. . /
. °
| FEDERAL TRADE COMMISSION
t » WASHINGTON, D.C. 20580
. BUREAU OF .
: CONSUMER PROTECTION
vb: te tees Fee cates a Le
May 15, 1978

Mx. George F. Palcanis
Vice President and General Counsel
. Security Pacific Mortgage Corp.
i . - P.O. Box 2450
, Denver, Colorado 80201

Dear Mr. Palcanis:

i
' This is in reply to your letter of April 18, 197%
Cc requesting a clarification of our letter to you of
f April 13, 1978. (See Staff Interpretives, Fair Debt
i Collection Practices Act, Volume 1, page 11.)
4

It is our understanding that your letter refers
specifically to situations in which Security Pacific Mortgage
Corporation "... purchases 2 loam from another Iender,
| sells it to an investor and retains the servicing and
collection." Your concern centers around those instances
ot in which such a loan is delincuent at the time it is

1 purchased, is not returned to the seller and Security
Pacific commences collection efforts.

It is our opinion that if such ineidents are truly
| isolated as you suggest, and collection efforts with
Yespect to such loans do not occur in the course of
your business on a "regular" basis, as that word is used
in Section 803(6) of the Act, your organization would
not fit the definition of the term "debt collector",
and Security Pacific would not be subject to the Act.
The word “regularly” is commonly understood to mean
usually, normally, or customarily, and any determination
of whether your company functions as a “debt collector",
must be based in part on the application of the meaning
of those words to the collection activities engaged in by
ws Security Pacific.

- Further, if those consumer loans, which you describe
. in paragraphs two and three cf your March 21, 1978
letter are in default when sold cr qo into default
H aftcr they are sold, rctention of the servicing. and G
collec fon asnects of the loans would clearly subject 4.

a eee ~~ ees
~~



situation presented in Wood Acceptance. The statute now
reads: “(e) Any action under this section may be brought

in any United States district court, or in any other court of
competent jurisdiction, within one year from the date of the
occurrence of the violation. This subsection does not bar a
person from asserting a violation of this subchapter in an
action to collect the debt which was brought more than one
year from the date of the occurrence of the violation as a
matter of defense by recoupment or setoff in such action,

as otherwise proved by State law." 15 U.S.C. §

except

T640(e) (1982). Federal Deposit Ins, Corp, v. Ablin, 177

Ill, App.3d 390 (1988) 532 N.E.2d 379.

The occurrence in the instant case took place on December 8,
1969. The counterclaim by the Riddles was not filed until April
17, 1978. Public contends that since the statute of limitations

had expired, the Riddles should be barred from asserting the
cause of action in a counterclaim. We disagree.

We find the reasoning in Wood Acceptance Co. v. King (1974),
18 Dil. App.3d 149, 309 N.E.2d 403, persuasive here. Public

Finance corp. v. Riddle, 83 fil. App.3d 417 (1980) 403 N.E.2d
1316.

Plaintiff respectfully requests leave of Court to amend his Complaint to the
findings or supplement, whichever is determined most judicially prudent without waiving
any of his rights.

E.. UCC The Codified Common-law Of Agreements (XIV-XVIH and
XX-XXIV)
The UCC has derived from long standing common law of agreements/
contracts. Defendants would be woefully mistaken to presume the UCC not valid to
Plaintiff's argument. Ail one need do is peruse case law of financial creditor actions

against debtors for proof of the substance of the UCC.

1. Right To Adequate Assurance UCC § 2-609



Service List

Jefferey T. Mitchel Patrick Thomas Stanton
KONICEK & DILLION SCHWART, COOPER

21 W. State St. GREENBERG & Krause
Geneva, Illinois 180 N. LaSalle Street #2700
630/262-9659 Chicago, IL 60601

312/782-8416


notwithstanding the exclusi 1 age contained in
Séctions 803(6} (G) ¢zEy- (iid) of the Bees Section ‘
803(6) (G) (ii) has been interpreted to apply to the
original credit grantor and not a purchaser for value
before default. Section 803 (6) (G) (iii) applies in the
ease where a debt has been referred by the czeditor

to the person collecting the debt prior to the debt
going into default. Section 803(6} (G) (iii) is

best- illustrate? in the case involving a mortgage
servicing agreement between two banks, whereby one
bank agrees to service accounts of the forwarding bank.
The forwarded accounts, however, are not in default
when received. The exemption in Section 803 (6} (G) (iia)
would not apply where the servicing bank transfers

or sells the. accounts to- another: person but retains
collection authority on behalf of the new purchaser or
transferee.

