DESIMONE v. QUICKEN LOANS, INC. et al

Filing 111

Entry Discussing Motion to Dismiss and Motion for Summary Judgment of Quicken Loans, Inc., Title Source, Inc., and Justin Fendelet: For the reasons set forth in this Entry, the motion to dismiss and motion for summary judgment filed by defendants Qui cken Loans, Title Source, and Fendelet 43 is granted and the claims against these defendants are dismissed. This does not resolve all claims against all defendants. No final partial judgment shall issue at this time ***SEE ENTRY FOR ADDITIONAL INFORMATION***. Signed by Judge William T. Lawrence on 6/20/2011.(DWH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA

SUSAN M. DESIMONE,
Plaintiff,
vs.
QUICKEN LOANS, INC. et al.,
Defendants.

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No.1:09-cv-01421-WTL-MJD

Entry Discussing Motion to Dismiss and
Motion for Summary Judgment of
Quicken Loans, Inc., Title Source, Inc., and Justin Fendelet
On October 9, 2009, DeSimone filed a complaint (the “Complaint”) in the Decatur
Superior Court against Quicken Loans, Inc. (“Quicken Loans”), Title Source, Inc. (“Title
Source”), Justin Fendelet (“Fendelet”), Pat McLeod, Countrywide Mortgage
(“Countrywide”), Bank of America, Fannie Mae, Julie Noonan, and JN Appraisals. The case
was assigned cause No. 16D01-0910-CT-228. The defendants removed the case to this
court on November 16, 2009, alleging diversity jurisdiction. On December 2, 2009, Bank
of America, Countrywide, and Fannie Mae filed a motion for a more definite statement. That
motion was granted on March 10, 2010. As a result, on April 5, 2010, DeSimone filed a
supplement to her original complaint (the “Supplemental Complaint”).
Quicken Loans, Title Source, and Fendelet filed a motion to dismiss pursuant to Rule
12(b)(6) and Rule 9(b) with a motion for summary judgment pursuant to Rule 56 of the
Federal Rules of Civil Procedure. For the reasons explained in this Entry, their motion [43]
is granted.
The claims asserted in the Complaint and Supplemental Complaint against Quicken
Loans, Title Source, and Fendelet are bank fraud, mail fraud, wire fraud, internet fraud,
RICO, IND. CODE § 35-43-5-3 (deception), Indiana Lender Liability Act, Truth in Lending Act
(“TILA”), Real Estate Settlement Procedures Act (“RESPA”), civil conspiracy, fraud,
constructive fraud, and fraudulent misrepresentation. As to most of these claims, the
moving defendants seek dismissal for failure to state a claim upon which relief can be
granted pursuant to Rule 12(b)(6). These defendants also seek summary judgment and
dismissal under Rule 9(b) as to the claims of fraud, fraudulent misrepresentation, and
constructive fraud. The court will discuss each claim in turn.

Legal Standards. To survive a motion to dismiss under Rule 12(b)(6), a complaint
must “plead some facts that suggest a right to relief that is beyond the ‘speculative level.’”
EEOC v. Concentra Health Svcs., Inc., 496 F.3d 773, 776-77 (7th Cir. 2007) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 560-63 (2007)). “The complaint must contain ‘enough
facts to state a claim to relief that is plausible on its face.’” Bissessur v. Indiana University
Bd. of Trustees, 581 F.3d 599, 602 (7th Cir. 2009) (quoting Twombly, 550 U.S. at 557). 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.”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)).
Summary judgment is appropriate if “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The substantive law identifies which facts are material. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine
only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. If no reasonable jury could find for the non-moving party, then there is no
“genuine” dispute. Scott v. Harris, 127 S. Ct. 1769, 1776 (2007). “The applicable
substantive law will dictate which facts are material.” National Soffit & Escutcheons, Inc.,
v. Superior Systems, Inc., 98 F.3d 262, 265 (7th Cir. 1996) (citing Anderson, 477 U.S. at
248).
If the moving party successfully carries its burden, the non-moving party must "go
beyond the pleadings" and present specific facts which show that a genuine issue of
material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). This may be done
through the designation of specific facts in affidavits, depositions, answers to interrogatories
or admissions. Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992). If the non-moving party
fails to make a sufficient showing on an essential element of its case on which that party
will bear the burden of proof at trial, the moving party is entitled to judgment as a matter of
law. See Celotex, 477 U.S. at 322-23.
The defendants’ motion was filed on May 25, 2010, but it did not include the proper
Rule 56 notice to the pro se plaintiff. On February 16, 2011, the court provided DeSimone
with the notice required by Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982), and Local Rule
56.1(h). DeSimone filed a supplement to her prior response, including evidentiary materials
and affidavits.
Undisputed Facts. For purposes of the motion to dismiss, all well-pleaded facts are
taken as true. For purposes of the claims on which McLeod seeks summary judgment, the
court considers the portions of the expanded record which comply with the requirements
of Rule 56(c) to determine which facts are undisputed for purposes of the motion for
summary judgment, or if disputed, considers those facts in the light most favorable to the
non-movant, DeSimone. The well-pleaded and/or undisputed facts are as follows:

