Schilke v. Wachovia Mortg., FSB

820 F.Supp.2d 825

Martha SCHILKE, both individually and as a representative of all other persons similarly situated, Plaintiff,

v.WACHOVIA MORTGAGE, FSB f/k/a World Savings Bank, FSB, and American Security Insurance, Inc., Defendants.

Case No. 09–cv–1363.

United States District Court,N.D. Illinois,Eastern Division.

Sept. 28, 2011.

John Stephen Xydakis, Law Office of John S. Xydakis, P.C., Forest Park, IL, Thomas Francis Courtney, Jr., Thomas F. Courtney & Associates, Palos Heights, IL, for Plaintiff.

Franklin G. Burt, Jorden Burt LLP, Washington, DC, Meghan McKenna Sciortino, William Glenn Beatty, Johnson & Bell, Ltd., Mark Bruce Blocker, Ariella L. Omholt, Michael Christian Andolina, Sidley Austin LLP, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

ROBERT M. DOW, JR., District Judge.

This matter is before the Court on Plaintiff's motion for leave to file a third amended complaint [80]. For the reasons set forth below, Plaintiff's motion for leave to file a third amended complaint [80] is denied and the claims against Defendants Wachovia Mortgage FSB and American Security Insurance, Inc. are dismissed with prejudice.

I. Background ¹A. Procedural Background

This putative class action arises out of a home mortgage loan that Plaintiff Martha Schilke obtained from World Savings Bank FSB, now known as Wachovia Mortgage FSB (“Wachovia”), and the subsequent purchase of hazard insurance for the mortgaged property by Wachovia from American Security Insurance Company (“ASI”). On March 29, 2009, Plaintiff filed a first amended class action complaint alleging various state law claims against Defendants Wachovia and ASI based on the premiums that she was charged for the lender placed insurance. Wachovia and ASI both filed motions to dismiss, which the Court granted on March 30, 2010, 705 F.Supp.2d 932 (2010). In the opinion, the Court concluded that Plaintiff's claims against Defendant Wachovia were expressly preempted by the Home Owners Loan Act (“HOLA”), 12 U.S.C. §§ 1461 et seq., and the implementing regulations promulgated by the Office of Thrift Supervision (“OTS”), 12 C.F.R. §§ 560.1 et seq. The Court further concluded that all of Plaintiff's claims against Defendant American Security Insurance Company (“ASI”)—apart from her claim for injunctive relief under the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), 815 ILCS § 505/1, et seq.—were barred by the filed rate doctrine. The Court determined that Plaintiff's ICFA claim against ASI failed because Plaintiff was unable to establish the element of proximate causation.

Plaintiff then filed a motion for leave to file a second amended complaint pursuant to Federal Rules of Civil Procedure 15(a)(2) and to vacate the judgment pursuant to Rule 60(b)(6) and a motion to alter or amend the judgment pursuant to Rule 59(e). In December 2010, the Court granted Plaintiff's motion to alter or amend the judgment, vacating the judgment entered on March 30, 2010, 705 F.Supp.2d 932, and reinstating Plaintiff's claim for injunctive relief against ASI under the ICFA; however, the Court denied Plaintiff's motion for leave to file a second amended complaint. The Court advised Plaintiff that if she believed she could cure the deficiencies noted in the Court's two lengthy opinions, she had thirty days in which to file a motion for leave to file another proposed amended complaint.

On February 10, 2011, Plaintiff filed a motion for leave to file third amended complaint, to which both Defendants responded. Defendant ASI attached exhibits to their response brief, maintaining that two of the exhibits establish the futility of the amendment based on a lack of jurisdiction over a newly proposed Defendant, Assurant, Inc. Plaintiff responded with a motion to strike ASI's exhibits [88] as well as a motion for sanctions [93]. Plaintiff also seeks a stay of any decision regarding personal jurisdiction as to Assurant until Plaintiff has completed “jurisdictional” discovery. Finally, Plaintiff filed a motion to cite additional authority [113].

B. Factual Background

In March 2006, Schilke entered into a home mortgage loan with World Savings Bank FSB, which is now Wachovia. The mortgage agreement required Schilke to maintain hazard insurance for the mortgaged property. The mortgage further provided that if Schilke failed to maintain hazard insurance, Wachovia could “do and pay for whatever it deems reasonable or appropriate to protect [its] rights in the Property,” including “purchasing [the] insurance required.” The mortgage expressly advised Schilke that insurance purchased by Wachovia “may cost more and provide less coverage than the insurance [plaintiff] might purchase.”