Our response to your inquiry, containea in the
third Paragraph of this letter, is based on the

engage in any other Practice which would otherwise

bring it within the definition of debt collector for
reasons differant fron those suggested elsewhere in this
letter.

The views expressed herein represent the present
enforcement Dosition of Commission's staff and are not
necessarily the views of the Comaission. Accordingly,
they are not DSinding on the Commission.

Very truly yours,

Oka, Towtt:
DR

Alan D. Reffkin

Attorney
Division of Credit Practices



they will be liable for damages under both. Berryhill v. Rich Plan of Pensacola, 578 F.2d
1092(S5th Cir. 1978).

F. Due Process Against Non-State Actor

Yes, the due process claims are right around the corner and they come from the
highest court in the land. Plaintiff does not take kindly to these time consuming
violations of his Civil Rights and the frittering away of the Courts over burdened
resources. Just maybe the Defendants will have second thoughts the next time.
CONCLUSION

For the reasons stated herein Plaintiff respectfully requests the Court strike

Defendants motions to dismiss with prejudice, order the Defendants to brief the RESPA

action, and grant leave of Court to Amend the complaint pursuant to rule 15(a).

Respectfully submitted,

By: Chad F. Catuara

Chad F. Catuara

14540 Lavergne
Midlothian, Illinois 60445
(708) 597-1873

15



appears to be in the business of collecting debts with some $337 million in Real Estate
acquired through foreclosure as filed on page 4 of its consolidated statement of cash
flows for the 3% quarter of 2002. In the plain language of the FDCPA § 1692a(6\F) The
term “debt collector” does not include: (ii) concerns a debt that was originated by
such person. “...our role, when the language of a statute is plain, is to enforce that
statute according to its terms.” See, e.g., Central States v. Bell Transit Co., 22 F.3d 706,
710 (7th Cir. 1994). In no manner whatsoever can WaMu claim to be the originator of the
alleged debt in dispute. This “Bank” surely gives the distinct impression it collects debts.

2. Servicer Wamu’s Liability

Financial institutions attempts to muddy the paper trail is a typical everyday

practice. The ink on a supposed legitimate transaction hasn’t even dried and the
instrument has likely already been assigned to another party. In the instant case, WaMu
acquired the alleged Promissory Note through its acquisition of Home Savings of
America, then ultimately sold off the same to Fannie Mae. In reference to this course of
action Plaintiff references e Federal Trade Commission staff opinion letter dated May
15, 1978:

“It is our understanding that your letter refers specifically

to situations in which Security Pacific Corporation ‘...

purchases a loan from another lender, sells it to an investor

and retains the servicing and collection.’

‘Further, if those consumer loans, which you describe in

pargraphs two and three of your March 21, 1978 letter are

in default when sold or go into default after they are sold,

retention of the servicing and collection aspects of the loans

would surely subject Security Pacific to the requirements
of the Act not withstanding the exclusionary language


the court must accept as true all material allegations of the complaint and must construe
the complaint in favor of the non-moving party.” Trump Hotels & Casino Resorts, Inc. v.
Mirage Resorts, Inc., 140 F.3d 478, 483 (3d Cir. 1998). “A complaint should be
dismissed only if, after accepting as true all of the facts alleged in the complaint and
drawing all reasonable inferences in the non-moving party's favor, no relief could be
granted under any set of facts consistent with the allegations of the complaint.” Id. (citing
ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994)).

i FDCPA SUBJECT MATTER JURISDICTION IS NOT

DEPENDANT ON PROMISSORY NOTE.

Defendants contentions that Plaintiff Catuara’s Promissory Note theory is
groundless is a moot point counsel attempts to use to distract the Court. Plaintiff Catuara
will ignore these baseless arguments and focus on the actual settled law concerning
FDCPA claims. “[a]ction was not contingent on the validity of the underlying debt.
McCartney v. First City Bank, 970 F.2d 45 (5th Cir. 1992). “Whether the consumer had
incurred the alleged debt was a separate issue from his FDCPA claim.” Clark v.