2

!
DeSimone owned a hair salon for many years in New Jersey. Sometime in
or before 2007, she decided she wanted to relocate. She found several homes
online to consider, one of which was located at 413 North Franklin Street,
Greensburg, Indiana (the “Real Estate”). She visited the Real Estate in August 2007
and loved the home and the town of Greensburg. The Real Estate’s listing price was
$329,900. She made an offer of $315,000, and it was accepted. DeSimone intended
to relocate and live in the home in Indiana.
!
On October 10, 2007, DeSimone executed a promissory note (the “2007
Note”) in the amount of $283,500.00 in favor of Quicken Loans. The 2007 Note
reflects a loan of the same amount from Quicken Loans to DeSimone, the proceeds
of which were used by DeSimone to purchase the Real Estate. Quicken Loans
employee Fendelet served as DeSimone’s loan officer for this loan transaction.
!
DeSimone gave information to Fendelet over the telephone and information
was typed on to the application for the loan. Although the application states that
DeSimone’s monthly income was over $16,000 a month, she never told Fendelet
that that was her income. In fact, she did not earn nearly that much money. She
signed a form to allow Quicken Loans to obtain a copy of her tax returns to verify
income if it was needed. She alleges that none of the information was ever verified.
To secure the Note, DeSimone granted Quicken Loans a mortgage on the Real
Estate (the “2007 Mortgage”).1

!

Bank Fraud, Mail Fraud, Wire Fraud and Internet Fraud. DeSimone argues
that the moving defendants committed bank, mail, wire and internet fraud throughout
the processing of the mortgage loans. There is no private cause of action for bank
fraud under 18 U.S.C. §1344, mail fraud under 18 U.S.C. §1341, wire fraud under
18 U.S.C. §1343, or for internet fraud. See Wisdom v. First Midwest Bank, of Poplar
Bluff, 167 F.3d 402, 408-09 (8th Cir. 1999); Federal Sav. and Loan Ins. Corp v.
Reeves, 816 F.2d 130, 138 (4th Cir. 1987); Griffin v. City of Milwaukee, 2010 WL
4723420 at *7 (E.D.Wis. Nov. 15, 2010); Park Nat'l Bank of Chicago v. Michael Oil
Co., 702 F.Supp 703, 704 (N.D.Ill. 1989). Such claims could only be brought by the
government as criminal charges. Accordingly, these claims are dismissed for failure
to state a claim upon which relief can be granted.

1

The moving defendants allege in the “Relevant Facts” section of their motion the
following: “The 2007 Mortgage was subsequently assigned by Quicken Loans to Countrywide
Bank, F.S.B. (“Countrywide”).” The defendants do not cite to any evidence to support this
allegation. In addition, the defendants allege that “At closing, the 2007 Mortgage debt was
satisfied. Quicken Loans again subsequently assigned the 2008 Mortgage to Countrywide,
which was by then known as B.A.C. Home Loans Servicing, L.P. (“Bank of America”). Bank of
America subsequently assigned the 2008 Mortgage to Fannie Mae, but remained the loan
servicer.” Again, the court is not directed to evidence that supports these statements. DeSimone
alleges that she was not notified of the assignments of the loans.