At closing, Schilke also signed a Notice of Fire/Hazard Insurance Requirement which further explained her insurance obligations. It provided that if Wachovia did not receive evidence of insurance coverage, “we may at our sole option, obtain an insurance policy for our benefit only, which would not protect your interest in the property or the contents.” This disclosure also stated that in the course of purchasing such replacement insurance, Wachovia “may assess a processing fee and our affiliated insurance agent could collect a commission from the insurer. The cost of such insurance could be at least two to five times greater and provide you with less protection than insurance you could purchase directly from an insurer.”

Schilke contracted to purchase hazard insurance for the mortgaged property through Grange Mutual Insurance on January 1, 2008. Schilke paid a premium of $841 for the Grange insurance policy, which had a $500 deductible.

On May 9, 2008, Wachovia sent Schilke a letter requesting insurance information for the property. The letter requested proof of insurance within 14 days, explained that “[f]ailure to provide this information may result in a policy being purchased by us at your expense to protect our interest,” and advised Schilke that the policy Wachovia would purchase would have a premium of $2,034. The letter advised that Schilke's monthly mortgage payment would be adjusted to cover the cost of the insurance and disclosed that the “premium may include compensation to the insurer and Wachovia Mortgage for tracking customers' compliance with Wachovia Mortgage Insurance requirements.” Id.

Schilke did not respond to Wachovia's May 9, 2008 letter. On June 12, 2008, Wachovia sent a second notice requesting evidence of insurance and informing Schilke that it had placed a temporary insurance policy on the property. The June 12 notice contained the same disclosures as the May 9 notice and also disclosed that the loan premium was higher than most other policies because “the American Security Insurance Company will insure your property automatically without inspecting it.” Again, Plaintiff did not respond or notify Wachovia that she had secured property insurance.

On July 18, 2008, Wachovia sent Schilke a letter notifying her that it had purchased insurance from ASI with an annual premium of $2,034.² The letter advised Schilke that “[t]he cost of this policy is probably greater than the cost of comparable coverage obtained through your own insurance agency” and that “[t]he costs may include compensation to the Insurer and Wachovia Mortgage.” The ASI policy had an effective date of April 8, 2008, the date on which Plaintiff's private insurance had lapsed. The notice advised Schilke that she still could obtain her own coverage, and that if she did so, Wachovia would return to her any premium paid to ASI that proved to be unnecessary.

The ASI policy covered Schilke for a smaller loss than did her previous policy. Schilke alleges that the insurance premium that she was charged for the ASI policy included undisclosed fees—which Schilke terms “kickbacks”—paid to Defendants for the placement, maintenance, and servicing of the insurance. Schilke alleges that she “could not know that the amounts being billed as ‘insurance premiums' were not, in fact, the true cost of the actual insurance coverage.” Schilke also complains that Defendants knew that they were charging Plaintiff for “backdated insurance” as they knew that no loss had been claimed since Plaintiff let her private insurance lapse.

Schilke's proposed third amended complaint organizes her claims into three separate groups: (1) claims which only seek injunctive relief prohibiting alleged payments from ASI to Wachovia (Counts 1–4), (2) claims which seek damages for such alleged payments (Counts 5–12), and (3) claims which seeks damages for the “backdating” of the ASI insurance (Counts 13–21). With respect to the injunctive relief claims, in her prior complaints, Plaintiff alleged that Wachovia violated the Illinois Consumer Fraud Act (the “ICFA”). In the most recent complaint, Plaintiff has dropped that claim as to Wachovia, and now asserts that claim only against ASI, and seeks only injunctive relief, and not damages. However, Plaintiff now alleges that Wachovia assisted ASI in committing consumer fraud, and asserts three additional claims for aiding and abetting (Count II), acting “in concert” (Count III), and conspiracy (Count IV). These claims are included in the section entitled “Counts for Injunctive Relief,” although Plaintiff has not identified what injunctive relief, if any, she is seeking against Wachovia.

Counts V–XII seek damages for the alleged “kickbacks” that were paid in connection with the lender-placed insurance. Plaintiff brings claims against Wachovia for conversion (Count V), breach of contract (Count VI), unjust enrichment in quasi contract (VII), and unjust enrichment in tort (VIII); the remainder of the counts are against ASI for aiding and abetting (Count IX), acting “in concert” (Count X), conspiracy (Count XI), and intentional interference (Count XII). Plaintiff's breach of contract claim alleges that, because the mortgage does not mention payment of any amounts to Wachovia, it was a breach of...