United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ROBERT W. GETTLEMAN, District Judge.
Counter-plaintiff Townstone Financial ("Townstone") has brought a three-count counterclaim against counter-defendant Fifth Third Mortgage Company ("Fifth Third"). Count I alleges that Fifth Third breached the contract between Townstone and Fifth Third by failing to properly underwrite the loan at issue in this case. Count II alleges that Fifth Third breached its contract with Townstone by breaching the implied covenant of good faith and fair dealing. Count III alleges negligence against Fifth Third related to the underwriting of the loan. Fifth Third has moved to dismiss the counterclaim pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons set forth below, Fifth Third's motion to dismiss the counterclaim is granted.
On October 2, 2011, Townstone and Fifth Third entered into a Correspondent Lending Agreement (the "Agreement"), in which Townstone agreed to sell mortgage loans originated by Townstone to Fifth Third. The Agreement incorporates the terms of Fifth Third's Correspondent Seller Guide (the "Guide"), which outlines the process by which sellers submit loans and are approved for purchase. According to the Guide, Townstone is a non-delegated correspondent lender, which means that Fifth Third, not Townstone, is responsible for underwriting loans that Townstone sells to Fifth Third. Townstone provides a credit package to Fifth Third for each loan, and, in turn, Fifth Third completes the underwriting and issues an approval to purchase the loan. Once the purchase has been approved, Townstone prepares the closing documents and corrects any deficiencies that Fifth Third has requested. Additionally, the Agreement states multiple circumstances under which Townstone must repurchase the loans sold to Fifth Third. One of these enumerated circumstances is that Townstone agrees to repurchase the loan from Fifth Third if Fifth Third is obligated to repurchase the loan from Fannie Mae.
On September 11, 2012, Townstone closed a mortgage loan with borrower Phyllis Mitzen and submitted the credit package to Fifth Third. Fifth Third required Townstone to submit an updated appraisal on Mitzen's mortgaged property, which Townstone did. Fifth Third purchased the loan on October 2, 2012. On December 24, 2012, Fifth Third sold the loan to Fannie Mae. On August 7, 2013, Fannie Mae demanded that Fifth Third repurchase the loan due to two deficiencies: (1) the debt-to-income ratio had been improperly calculated, and the true ratio made the loan ineligible for purchase by Fannie Mae, and (2) because the updated appraisal showed a decline in value of the mortgaged property, a new appraisal was required but was not provided to Fannie Mae. Upon repurchasing the Mitzen loan from Fannie Mae, Fifth Third demanded that Townstone repurchase the loan. Townstone has refused to repurchase the loan because it alleges that Fifth Third, as underwriter, was responsible for ensuring that the documents in Mitzen's loan satisfied Fannie Mae's lending guidelines, including ensuring that the borrower's debt-to-income is acceptable.
On March 17, 2014, Fifth Third filed a lawsuit against Townstone for breach of contract, alleging that Townstone is in default because it refused to repurchase the Mitzen loan. Fifth Third is seeking actual damages of $420, 781.17, the cost for Fifth Third to repurchase the loan, along with additional damages incurred. Townstone filed an answer and a counterclaim, alleging that Fifth Third breached the contract for failing to properly underwrite the loan, for violating the implied covenant of good faith and fair dealing, and that Fifth Third was negligent in failing to properly underwrite the loan. Fifth Third has moved to dismiss the counterclaim.
Fifth Third has moved to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. The purpose of such a motion is to test the sufficiency of the counterclaim, not rule on its merits. Gibson v. City of Chicago , 910 F.2d 1510, 1520 (7th Cir. 1990). When considering the motion, the court accepts as true all well-pleaded factual allegations and draws all reasonable inference in Townstone's favor. McMillan v. Collection Professionals, Inc. , 455 F.3d 754, 758 (7th Cir. 2006). The counterclaim must plead sufficient facts to plausibly suggest that plaintiff has a right to relief and raise that possibility above the speculative level. Bell Atlantic Co. v. Twombly , 550 U.S. 544, 555 (2007); Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009).
A. Count I: Breach of Contract for Failure to Properly Underwrite the Loan
Townstone alleges that Fifth Third breached the Agreement by failing to properly underwrite the Mitzen loan because Fifth Third had the responsibility under the Guide to ensure that the loan documents satisfied Fannie Mae's guidelines. Because the Guide designated Townstone as a "non-delegated correspondent lender, " Townstone argues that Fifth Third had the unconditional and exclusive duty to properly underwrite the loans.
Fifth Third argues that the Agreement is unambiguous that, even though Fifth Third was the underwriter, Townstone is required to repurchase the Mitzen loan, and therefore Townstone's claim for breach of contract is precluded by the express terms of the Agreement.
In considering a counterclaim, the court considers not only the counterclaim itself, but also the documents that are attached or are critical to the pleading. Phillips v. Prudential Ins. Co. of America , 714 F.3d 1017, 1019-20 (7th Cir. 2013). "To the extent that an exhibit attached to or referenced by the [counterclaim] contradicts the [counterclaim's] allegations, the exhibit takes precedence." Id . at 1020. The court therefore considers both the Agreement and the Guide in determining the terms of the contract between the parties.
Townstone is unable to point to any section of the Agreement or the Guide that states that it is Fifth Third's responsibility to ensure that the loans satisfy Fannie Mae's guidelines. Instead, Townstone relies on the provisions of the Guide that articulate Fifth Third's obligation to underwrite the loan. However, Section 1.3 of the Agreement specifically states that "[t]he fact that [Fifth Third] has reviewed the Loan File either prior to the Closing Date or after the Closing Date or both, does not affect any of [Townstone's] obligations or [Fifth Third's] rights including repurchase or indemnification rights under this Agreement." The Agreement further states at § 3.1 that Townstone "agrees to repurchase any Loan File sold to [Fifth Third] pursuant to the agreement within thirty calendar days of receipt of written notice from [Fifth Third] of any of the following circumstances[:]... 3.1.8 If [Fifth Third] is obligated to repurchase the Loan File from... Fannie ...