3

Racketeer Influenced and Corrupt Organizations Act (“RICO”). “Congress passed
RICO in an effort to combat organized, long-term criminal activity.” Jennings v. Auto Meter
Products, Inc., 495 F.3d 466, 472 (7th Cir. 2007). To establish a private civil action for
RICO violations, a plaintiff must show four elements: (1) conduct (2) of an enterprise (3)
through a pattern (4) of racketeering activity. Id. “In order to curb widespread attempts to
turn routine commercial disputes into civil RICO actions, courts carefully scrutinize the
pattern requirement to forestall RICO’s use against isolated or sporadic criminal activity,
and to prevent RICO from becoming a surrogate for garden-variety fraud actions properly
brought under state law.” Id. (internal quotations omitted). DeSimone does not allege any
long-term pattern of criminal activity. This case is about the purchase of a single parcel of
real estate. Accordingly, any RICO claim against the moving defendants is dismissed for
failure to state a claim upon which relief can be granted.
Deception Ind. Code § 35-43-5-3. A person who suffers a pecuniary loss as a result
of a violation of criminal statute IND. CODE § 35-43 et seq., may bring a civil action for treble
damages and costs against the person who caused the loss. See IND. CODE § 34-24-3-1.
To recover civil damages, the claimants must prove by a preponderance of the evidence
all of the elements of the underlying criminal act. Heartland Resources, Inc. v. Bedel, 903
N.E.2d 1004, 1008, n.2 (Ind.Ct.App. 2009). “Deception” is a qualifying crime under IND.
CODE § 35-43-5-3. Id.
DeSimone contends that the moving defendants committed deception in that they
“misapplie[d] entrusted property, property of a governmental entity, or property of a credit
institution in a manner that the person knows is unlawful or that the person knows involves
substantial risk of loss or detriment to either the owner of the property or to a person for
whose benefit the property was entrusted.” IND. CODE § 35-43-5-3(a)(3). DeSimone argues
that these defendants engaged in fraudulent representations of her loan package to
prospective lenders, investors and securities, and “placed the Plaintiff in the position of
being held liable.” If the loan proceeds in this case are considered to be the “property” for
purposes of the deception statute, there is no allegation or evidence that such property was
ever misapplied by any of these defendants. The funds were originally that of Quicken
Loans. They were not “entrusted” to Quicken Loans or Title Source or Fendelet. Cf., Longhi
v. Mazzoni, 914 N.E.2d 834, 845-46 (Ind.Ct.App. 2009) (acceptance of $50,000 as down
payment earnest money by manager of development company, use of the money to
finance development project rather than build home, and failure to return the funds to the
purchasers after home was not built constituted deception under IND. CODE § 35-43-53(a)(3)). If the defendants had used the funds to do something other than purchase the
Real Estate as intended by DeSimone, then a deception claim might have been viable. In
this case, the loan proceeds were applied in a lawful manner, and in the precise manner
sought when the loan applications were submitted: to purchase a home. Under these
circumstances, DeSimone’s claim of deception against these defendants fails to state a
claim upon which relief can be granted.

4

Indiana Lender Liability Act. DeSimone alleges that the moving defendants violated
the Indiana Lender Liability Act (the “ILLA”) IND. CODE § 26-2-9-1, et seq. The ILLA is a
statute of frauds that requires credit agreements to be in writing, to set forth all material
terms and conditions, and be signed by the creditor and the debtor. IND. CODE §§ 26-2-9-4;
26-2-9-5. “The Indiana statute of frauds requires that agreements to lend money be in
writing.” Classic Cheesecake Company, Inc. v. JPMorgan Chase Bank, N.A., 546 F.3d 839,
841 (7th Cir. 2008) (citing IND. CODE § 26-2-9-5). DeSimone does not allege that the loan
agreement was not in writing. The complaint fails to state a claim upon which relief can be
granted against these defendants as to any claim under the ILLA.
Truth in Lending Act. DeSimone alleges that there were “false documentations on
the loan application, which are violations under the (TILA) Truth in Lending Act.” This claim
is also misplaced. “[T]he purpose of TILA is ‘to assure a meaningful disclosure of credit
terms so that the consumer will be able to compare more readily the various credit terms
available to him and avoid the uninformed use of credit.’” Lucas v. U.S. Bank, N.A., 932
N.E.2d 239, 244-45 (Ind.Ct.App. 2010) (quoting 15 U.S.C. § 1601(a)). The annual
percentage rate, the amount of the finance charge, the amount to be financed, the number
and amount of payments, and due dates are some of the disclosures required by the TILA.
See 15 U.S.C. § 1602(u). DeSimone does not allege any failure to make these types of
disclosures. The complaint fails to state a claim upon which relief can be granted against
these defendants as to any claim under the TILA.
Real Estate Settlement Procedures Act. “RESPA is a consumer protection statute
that regulates the real estate settlement process, including servicing of loans and
assignment of those loans. See 12 U.S.C. § 2601 (Congressional findings).” Catalan v.
GMAC Mortg. Corp, 629 F.3d 676, 680 (7th Cir. 2011). “The statute imposes a number of
duties on lenders and loan servicers.” Id. “Most relevant here are the requirements that
borrowers be given notice by both transferor and transferee when their loan is transferred
to a new lender or servicer, 12 U.S.C. § 2605(b) and (c), and that loan servicers respond
promptly to borrowers' written requests for information, § 2605(e).” Id.2 “Likewise, Congress
enacted RESPA ‘to insure that consumers . . . are provided with greater and more timely
information on the nature and costs of the settlement process and are protected from
unnecessarily high settlement charges.’” Lucas, 932 N.E.2d at 245 (quoting 12 U.S.C. §
2601(a)). Under the statute, a “servicer” is a person who is responsible for receiving
scheduled periodic payments from a borrower pursuant to the terms of a loan. 12 U.S.C.
§ 2605(i)(2), (3).

