Sinclair ex rel. Wren v. McLean Cnty. Bd.

ARIES SINCLAIR, next friend of Morris L. Wren, Plaintiff, v. MCLEAN COUNTY BOARD, JOHN/JANE DOES McLean County Recorder, Clerk,Treasurer, Tax Collector, Trustee, Tax Assessor,BANK OF AMERICA CAPITAL CORPORATION,KEVIN TUUK, HABITAT FOR HUMANITY of McLean County,and COUNTRYWIDE HOME LOANS, INC.,Subsidiary of Bank of America Capital Corporation, Defendants.

Case No. 20-1082

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS PEORIA DIVISION

July 22, 2020

ORDER AND OPINION

This matter is now before the Court on Motions to Dismiss Plaintiff's Complaint filed by Defendants McLean County Board, John/Jane Does from the McLean County Recorder, Clerk, Treasurer, Tax Collector, Trustee, and Tax Assessor (collectively known as "McLean County"), Bank of America Capital Corporation ("BACC"), Kevin Tuuk ("Tuuk"), Habitat for Humanity of McLean County ("Habitat"), and Countrywide Home Loans, Inc. ("CHLI"). ECF Nos. 23, 26, 30, 32, 45. Defendant BACC has also filed a Motion for Extension of Time to File Exhibit. ECF No. 42. For the reasons stated below, Defendants' Motions to Dismiss are GRANTED and Defendant BACC's Motion for Extension of Time is MOOT.

BACKGROUND

Aries Sinclair ("Plaintiff") has asserted a fiduciary capacity and has brought forth her Complaint as next friend on behalf of Morris L. Wren ("Borrower") regarding real properties.¹ The real properties at issue are: 1104 S. Oak Street, Bloomington, Illinois (the "1104 Property") and 1104 ½ S. Oak Street, Bloomington, Illinois (the "1104 ½ Property") (collectively known as "Properties"). The property index number ("PIN") for the 1104 Property is 21-09-158-014 and the PIN for the 1104 ½ Property is 21-09-158-015.

Borrower executed a warranty deed on the Properties and used CHLI as the lien holder and escrow agent for the payment of property taxes. On May 31, 2001, the deed was recorded in the official record of McLean County in deed book 45. On January 14, 2004, CHLI executed a Release of Mortgage or Trust Deed by Corporation ("Release of Mortgage") in which it formally remised, released, conveyed, and quit claimed the Properties to Borrower. On January 30, 2004, the Release of Mortgage was recorded in the Recorder's Office, McLean County, Illinois. The first page of the Release of Mortgage listed the full PIN of the 1104 Property, but not for the 1104 ½ Property. At the same time, the Release of Mortgage included a section titled "Legal Description Attached" containing the following information:

Tract 1: The South 64 1/2 feet of Lot 3 in Assessor's Subdivision of Block 12 in James Miller's Addition to the City of Bloomington, in McLean County, Illinois. Tract 2: The North 1/2 of Lot 6 in Assessor's Subdivision of Block 12 in James Miller's Addition to the City of Bloomington, in McLean County, Illinois. Tax #21-09-158-014; Book 45. Tax #21-09-158-015; Book 45.

Plaintiff asserts that, by omitting the PIN for the 1104 ½ Property on the first page, it was never formally remised and released to Borrower. As a result, the tax bills were never sent to Borrower. Instead, the bills were sent to CHLI for the 2004-2009 tax years. According to Plaintiff,Borrower was notified that his property was sold in a tax sale in 2006, but Borrower later redeemed the property through the McLean County Clerk on May 8, 2006. Plaintiff contends that despite the redemption in 2006, the McLean County Treasurer and Collector continued to send tax bills to CHLI in 2007 and 2008. Plaintiff states that Borrower received a tax bill in 2009 from McLean County that was due on June 8, 2009, and payment was recorded on June 12, 2009.

On August 5, 2009, the 1104 ½ Property was deeded to Charles Bellemey ("Bellemey") at a public sale of real estate for non-payment of taxes. Plaintiff also believes Borrower redeemed the property from Bellemey in 2006. On September 9, 2009, the deed was recorded in McLean County. Plaintiff asserts Borrower purchased the 1104 ½ Property from Bellemey in 2010, but Bellemey continued to receive tax bills for this property and did not forward them to Plaintiff. On October 2, 2012, at Borrower's request, Plaintiff contends that Bellemey executed a warranty deed to Metro Bible and Health Center, a church in Bloomington, Illinois.

On November 12, 2012, the 1104 ½ Property entered lis pendens status. Plaintiff asserts that around this time, Bellemey executed a warranty deed for this property while it had overdue taxes and was in the process of being sold to a bank or trustee. On October 21, 2014, the 1104 ½ Property was sold to Tuuk at a trustee sale held by the McLean County Board. Additionally, the McLean County Clerk deeded the property to Tuuk pursuant to a tax deed.

