United States District Court, N.D. Illinois, Eastern Division
Ming J. Chen, Plaintiff,
Urban Partnership Bank, Defendant.
MEMORANDUM OPINION AND ORDER
E. Chang, Judge
se plaintiff Ming Chen filed this action against Urban
Partnership Bank, alleging a variety of federal and state
claims in connection with two foreclosure actions that Urban
Partnership brought against Chen in Illinois state court. R.
26, Am. Compl. The state-court actions were triggered by
Chen's failure to make payments on promissory notes
issued by ShoreBank (Urban Partnership became the holders of
the notes after the Federal Deposit Insurance Corporation
took over ShoreBank, which is now defunct). Id. at
4-6. The notes were secured by mortgages on the foreclosed
properties. Id. Urban Partnership has filed a
motion to dismiss for lack of subject-matter jurisdiction and
failure to state a claim. R. 33, Mot. to Dismiss. For the
reasons stated below, the motion is granted.
purpose of deciding this motion, the Court accepts the
allegations in the Amended Complaint as true. Erickson v.
Pardus, 551 U.S. 89, 94 (2007). In the mid-2000s, Chen
took out two mortgages from ShoreBank. Am. Compl. at 2-3. One
mortgage covered a property on South Princeton Avenue in
Chicago, Illinois, and the other a property on Braemer Court,
in Bolingbrook, Illinois. See Id. at 2-3, 29, 32-33,
2010, ShoreBank filed for bankruptcy and was closed by the
Illinois Department of Financial and Professional Regulation.
Am. Compl. at 4; Mot. to Dismiss at 3. The Federal Deposit
Insurance Corporation (FDIC) was later assigned as
ShoreBank's receiver and succeeded to "all rights,
titles, powers, and privileges" of ShoreBank. Am. Compl.
at 4; Mot. to Dismiss at 3; see 12 U.S.C. §
1821 (c)(3)(A). Urban Partnership Bank then entered into a
Purchase and Assumption Agreement with the FDIC and bought
ShoreBank's assets. Am. Compl. at 4; Mot. to Dismiss at
3; see also R. 33-3, Mot. to Dismiss Exh. C,
Purchase and Assumption Agreement.
2011, Chen fell behind on her payments on at least one of the
mortgages. Am. Compl. at 4. Urban Partnership Bank filed
state-court foreclosure actions against the Braemer Court
property in 2012, Mot. to Dismiss at 2; R. 33-1, Mot. to
Dismiss Exh. A, Braemer Foreclosure Compl., and against the
South Princeton Avenue property in 2013, Mot. to Dismiss at
2; R. 33-2, Mot. to Dismiss Exh. B, Princeton Foreclosure
Compl. See also Am. Compl. at 4. The Circuit Court
of Will County entered default judgment against Chen as to
the Braemer Court property, and the house was sold at a
sheriffs auction in December 2014 over Chen's objection
and motion to reconsider approval of the sale. Am. Compl. at
6, 41-42. Chen then filed suit against Urban Partnership Bank
in federal court, alleging two federal claims and ten
Partnership Bank brings its motion under Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6). A Rule 12(b)(1) motion
tests whether the Court has subject-matter jurisdiction,
Hallinan v. Fraternal Order of Police of Chi. Lodge No.
7, 570 F.3d 811, 820 (7th Cir. 2009); Long v.
ShoreBank Dev. Corp., 182 F.3d 548, 554 (7th Cir. 1999),
while a Rule 12(b)(6) motion tests the sufficiency of the
complaint, Hallinan, 570 F.3d at 820; Gibson v.
City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). When
reviewing a motion to dismiss under either rule, the Court
accepts as true all factual allegations in the complaint and
draws all reasonable inferences in the plaintiffs favor.
Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d
614, 618 (7th Cir. 2007). Because Chen is a pro se
plaintiff, her complaint is liberally construed and held
"to a less stringent standard than formal pleadings
drafted by lawyers." Arnett v. Webster, 658
F.3d 742, 751 (7th Cir. 2011).
Rule 8(a)(2), a complaint generally need only include "a
short and plain statement of the claim showing that the
pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2).
The complaint must "give the defendant fair notice of
what the ... claim is and the grounds upon which it
rests." Bell Ail. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (alteration in original) (internal quotation
marks and citation omitted). These allegations "must be
enough to raise a right to relief above the speculative
level, " id. at 555, and must "contain
sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face, '"
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). The allegations entitled
to the assumption of truth are those that are factual, rather
than mere legal conclusions. Iqbal, 556 U.S. at
order to survive a Rule 12(b)(1) motion, the plaintiff must
establish that the district court has jurisdiction over an
action. United Phosphorous, Ltd. v. Angus Chem. Co.,
322 F.3d 942, 946 (7th Cir. 2011), overruled on other
grounds by Minn-Chem, Inc. v. Agrium, Inc., 683 F.3d 845
(7th Cir. 2012). "If subject matter jurisdiction is not
evident on the face of the complaint, [then] the ... Rule
12(b)(1) [motion is] analyzed [like] any other motion to
dismiss, by assuming for the purposes of the motion that the
allegations in the complaint are true." United
Phosphorus, 322 F.3d at 946. But "if the complaint
is formally sufficient but the contention is there that there
is in fact no subject matter jurisdiction, [then]
the movant may use affidavits and other material to support
the motion." Id. (emphasis in original).
the parties are not of diverse citizenship,  this Court may
only exercise subject-matter jurisdiction if Chen adequately
states at least one federal claim-that is, a claim
"arising under the Constitution, laws, or treaties of
the United States, " 28 U.S.C. § 1331. If she does,
the Court may also exercise supplemental jurisdiction over
any state-law claims that are "so related to [the
federal] claims ... that they form part of the same case or
controversy." 28 U.S.C. § 1367(a).
Amended Complaint asserts two federal claims. First, Chen
alleges that she did not receive required disclosures about
the costs and terms of the Braemer Court mortgage,
violation of the Truth in Lending Act, 15 U.S.C. § 1601
et seq. Although Chen directs this particular claim
against, at different points, "Defendants, "
"ShoreBank/UPB, " and "UPB, " only
ShoreBank could have committed the alleged acts or omissions
giving rise to the claim because they occurred at the time of
loan origination. Am. Compl. at 8-9 ("Defendants failed
to disclose [the required information] to the Plaintiff prior
to the closing of the loan ... . ShoreBank/UPB failed to
provide borrower necessary information ... within three days
of the loan application."). Chen claims that
"UPB" (meaning Urban Partnership Bank) specifically
violated the Truth in Lending Act by providing Chen with a
Disclosure Statement containing an incorrect APR,
id. at 9, but the allegedly deficient Disclosure
Statement is dated September 6, 2005, Id. at 43-well
before Urban Partnership ...