2

The purpose of the statute is “to effect certain changes in the settlement process for
residential real estate that will result--(1) in more effective advance disclosure to home buyers
and sellers of settlement costs; (2) in the elimination of kickbacks or referral fees that tend to
increase unnecessarily the costs of certain settlement services; (3) in a reduction in the
amounts home buyers are required to place in escrow accounts established to insure the
payment of real estate taxes and insurance; and (4) in significant reform and modernization of
local recordkeeping of land title information.” 12 U.S.C. § 2601.

5

In her responses to the defendants’ motion, DeSimone does not present any
discussion of a claim under RESPA. Accordingly, the court considers this claim as having
been abandoned. Even if it were not abandoned, there is no allegation or evidence that
DeSimone suffered any actual damages from any alleged failure by these defendants to
comply with RESPA. See 12 U.S.C. § 2605(f)(1). To the extent it has not been abandoned,
this claim is dismissed for failure to state a claim upon which relief can be granted.
Fraud, Fraudulent Misrepresentation and Constructive Fraud against Title Source.
As to the claims of fraud, fraudulent misrepresentation, and constructive fraud, Quicken
Loans, Title Source and Fendelet seek dismissal for failure to plead with particularity under
Rule 9(b) of the Federal Rules of Civil Procedure. To satisfy Rule 9(b), “a plaintiff ordinarily
must describe the who, what, when, where, and how of the fraud.” Pirelli Armstrong Tire
Corp. Retiree Medical Benefits Trust v. Walgreen, Co., 631 F.3d 436, 441-42 (7th Cir.
2011) (internal quotation omitted).
In her complaint, DeSimone alleges in paragraph 33 that:
Title Source Inc. has been under investigations with Quicken Loans for the
rip off TSI Appraisal Services. Quicken terminated their appraisal
agreements. Stated their appraisals were extremely high, Quicken Loans and
TSI were on my loan, working hand in hand to get the deal through, no
matter what fraud is committed.
As to defendant Title Source, the first sentence of paragraph 33 is the only factual
allegation in the complaint. There is no description of what, when, where, or how Title
Source committed any acts of fraud against DeSimone. DeSimone has not sufficiently
alleged any claim of fraud against Title Source. Such claims are dismissed pursuant to Rule
9(b).
Fraud, Fraudulent Misrepresentation and Constructive Fraud against Quicken Loans
and Fendelet. As to defendants Quicken Loans and Fendelet, the court finds that
DeSimone has alleged sufficient facts to state claims of fraud, and therefore, the analysis
of the fraud claims as to these two defendants will be based on the summary judgment
standards under Rule 56.
“The essential elements of common law fraud are: 1) a material representation of
past or existing facts which 2) was false 3) was made with knowledge or reckless ignorance
of its falsity 4) was made with intent to deceive 5) was rightfully relied upon by the
complaining party and 6) proximately caused injury to the complaining party.” American
Heritage Banco, Inc. v. McNaughton, 879 N.E.2d 1110, 1115 (Ind.Ct.App. 2008). The
elements of a claim for fraudulent misrepresentation are that: 1) the defendant made false
statements of past or existing material facts; 2) the defendant made such statements
knowing them to be false or recklessly without knowledge as to their truth or falsity; 3) the
defendant made the statements to induce the plaintiff to act upon them; 4) the plaintiff
justifiably relied and acted upon the statements; and 5) the plaintiff suffered injury. Wise v.
Hays, 943 N.E.2d 835, 840 (Ind.Ct.App. 2011); Hizer v. Holt, 937 N.E.2d 1, 5 (Ind.Ct. App.
2010).
6