On March 1, 2020, Plaintiff filed pro se a Complaint seeking punitive damages and declaratory judgment that the 1104 ½ Property be returned. ECF No. 1. Plaintiff asserted four claims: (1) a violation of the Fifth Amendment against all Defendants for denying Plaintiff due process resulting in an unlawful taking of property (Count I); (2) declaratory relief against all Defendants to set aside and cancel Tax Deed No: 2010-TX-1 (01), Warranty Deed No: 2009-00028831, Warranty Deed No: 2014-00020123, Quitclaim Deed No. 2020-2607, and to restrainand enjoin Defendant Habitat from acting on any such property deeds (Count II); (3) breach of fiduciary duty against CHLI for failing to forward tax bills to Borrower, and against McLean County for failing to accurately record the Release of Mortgage (Count III); and (4) unjust enrichment against Defendants Tuuk and Habitat resulting from the tax sale and use of the 1104 ½ Property (Count IV). Id. On May 1, 2020, Defendant BACC filed a Motion to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). ECF No. 23. On May 4, 2020, Defendant Tuuk filed a Motion to Dismiss under Rule 12(b)(6). ECF No. 26. On May 6, 2020, Defendant McLean County filed a Motion to Dismiss under Rules 12(b)(1) and 12(b)(6). ECF No. 30. On May 14, 2020, Defendant Habitat filed a Motion to Dismiss under Rules 12(b)(1) and 12(b)(6). ECF No. 32. On June 15, 2020, Plaintiff filed an Amended Complaint. ECF No. 35. The allegations remained the same other than Plaintiff amending Count III from a breach of fiduciary duty to a claim of gross negligence against CHLI. Id. at 7. CHLI was also added to the caption. Id. at 1. On June 15, 2020, Plaintiff filed a response to Defendant BACC's Motion to Dismiss. ECF No. 36. On July 1, 2020, Plaintiff filed her response to the remaining Motions to Dismiss. ECF No. 39. On July 7, 2020, Defendant BACC filed a Motion for Extension of Time to File Exhibit. ECF No. 42. On July 22, 2020, Defendant CHLI filed a Motion to Dismiss under Rules 12(b)(1) and 12(b)(6). This Opinion follows.

STANDARD OF REVIEW

I. Motion to Dismiss Complaint

When a plaintiff's amended complaint does not substantially differ from the original complaint, the court may rule on the defendant's motion to dismiss the original complaint. See Miller v. United States, No. 00-4009, 2000 WL 1141597, at *3 (C.D. Ill. June 5, 2000).

Here, the allegations against the Defendants who moved to dismiss Plaintiff's original Complaint have remained unchanged. The only difference from the original Complaint and the Amended Complaint is that Count III changed from a breach of fiduciary duty to a claim of gross negligence against CHLI, and CHLI was also added to the caption. Accordingly, the Court may proceed to analyze the Parties' arguments as if they were part of the same Complaint.

II. Rule 12(b)(1)

Dismissal under Rule 12(b)(1) is proper if a court lacks subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A motion to dismiss based on a plaintiff's alleged lack of standing is properly brought as a 12(b)(1) motion. See Retired Chicago Police Ass'n v. City of Chicago, 76 F.3d 856 (7th Cir. 1996); Leskovisek v. Ill. Dep't of Transp., 305 F. Supp. 3d 925, 929 (C.D. Ill. 2018). When ruling on a motion to dismiss for lack of subject matter jurisdiction under 12(b)(1), the court must accept as true all well-pleaded factual allegations and draw reasonable inferences in favor of the plaintiff. Rueth v. EPA, 13 F.3d 227, 229 (7th Cir. 1993). Additionally, the court "may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists." Capitol Leasing Co. v. Federal Deposit Insurance Corp., 999 F.2d 188, 191 (7th Cir. 1993) (internal quotations and citation omitted). When the court concludes that it lacks subject matter jurisdiction, the court must dismiss the complaint in its entirety. Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006).

III. Rule 12(b)(6)

Dismissal under Rule 12(b)(6) is proper if a complaint fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, a complaint must contain sufficient factual matter, which when accepted as true, states a claim for relief that isplausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plausibility means alleging factual content that allows a court to reasonably infer that the defendant is liable for the alleged misconduct. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007). A plaintiff's claim must "give enough details about the subject matter of the case to present a story that holds together" to be plausible. Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010). A court must draw all inferences in favor of the non-moving party. Bontkowski v. First Nat'l Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993).

When evaluating a motion to dismiss, courts must accept as true all factual allegations in the complaint. Ashcroft, 556 U.S. at 678. However, the court need not accept as true the complaint's legal conclusions; "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Bell Atlantic...