STATE OF ILLINOIS ) COUNTY OF COOK ) IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT CHANCERY DIVISION CITIMORTGAGE INC., SUCCESSOR BY ) REASON OF MERGER WITH CITIFINANCIAL ) MORTGAGE COMPANY, IN., ) Plaintiff ) ) v. ) No. 06 CH XXXX ) DANIEL W. ZABRISKE, DIANE R. ) Hon. Darryl B. Simko ZABRISKE F/K/A DIANE R. NELSON ) STATE OF ILLINOIS, UNKNOWN OWNERS ) and NONRECORD CLAIMAINTS ) PLAINTIFF S MOTION TO STRIKE AFFIRMATIVE DEFENSES Now comes Plaintiff, Citimortgage, Inc., by and through its attorneys, Hauselman, Rappin & Olswang, Ltd., and moves to strike the Affirmative Defenses filed by Defendants Daniel and Diane Zabriske, as insufficient as a matter of law, and states as follows: 1. On November 21, 2006, Citimortgage filed its verified Statutory Amended Complaint for Foreclosure of Mortgage against the Zabriskes. A copy of the Amended Complaint is attached as Exhibit 1. 2. The Complaint alleges, inter alia, that the Zabriskes, on July 17, 2002, executed and delivered a Note in the amount of $108,000.00 secured by a Mortgage on their real estate to Universal Financial Group, Inc. The Note and Mortgage were subsequently assigned to Citifinancial Mortgage Company, Inc. 3. On December 21, 2006, the Zabriskes filed their Answer. A copy of the Answer is attached as Exhibit 2.
4. The Answer asserts three Affirmative Defenses: 1) a violation of the Truth in Lending Act (TILA) by Universal; 2) fraud in the inducement based upon those alleged violations of the TILA by Universal; and 3) a violation of the Real Estate Settlement Procedures Act (RESPA) by Citifinancial. 5. Universal is not a party to this action. Standard to Strike Pleadings 6. Under 2-615 of the Illinois Code of Civil Procedure, 735 ILCS 5/2-615, any pleading which is substantially insufficient in law may be stricken. Federated Equipment & Supply Co. v. Miro Mold & Duplicating Corp., 166 Ill. App. 3d 670, 677 (2 nd Dist. 1988). Violation of the Federal Truth in Lending Act by Universal 7. The Zabriskes allege that Universal violated Regulation Z, 12 C.F.R. 226.19(b), under 1640 et seq. of TILA. 8. 1640 of TILA provides a one-year statute of limitations for actions brought in any court of competent jurisdiction. 15 U.S.C.S. 1640(e) (2007). Where the loan is secured by the borrower s home, 1635 extends the right of rescission for three years if the lender has failed to provide material disclosures pursuant to TILA. 9. The three-year limitations period in 1635(f) is an absolute bar to actions based upon TILA violations after its expiration. Beach v. Ocwen Fed. Sav., 523 U.S. 410, 419 (1998). 10. However, the limitations provisions of TILA do not prevent a party from raising an alleged violation as a defense by recoupment or set-off in an action to collect the debt brought more than one year from the alleged violation. - 2 -
11. The three-year extended period available to exercise the right to rescind expired in 2005, and TILA provides no right of rescission to the Zabriskes, but may merely provide a defense by recoupment or offset. Id. 12. The Zabriskes have no TILA affirmative defenses to foreclosure since their claim is barred by the TILA statute of limitations. 15 U.S.C.S. 1640(c); 1635(f). 13. Furthermore, even if the Zabriskes had a claim against Universal, 1641 limits liability of assignees, like Citifinancial, to violations which are apparent on the face of the disclosure statement and other documents assigned. 14. The apparent on its face limitation imposes no duty or specialized awareness of Universal s practices to Citifinancial as its assignee. See Jackson v. South Holland Dodge, Inc., 312 Ill. App. 3d 158, 163 (1 st Dist. 2000) ( apparent on its face has no specialized meaning for entities presumed familiar with the TILA); see also Taylor v. Quality Hyundai, 150 F.3d 689, 694 (7th Cir. 1998). 15. The Zabriskes also allege that Universal s July 17, 2002 TILA Disclosure Statement is untrue or misleading and misstates potential increases in the monthly payment, misstates the finance charge over the life of the loan, fails to disclose the variable rate index and does not indicate that the figures are estimates. Affirmative Defenses, p. 4 4. 16. However, the figures on the TILA disclosure statement contain no mathematical error, nor is any other facially apparent error. 17. Therefore, under 2-615 of the Illinois Code of Civil Procedure, Zabriskes First Affirmative Defense should be stricken as insufficient as a matter of law. - 3 -
