Kane v. Bank of Am., N.A.

338 F. Supp. 3d 866
CourtDistrict Court, E.D. Illinois
DecidedMarch 9, 2018
Docket13 C 8053
StatusPublished
Cited by7 cases

This text of 338 F. Supp. 3d 866 (Kane v. Bank of Am., N.A.) is published on Counsel Stack Legal Research, covering District Court, E.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kane v. Bank of Am., N.A., 338 F. Supp. 3d 866 (illinoised 2018).

Opinion

Gary Feinerman, United States District Judge

Thomas Kane alleges in this suit that Bank of America and Wells Fargo Bank committed common law fraud and violated the Illinois Consumer Fraud Act ("ICFA"), 815 ILCS 505/1 et seq. , in connection with their processing and denial of his requests for a mortgage modification. Doc. 55. The court stayed the suit under the doctrine set forth in Colorado River Water Conservation District v. United States , 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), pending resolution of an earlier filed foreclosure case in Illinois state court. Docs. 144-145 (reported at 2017 WL 2243055 (N.D. Ill. May 23, 2017) ). After the state case concluded, the Banks moved under Federal Rule of Civil Procedure 12(c) for judgment on the pleadings on the ground that the state judgment precludes Kane's claims here. Doc. 149. The motion is granted.

Background

As on a Rule 12(b)(6) motion, the court on a Rule 12(c) motion assumes the truth of the operative complaint's well-pleaded factual allegations, though not its legal conclusions. See St. John v. Cach, LLC , 822 F.3d 388, 389 (7th Cir. 2016) ; Adams v. City of Indianapolis , 742 F.3d 720, 727-28 (7th Cir. 2014). The court must also consider "documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice," along with additional facts set forth in Kane's brief opposing dismissal, so long as those additional facts "are consistent with the pleadings." Phillips v. Prudential Ins. Co. of Am. , 714 F.3d 1017, 1020 (7th Cir. 2013) (internal quotation marks omitted); see also N. Ind. Gun & Outdoor Shows, Inc. v. City of S. Bend , 163 F.3d 449, 452 (7th Cir. 1998). Among the matters subject to proper judicial notice are state court filings and judicial decisions. See Young-Smith v. Holt , 575 F. App'x 680, 682 (7th Cir. 2014) ; In re Salem , 465 F.3d 767, 771 (7th Cir. 2006). The facts are set forth as favorably to Kane as those materials allow. See Pierce v. Zoetis, Inc. , 818 F.3d 274, 277 (7th Cir. 2016). In setting forth the facts at this stage, the court does not vouch for their accuracy. See Jay E. Hayden Found. v. First Neighbor Bank, N.A. , 610 F.3d 382, 384 (7th Cir. 2010).

In 2006, Kane took out a $470,000 loan from Wells Fargo and secured it with a mortgage on his home. Doc. 55 at ¶¶ 86, 90. Wells Fargo transferred the mortgage to Bank of America, but continued to service it. Id. at ¶¶ 66-67. Kane sought a loan modification in 2009. Id. at ¶¶ 92-93. Thus began a long back-and-forth between Kane and the Banks over whether and how they *870might modify his repayment terms. Id. at ¶ 76. In the end, the Banks denied all of Kane's requests and proceeded with foreclosure. Id. at ¶ 85.

Litigation commenced in March 2011, when Bank of America filed a foreclosure case against Kane in the Circuit Court of Cook County, Illinois. Bank of Am., N.A. v. Kane , No. 2011 CH 11338 (Cir. Ct. Cook Cnty., Ill.) (complaint reproduced at Doc. 124-1 at 6-40). Well over two years later, in November 2013, Kane brought this suit against the Banks in federal court, alleging common law fraud and violations of the ICFA, the Racketeer and Corrupt Organizations Act ("RICO"), and the Fair Debt Collection Practices Act ("FDCPA"). Doc. 1. The gist of Kane's suit was and remains that the Banks strung him along without intending to modify his loans in order to milk extra late fees and interest from him.

This suit was initially assigned to Judge Marovich, who granted in part and denied in part the Banks' motion to dismiss. Doc. 23 (reported at 2014 WL 4198295 (N.D. Ill. Aug. 25, 2014) ). Kane then sought and obtained permission to file an amended complaint that did not include the RICO claims, the FDCPA claims, and some of the originally pleaded fraud claims. Doc. 40 (reported at 2015 WL 3798142 (N.D. Ill. June 17, 2015) ). The following day, the case was reassigned to the undersigned judge. Doc. 41. Kane then moved for reconsideration of Judge Marovich's rulings insofar as they precluded him from re-pleading his RICO claims. Doc. 44. The court denied that motion, Doc. 54, and Kane filed a second amended complaint, Doc. 55, which the Banks answered, Doc. 60. The court then urged the parties to get moving on discovery, which had only recently begun. Docs. 46, 61, 68.

Meanwhile, Kane in the state foreclosure case asserted as affirmative defenses the same fraud-based theories underlying his claims in federal court. Doc. 124-1 at 57-122. Bank of America twice moved to strike those defenses, prompting Kane to amend twice more. Id. at 124; Doc. 124-2 at 2-113, 115, 117-183. Kane's third and final amended affirmative defenses sounded in common law promissory fraud and violations of the ICFA, closely tracking the allegations of his federal complaint. Doc. 124-2 at 117-183. The state court struck those defenses with prejudice. Id. at 185, 187; Doc. 150-1.

Bank of America moved for summary judgment in the foreclosure case, Doc. 124-2 at 189, and the state court granted the motion, Doc. 133-1 at 5. The state court also issued a judgment for foreclosure and sale, and appointed a sale officer to auction the property. Id. at 9-13, 15; Doc. 150-3.

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Bluebook (online)
338 F. Supp. 3d 866, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kane-v-bank-of-am-na-illinoised-2018.