The torts of fraud and fraudulent misrepresentation are indistinguishable for
purposes of analysis in this case. As to Quicken Loans and Fendelet, DeSimone alleges
that the 2007 Mortgage was obtained by fraudulent misrepresentations on the application.
For instance, the application shows that she earned $16,667.00 a month at her hair salon,
which comes to $200,000 a year. DeSimone testifies in her affidavit that she never reported
any income amount to Fendelet and that he completed the typed loan application, not her.3
DeSimone further testifies that Fendelet and Quicken Loans were aware that she had cosigned a loan with her father, that her down payment was borrowed, and that she intended
the home to be her primary residence, but the application does not reflect this information
accurately. She states that she never had an account at Bank of America, and yet the
application lists a “fictitious” account at that bank with $20,000 in it, “nv” (“not verified.”).
She states that she did have an account with Commerce Bank, of which Fendelet was
aware, but he did not list it on the application. The loan application indicates that Fendelet
took the information by telephone on October 10, 2007.
Fendelet has not presented an affidavit or other testimony in this case. He does not
assert that the information as it appears on the loan application, including DeSimone’s
monthly income, was given to him by DeSimone. He does not argue that such information
was accurate. Rather, he contends that by signing the application, DeSimone agreed that
the information was “true and correct” by virtue of the Acknowledgment and Agreement
portion of the application, Section IX. In other words, he argues that her fraud claim is
barred because even if he placed inaccurate information on the application, it was
DeSimone’s responsibility to catch the “errors” and correct the information on the forms.4
In light of DeSimone’s sworn testimony, for purposes of this motion, the court finds
that a reasonable juror could find that Fendelet knew that certain information on the
application was false when he processed the loan application and he proceeded with that
knowledge in an effort to obtain approval for the loan. Even if that is the case, however, and
without relying on Fendelet’s Acknowledgment and Agreement defense, DeSimone’s
claims of fraud and fraudulent misrepresentation do not survive summary judgment.
DeSimone must produce sufficient evidence to create a genuine issue of fact that
Fendelet made the false statements, or in this case, placed the false information on the
application, with the intent to deceive DeSimone and in an effort to induce DeSimone to act
on that information. She must also show that she justifiably relied on the information and
suffered injury. It is here that her fraud claims falter. DeSimone knew the truth concerning

3

The notation next to the figure of $16,667 on the application is “nv,” presumably
meaning “not verified.”
4

The issue here is not “if a mortgage loan officer places false income information on the
application in an effort to convince underwriting to approve a loan, can the loan applicant who
did not provide such information later be held accountable for civil or criminal liability?” Here,
there is no claim against the loan applicant, DeSimone. Although under these circumstances
DeSimone cannot prove a case of fraud against Fendelet, it does not mean by virtue of this
ruling that DeSimone committed any type of fraud in providing information for the application.

7

her financial circumstances. She knew she did not earn $200,000 a year. She knew that
she had to borrow equity from jointly held property for her down payment. She knew she
did not have a $20,000 bank account with Bank of America. In short, DeSimone was not
deceived by nor was she induced to act upon the inaccuracies on the loan application.
DeSimone has not presented evidence sufficient to support all of the elements of her claims
of fraud and fraudulent misrepresentation against Fendelet and Quicken Loans based on
the 2007 loan application.
In addition to these allegations of fraudulent activity, DeSimone alleges fraud in
connection with the “Second Home Rider.” DeSimone asserts that she was not given the
loan for which she applied, a primary residence loan. She argues that because she did not
qualify for a primary residence loan, underwriting personnel required the lender to change
the type of loan to a Second Home loan, and that she was not informed of this “last minute
change.” She further argues that the harm done to her with the switch was her loss of tax
exemption benefits, her inability to live in the Real Estate full-time, and her inability to rent
the Real Estate to others.
Although there is no evidence that DeSimone was given written notice of the Second
Home Rider prior to closing, the loan application itself indicates in two places that the loan
was not for a primary residence. (Section II and Section VII(l) of loan application). In
addition, the Second Home Rider did not prevent DeSimone from residing in the Real
Estate full-time. The rider required her to “occupy, and [ ] only use, the Property as
Borrower’s second home,” but it also required her to “keep the Property available for
Borrower’s exclusive use and enjoyment at all times.” It is true that the Second Home Rider
did not permit any shared ownership arrangement or rental agreement, but when she
purchased the Real Estate, it was DeSimone’s intention to live there full-time.
DeSimone does not allege that Fendelet or Quicken Loans informed her that she
could rent the property or that she had been approved for a primary residence loan.
Therefore, the circumstances surrounding the Second Home Rider did not involve false
statements. In addition, DeSimone has not demonstrated that if she had known she would
not be permitted to rent the Real Estate, she would not have entered into the loans. Indeed,
the Second Home Rider was imposed in 2007, and yet she proceeded with the 2008
refinance mortgage which also had the rider. Further, her alleged injuries are not
supported. She alleges that at some point she had to move back to New Jersey because
the Real Estate was uninhabitable. The Second Home Rider did not prevent her from
renting the home if it was allegedly uninhabitable for anyone. Rather, the alleged condition
of the home would prevent it from being rented. Lacking each of these essential
components of her claim, Fendelet and Quicken Loans are entitled to summary judgment
as to this claim of fraud.
The final type of fraud to be considered is constructive fraud. Unlike actual fraud,
intent to deceive is not an element of constructive fraud. Rather the law infers fraud from
the relationship of the parties and the surrounding circumstances. American Heritage
Banco, Inc. v. Cranston, 928 N.E.2d 239, 246 (Ind.Ct.App. 2010). The five elements of
constructive fraud under Indiana law are:

