Firstmerit Bank, N.A. v. Koenig, Patricia Ann

Filing 12

ORDER granting 4 Motion to Dismiss. Amended complaint due 2/14/14. Signed by District Judge Barbara B. Crabb on 2/3/14. (krj)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - FIRSTMERIT BANK, N.A.,
OPINION AND ORDER
Plaintiff,
13-cv-534-bbc
v.
PATRICIA ANN KOENIG,,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Defendants Patricia Ann Koenig, Timothy A. Koenig, Jill M. Koenig, Timothy A.
Koenig, LLC, and the Patricia Ann Koenig Revocable Trust dated October 28, 1998 (for
itself and on behalf of Patricia Ann Koenig in her capacity as trustee), have moved to dismiss
the complaint filed by plaintiff FirstMerit, N.A. Defendants contend that the allegations of
the complaint fail to state a plausible claim on plaintiff’s behalf. They say that plaintiff has
not shown that is entitled to enforce the debt on which it is suing, which is a debt owed to
Citizens Bank by an entity known as “K-Care” and guaranteed by defendants.
Although plaintiff maintains that it can sue on the debt because it is a survivor of a
merger in which Citizens Bank was merged into plaintiff, defendants dispute its standing.
They argue that plaintiff must show that the merger included an enforceable transfer of the
debt obligations alleged in the complaint, not just that plaintiff was a party to a merger with
Citizens Bank.

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All that plaintiff alleged on this issue in its complaint is that it is a survivor of a
merger with Citizens Bank. Dkt. #1, at 4. In its brief in opposition to defendants’ motion,
it says that mergers such as the one it entered into with Citizens Bank are subject to the
National Bank Consolidation and Merger Act and that the applicable statute makes it clear
that the survivor of a merger is deemed “to be the same corporation as each bank or banking
association involved in the merger,” 12 U.S.C. § 215(e), with the right to enforce the loans
and loan documents of the predecessor bank. Had it included such an allegation in its
original complaint, defendants might not have brought their motion.
However, defendants point out one more deficiency: the applicable statute authorizes
transfers of interests between banks only when the merger meets certain requirements under
12 U.S.C. § 1831u. Plaintiff has not alleged that its merger with Citizens Bank necessarily
resulted in the transfer of the relevant documents.
Defendants’ motion will be granted, but I will give plaintiff an opportunity to file an
amended complaint. Plaintiff may have until February 14, 2014 to do so.

ORDER
IT IS ORDERED that the motion of defendants Patricia Ann Koenig, Timothy A.
Koenig, Jill M. Koenig, Timothy A. Koenig, LLC, and the Patricia Ann Koenig Revocable
Trust dated October 28, 1998 (for itself and on behalf of Patricia Ann Koenig in her capacity
as trustee), to dismiss plaintiff’s complaint is GRANTED. Plaintiff may have until February

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14, 2014 to file an amended complaint.
Entered this 3d day of February, 2014.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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