Robert Ferrari, Sr. (" Ferrari" ) (the latter two both as guarantors of the Stave mortgage and note and as mortgagors of other properties), defendants have sought to turn the tables by advancing no fewer than five Counterclaims as well as their Answer to FirstMerit's Complaint: In those Counterclaims defendants charge a violation of the

Page 1153

Equal Credit Opportunity Act (" Act" ) in failing to provide appraisals (Count I), another violation of the Act in failing to consummate a settlement agreement (Count II), a violation of 42 U.S.C. § 1981 (" Section 1981" ) by the same failure to provide appraisals (Count III), a violation of Section 1981 by the same failure to consummate the settlement agreement (Count IV) and conversion (Count V).

To begin with, page 2 of Defendants' Response to Plaintiff's 12(B)(6) Motion To Dismiss describes the gravamen of their counterattack on Counterclaims I through IV:

The first four Counterclaims are predicated on the racial animus held by the Bank and at least one of its loan officers toward Hispanics. This animus led at least two forms of discriminatory conduct by the Bank: its refusal, through its loan officer, to provide Defendants with copies of appraisals for which they were charged, and its failure to consummate a purported settlement agreement.

And that entire edifice is sought to be erected on the foundation of this single remark that defendants ascribe to loan officer Daniel Stokes (" Stokes" ) in responding to one of the repeated requests for copies of those appraisals made by Hispanic defendant Betancourt:[1]

It's enough, Joe. We normally don't give loans to Hispanics. Consider yourself lucky.

Because that statement (if made) will not reasonably carry the baggage that defendants seek to load onto it, FirstMerit's Rule 12(b)(6) motion to dismiss ...


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