Gater v. Bank of America, National Association

Filing 24

MEMORANDUM Opinion Signed by the Honorable Samuel Der-Yeghiayan on 10/18/2013: Mailed notice (mw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CRYSTAL GATER,

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Plaintiff,
v.
BANK OF AMERICA, N.A.,
Defendant.

No. 13 C 3267

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant Bank of America, N.A.’s (BOA)
motion to dismiss. For the reasons stated below, the motion to dismiss is granted.

BACKGROUND
Plaintiff Crystal Gater (Gater) contends that in 2006 she entered into a
mortgage loan (Mortgage) with Universal Mortgage Corporation (Universal). Gater
contends that Universal made certain misrepresentations to her relating to the
Mortgage. The Mortgage was allegedly subsequently assigned to Mortgage
Electronic Registration Systems, Inc. (MERS), and later re-assigned by MERS to
BOA. Gater includes in her complaint a Truth–in–Lending Act (TILA), 15 U.S.C.
§§ 1601, et seq. claim (Count I), and an Illinois Consumer Fraud and Deceptive

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Business Practices Act (Fraud Act), 815 ILCS 505/1, et seq. claim (Count II). BOA
now moves to dismiss the instant action.

LEGAL STANDARD
In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil
Procedure 12(b)(6) (Rule 12(b)(6)), the court must draw all reasonable inferences
that favor the plaintiff, construe the allegations of the complaint in the light most
favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in
the complaint. Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 622 (7th
Cir. 2012); Thompson v. Ill. Dep’t of Prof’l Regulation, 300 F.3d 750, 753 (7th Cir.
2002). A plaintiff is required to include allegations in the complaint that “plausibly
suggest that the plaintiff has a right to relief, raising that possibility above a
‘speculative level’” and “if they do not, the plaintiff pleads itself out of court.”
E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir.
2007)(quoting in part Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007));
see also Morgan Stanley Dean Witter, Inc., 673 F.3d at 622 (stating that “[t]o survive
a motion to dismiss, the complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face,” and that “[a] claim has
facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged”)(quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009))(internal quotations
omitted).
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DISCUSSION
BOA argues that the TILA and Fraud Act claims are untimely. An affirmative
defense such as a statute of limitations defense “may be raised in a motion to dismiss
if ‘the allegations of the complaint itself set forth everything necessary to satisfy the
affirmative defense.’” Brooks v. Ross, 578 F.3d 574, 579 (7th Cir. 2009)(quoting
United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005)). Generally, a TILA action
for damages must be filed “within one year from the date of the occurrence of the
violation . . . .” 15 U.S.C. § 1640(e). A TILA action seeking rescission must be filed
within three years of the date of consummation. 15 U.S.C. § 1635(f); see also
Haymer v. Countrywide Bank, FSB, 2011 WL 2790172, at *6 (N.D. Ill. 2011)(stating
that “TILA actions must be brought within one year from the date of the violation”
and that ”[a] transaction is consummated on the date the loan is closed”); 15 U.S.C. §
1635(f). A Fraud Act claim must be brought “within three years of the date the claim
accrues.” Addison Automatics, Inc. v. RTC Group, Inc., 2013 WL 3771423, at *5-6
(N.D. Ill. 2013). A Fraud Act claim “accrues when the plaintiff ‘knows or
reasonably should know of his injury and also knows or reasonably should know that
it was wrongfully caused.’” Highsmith v. Chrysler Credit Corp., 18 F.3d 434, 441
(7th Cir. 1994)(quoting Knox College v. Celotex Corp., 430 N.E.2d 976, 980 (Ill.
1981)); 815 ILCS 505/10a(e).
In the instant action, the allegations in the complaint indicate that the
Mortgage transaction was consummated in September 2006, over seven years ago.
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The alleged misrepresentations that are alleged in the complaint are alleged to have
occurred in September 2006. Over six years passed before Gater brought the instant
action on April 30, 2013. Even if the court were to consider Gater’s allegations that
she unsuccessfully attempted to refinance the Mortgage sometime in 2007, (Compl.
Par. 31), and the court found that the statute of limitations periods began to run in
December 2007, Gater’s claims brought in April 2013 would still be untimely. In
addition, even if the court were to apply the five-year statute of limitations for
general common law fraud claims, Gater’s claims would still be untimely. 735 ILCS
5/13-205.
Gater also argues that some courts have found an exception to the TILA
limitations period where TILA claims are asserted as a defensive measure to an
Illinois foreclosure action. See U.S. Bank Nat. Ass’n v. Manzo, 960 N.E.2d 1238,
1250 (Ill. App. Ct. 2011)(addressing whether a TILA rescission claim for
recoupment brought in defense to a foreclosure action was barred by the three-year
limitations period). However, BOA has provided documents from the public record,
which the court can take judicial notice of when ruling on the instant motion.
General Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th
Cir. 1997)(stating that a court can “take judicial notice of matters of public record
without converting a motion for failure to state a claim into a motion for summary
judgment”). Such documentation provided by BOA shows that BOA already
obtained a foreclosure judgment against Gater in a separate civil action. (Mot. Ex 4).
Finally, Gater has not presented facts to indicate that either of the equitable tolling
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doctrines are applicable in this case. See Cada v. Baxter Healthcare Corp., 920 F.2d
446, 451 (7th Cir. 1990)(explaining equitable tolling doctrines). Therefore, since
Gater’s claims are untimely, BOA’s motion to dismiss is granted.

CONCLUSION
Based on the foregoing analysis, BOA’s motion to dismiss is granted.

___________________________________
Samuel Der-Yeghiayan
United States District Court Judge

Dated: October 18, 2013

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