Tratar v. First Federal Savings Bank of Ottawa et al

Filing 20

MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 6/13/2013. Mailed notice by judge's staff. (srb,)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ESTATE OF KENNETH W. TRATAR,
Plaintiff,
v.
FIRST FEDERAL SAVINGS BANK OF
OTTAWA, et al.,
Defendants.

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No.

13 C 1562

MEMORANDUM OPINION AND ORDER
Acting “as special representative/executor for the estate”
of her late husband Kenneth Tratar, who died on August 29, 2012,
Lauren Tratar (“Tratar”) originally filed a pleading that this
Court’s brief April 24, 2013 memorandum order (“Order II”)
characterized as a “hopelessly turgid and Rule-violative
Complaint.”1

Order I had gone on to strike the Complaint sua

sponte, but with leave granted to amend the Complaint on or
before April 2.

Because Tratar later represented that she had

never received that notification, this Court ultimately granted
her leave to submit a replacement pleading on or before June 6.
Tratar has now done that, but the First Amended Complaint
(“FAC”) that she has provided is once again a hopeless mishmash
containing such things as (1) legal arguments replete with
citations and (2) lengthy assertions and perorations that don’t

1

Order II was a follow-up to this Court’s March 19, 2013
memorandum order (“Order I”), which (although also brief) had
first spoken to the unsatisfactory nature of the Complaint.

belong in complaints that must comply with the Fed. R. Civ. P.
(“Rule”) 8(a) mandate for “a short and plain statement.”

More

generally, the current submission again fits the earlier
“hopelessly turgid and Rule-violative Complaint”
characterization.

In perhaps the most ironic assertion contained

in Tratar’s First Amended Complaint (“FAC”), its Paragraph
117--very close to the end--states:
The Complaint includes short, plain and precise
statements of the basis for relief in accordance with
Fed. Rule Civ. Proc. 8(a).
In an apparent effort to justify the FAC that she has
submitted, Tratar begins it with a paragraph of legal argument
(replete with citations) that she heads “Judicial Notice,” in
which she calls in part on the principle announced in Haines v.
Kerner, 404 U.S. 519 (1972)(per curiam) that pleadings by pro se
litigants are to be examined through a more generous lens.

True

enough, but that proposition does not begin to excuse what Tratar
has tendered here.

Defendants as well as plaintiffs have rights,

and to require an answer to the wholly unsuitable work product
that Tratar has generated here would be unduly oppressive.
But it appears unlikely that this Court will have to send
Tratar back to the drawing board once more, for the FAC has
disclosed a serious problem as to federal subject matter
jurisdiction.

FAC Counts I and II sound in Illinois law, as to

which counts diversity of citizenship is lacking.

2

Hence Tratar’s

only potential door of entry to this District Court is via FAC
Count III, which charges defendants with asserted violations of
the Fair Debt Collection Practices Act (“Act,” 15 U.S.C. §1692
[“Section 1692”]).
In that respect the cases are legion in holding that neither
mortgagees nor mortgage servicing companies nor the assignees of
mortgage debt nor officers or employees of any of them is a “debt
collector” within the meaning of Section 1692a(6).

Instead the

statutory concept of “debt collector” is limited to those whose
principal or regular efforts at collection relate to debts owed
to others, not those who seek to collect their own debts.

That

is the plain message conveyed by the definition in Section
1692a(6), and a review of the annotations to that provision in
the United States Code Annotated confirms that message again and
again.
FAC Count III reiterates the same charges of fraudulent
conduct that are advanced in the two earlier counts grounded in
Illinois law, but when the objective reader cuts through all of
Tratar’s pejorative assertions, her conclusory efforts to bring
the Act into play on those charges do not withstand analysis.
Indeed, the introductory paragraph in the FAC itself confirms
that defendant First Federal Savings Bank of Ottawa is being sued
“as a mortgage lender” and that its three named officer
defendants (excluded from the Act by the definition in Section

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1692a(6)(A)) and 100 unnamed “John Does” are sued “as possible
owners of Plaintiff’s mortgage.”

Simply put, Tratar has pleaded

herself out of any federal claim.
Tratar has tried twice, and this Court finds that she has
failed both times, both in terms of the untenable nature of her
pleading and in jurisdictional terms.

There is no reason to

believe that she could overcome the glaring deficiencies
identified here if she were to try again.

Accordingly FAC

Count III is dismissed for lack of subject matter jurisdiction.
And without that underpinning, Counts I and II fail to meet the
supplemental jurisdiction standards of 28 U.S.C. §1367--and they
are accordingly dismissed without prejudice.

Tratar is left to

pursue those claims, if she so desires, in a state court of
competent jurisdiction.

________________________________________
Milton I. Shadur
Senior United States District Judge
Date:

June 13, 2013

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