8

(i) a duty owing by the party to be charged to the complaining party due to
their relationship; (ii) violation of that duty by the making of deceptive material
misrepresentations of past or existing facts or remaining silent when a duty
to speak exists; (iii) reliance thereon by the complaining party; (iv) injury to
the complaining party as a proximate result thereof; and (v) the gaining of an
advantage by the party to be charged at the expense of the complaining
party.
Demming v. Underwood, 943 N.E.2d 878, 892 (Ind.Ct.App. 2011) (internal quotation
omitted).
With regard to the claim for constructive fraud, the first element DeSimone must
prove is that Quicken Loans and Fendelet owed a duty to DeSimone due to their
relationship. In this case, the relationship between DeSimone and Quicken Loans/Fendelet
was only premised on the fact that DeSimone was a borrower of money from Quicken
Loans and Fendelet was the loan officer employed by Quicken Loans. This type of
relationship does not impose a special duty. See American Heritage Banco, 928 N.E.2d at
246 (generally, lender/borrower relationship is not a special relationship of trust and
confidence). “Absent special circumstances, a lender does not owe a fiduciary duty to a
borrower.” Wilson v. Lincoln Federal Sav. Bank, 790 N.E.2d 1042, 1047 (Ind.Ct.App. 2003).
Here, DeSimone has not shown any special circumstances that would give rise to a
fiduciary relationship between herself and Quicken Loans as a lender or Fendelet as a loan
officer. In addition, as to the fifth prong of a claim of constructive fraud, DeSimone has not
shown that Quicken Loans and Fendelet gained some advantage at DeSimone’s expense.
Absent a genuine issue of fact as to these elements of constructive fraud, Quicken Loans
and Fendelet are entitled to summary judgment as to this claim.5
Conclusion
For the reasons set forth in this Entry, the motion to dismiss and motion for summary
judgment filed by defendants Quicken Loans, Title Source, and Fendelet [43] is granted
and the claims against these defendants are dismissed. This does not resolve all claims
against all defendants. No final partial judgment shall issue at this time.
IT IS SO ORDERED.
_______________________________
06/20/2011

Date:

5

Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Because DeSimone’s claims of fraud do not survive summary judgment, the court need
not discuss any claim of civil conspiracy to commit fraud. “[C]ivil conspiracy is not an
independent cause of action.” American Heritage, 879 N.E.2d at 1115. See Huntington Mortg.
Co. v DeBrota, 703 N.E.2d 160, 168 (Ind. Ct. App. 1998)(defendant entitled to summary
judgment where there was no unlawful act which could sustain claim of civil conspiracy).

Distribution:
Neal F. Bailen
STITES & HARBISON, LLP
[e-mail]
Douglas B. Bates
STITES & HARBISON, LLP
[e-mail]
April O Davis
PLUNKETT COONEY, P.C.
[e-mail]
Elizabeth J. Wysong
GOODIN ABERNATHY LLP
[e-mail]
Robert D. Zink
GOODIN ABERNATHY LLP
[e-mail]
Susan M. DeSimone
904 Mason Run
Pine Hill, NJ 08021