United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
M. DOW, JR. UNITED STATES DISTRICT JUDGE.
the Court are Defendants CIT Mortgage Home Loan Trust
2007-1's and Caliber Home Loans' motion to dismiss
. For the reasons set forth below, Defendants' motion
to dismiss  is granted. Plaintiff is given until April
17, 2017, to file an amended complaint.
case involves a residential mortgage of a single family
residence located on Oakwood Court in Country Club Hills,
Illinois (the “Property”). On October 21, 2005,
Plaintiff Elizabeth Overstreet obtained a first and second
mortgage on the Property from BNC Mortgage, Inc.
(“BNC”) for amounts totaling $170, 000. [24,
¶ 10.] Both mortgages were subprime. Id.
¶¶ 12-13. In January 2006, BNC transferred the
loans to Defendant CIT Mortgage Home Loan Trust 2007-1
(“CIT”), and the loan servicer became the entity
now known as Caliber Home Loans (“Caliber, ”
collectively with CIT, “Defendants”).
Id. ¶¶ 15, 41.
March 2015, Caliber sent Plaintiff a “Loss Mitigation
Package” that included a loan modification application
in an effort to help Plaintiff reduce her loan payments.
Caliber approved Plaintiff's request for a short-term
loan modification on July 25, 2015. On September 3, 2015,
Caliber notified Plaintiff that her August payments were
thirty days overdue. Plaintiff alleges that this was an
error. On October 9, 2015, Caliber sent another notice that
it had updated her credit information to show that her August
payments were current.
November 5, 2015, Plaintiff sent a “notice of
rescission” to Caliber because of its alleged
violations of the Truth In Lending Act, 15 U.S.C. § 1601
et seq. (“TILA”), and requested that
Caliber rescind Plaintiff's mortgage. [24, at 35.]
Defendants did not do so. Eight days later, Caliber sent
Plaintiff a mortgage statement that listed a fee of $118.50.
Id. at 37. Plaintiff alleges that this fee was for a
broker price opinion (“BPO”), which is typically
used to determine the potential sales price or value of a
real estate property. Id. ¶ 30.
connection with these events, Plaintiff filed an amended
complaint asserting claims under TILA and the Illinois
Consumer Fraud and Deceptive Business Practices Act
(“ICFA”) as well a as state law claim for unjust
enrichment. [24.] The amended complaint asserts federal
question and diversity jurisdiction. Id. ¶ 2.
Defendants move to dismiss. [26.]
survive a Federal Rule of Civil Procedure
(“Rule”) 12(b)(6) motion to dismiss for failure
to state a claim upon which relief can be granted, the
complaint first must comply with Rule 8(a) by providing
“a short and plain statement of the claim showing that
the pleader is entitled to relief, ” Fed.R.Civ.P.
8(a)(2), such that the defendant is given “fair notice
of what the * * * claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)) (alteration in original). Second, the factual
allegations in the complaint must be sufficient to raise the
possibility of relief above the “speculative
level.” E.E.O.C. v. Concentra Health Servs.,
Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting
Twombly, 550 U.S. at 555). “A pleading that
offers ‘labels and conclusions' or a
‘formulaic recitation of the elements of a cause of
action will not do.'” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 555). Dismissal for failure to state a claim under Rule
12(b)(6) is proper “when the allegations in a
complaint, however true, could not raise a claim of
entitlement to relief.” Twombly, 550 U.S. at
558. In reviewing a motion to dismiss pursuant to Rule
12(b)(6), the Court accepts as true all of Plaintiff's
well-pleaded factual allegations and draws all reasonable
inferences in Plaintiff's favor. Killingsworth v.
HSBC Bank Nevada, N.A., 507 F.3d 614, 618 (7th Cir.
2007). The “documents attached to a motion to dismiss
are considered part of the pleadings if they are referred to
in the plaintiff's complaint and are central to his [or
her] claim” and “may be considered by the
district court in ruling on the motion to dismiss * * *
without converting [it] to a motion for summary
judgment.” Wright v. Associated Ins. Cos.
Inc., 29 F.3d 1244, 1248 (7th Cir. 1994).
advance several arguments to dismiss. With respect to
Plaintiff's TILA claim (Count I), Defendants argue that
Plaintiff's right to rescind has been extinguished.
Regarding the ICFA claims (Counts II and III), Defendants
argue that Plaintiff fails to plead any facts that would show
that Defendants engaged in “deceptive” or
“unfair” conduct. Regarding the unjust enrichment
claim (Count IV), Defendants contend that this claim must
fall with Plaintiff's ICFA claim. The Court starts with
the TILA claim.
TILA claim is based on her 2015 rescission notice. Plaintiff
alleges the original disclosures she received for her 2005
mortgage “did not identify the actual true lender,
” although CIT “was and always has been the
actual lender.” [24, ¶¶ 36-37.] Plaintiff
states that she served her notice to rescind, but Defendants
failed to return any money or property to her, which violates
TILA. Id. ¶¶ 38-42.
enacted TILA “to assure meaningful disclosure of credit
terms so that the consumer will be able to compare more
readily the various terms available to him and to avoid the
uninformed use of credit and to protect the consumer against
inaccurate and unfair credit billing and credit card
practices.” 15 U.S.C. § 1601(a). TILA grants
borrowers the unconditional right to rescind a loan within
three business days of “the consummation of the
transaction.” 15 U.S.C. § 1635(a); Jesinoski
v. Countrywide Home Loans, Inc., 135 S.Ct. 790, 792
(2015). “Consummation means the time that a consumer
becomes contractually obligated on a credit
transaction.” 12 C.F.R. § 226.2(a)(13); accord
Dowdy v. First Metro. Mortg. Co., 2002 WL 745851, at
*1 (N.D.Ill. Jan. 29, 2002) (“A credit transaction is
consummated for the purposes of TILA when the plaintiffs
become contractually obligated on a credit transaction; in
this case, the consummation being the closing of the
loan.”). If the creditor fails to comply with
TILA's various disclosure requirements, the statute
extends the borrower's conditional right to rescind to
three years after consummation. 15 U.S.C. § 1635(f);
Jesinoski, 135 S.Ct. at 792.
Plaintiff consummated her mortgage when she executed her
mortgage documents on October 21, 2005. [24, at 12-20.]
However, Plaintiff served her notice to rescind on Defendants
on November 5, 2015 (id. at 35)-more than ten years
later. Even assuming that Defendants failed to make their
required TILA disclosures, Plaintiff's right to rescind
was extinguished on October 21, 2008. 15 U.S.C. §
1635(f); Jesinoski, 135 S.Ct. at 792.
only way Plaintiff attempts to save her TILA rescission claim
is through resort to “equitable tolling.” [28, at
2-4.] But TILA's three-year limit is a statute of repose.
See Beach v. Ocwen Fed. Bank, 523 U.S. 410, 412
(1998); Doss v. Clearwater Title Co., 551 F.3d 634,
638 (7th Cir. 2008). Unlike a statute of limitations,
“[a] statute of repose * * * is substantive. It
extinguishes any right to bring any type of cause of action
against a party, regardless of whether such action has
accrued.” Augutis v. United States, 732 F.3d
749, 752-53 (7th Cir. 2013). “The rule in the federal
courts is that both tolling doctrines-equitable estoppel and
equitable tolling- are, just like the discovery rule, grafted
on to federal statutes of limitations.” Cada v.
Baxter Healthcare Corp., 920 F.2d 446, 451 (7th Cir.
1990). However, “[n]either tolling doctrine applies to
statutes of repose.” Id. Because ...