Fraud in the Inducement 18. As a second affirmative defense, the Zabriskes allege fraud in the inducement against Universal based upon differences between the July 9, 2002 estimated TILA disclosures provided prior to closing and the July 17, 2002 TILA disclosures provided at closing. 19. TILA does not include fraud as a cause of action but merely provides rights to disclosure and remedies for failure to provide those disclosures. 20. Because the fraud affirmative defense is directed only at Universal, and identifies only actions taken by Universal, and because Universal is not a party to this action, this defense is unavailable against the Citifinancial. 21. The Zabriskes do not allege Citifinancial s participation in the purportedly fraudulent disclosures made by Universal prior to the assigning of the loan to Citfinancial. 22. Therefore, the second affirmative defense is defective and should be stricken pursuant to 2-615 because it is legally insufficient to state a claim upon which the Zabriskes can be granted relief. See Federated Equipment & Supply Co., 166 Ill. App.3d at 677. 23. As stated above, 1641 limits liability of assignees to violations which are apparent on the face of the document. 24. The disclosures are not fraudulent on the face of the documents. There is no legal requirement that the disclosed estimated figures must match the closing disclosures. 25. Furthermore, an assignee, like Citifinancial, is exempt from the alleged fraudulent conduct of a predecessor where the assignee had no knowledge of, or part in, the alleged fraud. Jarvis v. S. Oak Dodge, 201 Ill. 2d 81, 93 (2002). - 4 -
26. Because the Zabriskes have not alleged Citifinancial s participation in any fraudulent disclosures, and because the disclosures are not fraudulent on their face, their second affirmative defense should be stricken. The Real Estate Settlement Procedures Act 27. The Zabriskes third affirmative defense alleges they were not provided proper notice of the transfer of the servicing of their mortgage as required by 2605(c) of the Real Estate Settlement Procedures Act (RESPA). 12 U.S.C.S. 2605(c) (2007). 28. 2605(i)(3) defines a servicer as the entity that receiv[es] any scheduled periodic payments from a borrower pursuant to the terms of any loan, including amounts for escrow accounts described in section 2609 of this title, and making the payments of principal and interest and such other payments with respect to the amounts received from the borrower as may be required pursuant to the terms of the loan. 29. This includes the entity who makes or holds a loan only if such entity also services the loan. 2605(i)(3). 30. Servicing of the Zabriskes loan has remained with Citifinancial Loan Servicing since the inception of the loan. A copy of the loan payment history showing the address for making scheduled periodic payments is attached as Exhibit 3. 31. 2615 specifically states that the section in no way shall affect the validity or enforceability of any... mortgage. Therefore, RESPA does not provide a defense to foreclosure for nonpayment. 1 32. Although foreclosure which results from a servicers violation of 2605 may be a compensable injury under RESPA, see Johnstone v. Bank of America, 173 F.Supp. 2d 809, 813-1 Although Section 2605(f) of RESPA provides for actual damages and some costs to parties who suffer actual injury from a violation of the section, Johnstone v. Bank of America, 173 F.Supp. 2d 809, 813-17, a potential claim for damages is not an affirmative defense to foreclosure or a mortgage. Defenses to a foreclosure are the traditional equitable defenses. First Federal Sav. & Loan Assoc. v. Royal Faubion, 131 Ill. App. 3d 368, 369 (1 st Dist. 1985). - 5 -
14, the Zabriskes default did not result from any alleged failure to provide proper notice of transfer nor from the alleged failure to respond to their request for a transaction history. 33. Furthermore, the mortgage was assigned to Citifinancial on February 3, 2003, and the Zabriskes loan did not go into default until May 1, 2006. For more than three years after the assignment of the loan to Citifinancial, the Zabriskes payments were made and properly credited. 34. The Zabriskes further allege they were not provided a copy of their transaction history upon request in violation of 2605(e) of RESPA. 35. 2605(e) imposes a duty upon servicers to respond to qualified written requests which 2605(e)(1)(B) defines as: (B) Qualified written request. For purposes of this subsection, a qualified written request shall be a written correspondence, other than notice on a payment coupon or other payment medium supplied by the servicer, that-- (i) includes, or otherwise enables the servicer to identify, the name and account of the borrower; and (ii) includes a statement of the reasons for the belief of the borrower, to the extent applicable, that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower. 12 U.S.C.S. 2605(e)(1)(B) 36. The Zabriskes failed to identify or attach the qualified written request to which they allege Citimortgage did not respond. 37. Because the Zabriskes have not plead any facts which would identify the qualified written request which allegedly went ignored, it is substantially insufficient in law and should be stricken. 38. The Third Affirmative Defense, therefore, is defective and should be stricken under 2-615 of the Illinois Code of Civil Procedure, 735 ILCS 5/2-615. Federated Equipment & Supply Co., 166 Ill. App.3d at 677. - 6 -
Wherefore, Citimortgage respectfully requests this Court strike the Defendant s Affirmative Defenses. Respectfully Submitted, Citimortgage, Inc., By: One of its Attorneys - 7 -