Retrieval Masters Creditors Bureau, Inc., 185 F.R.D. 247 (N.D. Ill. 1999). Whether the

debt being collected was actually owed was irrelevant to determination of violation of
FDCPA. Adams v. First Federal Credit Control, Inc., 1992 WL 131121 (N.D. Ohio
1992).
I, PERSONAL JURISDICTION OVER WAMU INDIVIDUALS

Plaintiff Catuara states in his complaint heading: Jurisdiction and Venue 10,

“WaMu transact business in Iilinois and the conduct complained of occurred here.”


j

row THE NORTE Deucror unos’ | ED
EASTERN DIVISION APR 22 2099
cATUARA 5 er
Plaintiff, } §
} No, 1:03 CV 563
)
HEAVNER HANDEGAN et al, )
Defendants. } DOCKETED
) APR & 4 2003

MEMORANDUM IN SUPPORT OF

PLAINTIFF’S MOTION TO STRIKE
DEFENDANTS’ MOTIONS DIS) Ss

Plaintiff, Chad F. Catuara, submits this consolidated two part memorandum in
support of his 12(e) make more definite statement and 12(f) motion to strike Defendants’
motions to dismiss.

WAMU SPECIFIC AND PLEADINGS COMMON TO EACH PAR
L INTRODUCTION

Plaintiff's thirty-one count complaint arose through Washington Mutual’s
agent’s unfair and deceptive collection practices regarding the foreclosure action.
Plaintiff Catuara never succumbed to agreeing to the existence of a valid mortgage
transaction and insisted the WaMu Defendants concealed material facts operating without
his intent, knowledge, or authorization. However, the validity of the mortgage, at
present, is a non issue with regard to the FDCPA violations, which for the sake of judicial

economy, Plaintiff Catuara joined to this action. “When reviewing a motion to dismiss,

ai


‘Appx. I Mar. 8, 1996 Fair Debt Collection

Since IIS is covered by the Act, its collection communications must
also comply with the Act. Among other things, this means that the
letter referred to above must contain the following disclosures:

a) The letter must disclose that HIS is attempting to collect a debt
and any information obtained will be used for that purpose, in accor-
dance with Section 807(11);

b) The letter (or a written communication sent within 5 days) must
contain the information required by Section 809(a), including a state-
ment of the conswumer’s right to dispute the debt under Section 80%(b).

Without these disclosures, we think the letter would violate these
sections. In addition, if the name “Nationwide Message Delivery Ser-
vice” is not the true name of ITS’s business, the letter would also violate
Section 807(14), which requires that only the debt collector’s “true”
name be used,

Please note that this is only the opinion of Commission staff; as such,
it does not bind the Commission itself. If you have further questions,
please do not hesitate to contact me.

Sincerely,

John F. LeFevre
March 8, 1996

Gordon NJ. Kroft, Esq.

Tenney & Bentley

U1 West Washington Street

Suite 1900

Chicago, Hlinois 60602

Dear Mr. Kroft:

This is in response to your letter dated February 14, 1996, in which
you request a staff opinion regarding the Fair Debt Collection Prac-
tices Act (FDCPA). You ask whether your fitm complics with the
FDCPA when it attaches the notice that you enclosed with your letter
tocach summons. Under the principals that the Supreme Court set out
in Heinez v. Jenkins, law firms that ate “debt collectors” presumably
must include Section 809 notices in connection with every summons, if
the summons is the first communication with the consumer in connec-
tion with the collection of a debt. Moreover, while we do not, as a
matter of policy, approve specific language in collection notices, it does
not appear that your notice violates the FDCPA.

‘The views expressed herein represent an informal staff opinion. As
such, they are not binding on the Commission. They do, however,
reflect the staff's current enforcement position.

Sincerely,
‘Thomas B. Kane
Attorney
Division of Credit Practices
Aptil 26, 1996
Burton W. Sandler, Esq.
P.O. Box 2300
Ocean City, Maryland 21842-2300
Dear Ms, Sandler:

‘This will respond to your letter dated November 1, 1995. I apologize
for the delay. You ask whether the staff of this division continues to
hold the position set out in my May 24, 1991 letter to Peter S. Philbin
regarding the Fair Debt Collection Practices Act (FDCPA) and its
application to community association assessments. The answer is that
my letter still reflects this division's position.

790

‘The views expressed herein represent an informal staff opinion. As
such, they are not binding on the Commission. They do, however,
reflect the staff's current enforcement

Mr. David C, Farmer
Synch and Fasmer

Suite 2500 Mauka Tower
Grosvenor Center

137 Bishop Strcet
Honolulu, Hawaii 96813
Dear Mr, Farmer:

‘This is in reply to your rceent lcttca comcerning a siluation where a
Joan, originally made by a mortgage servicing company, is assignedto
another party, but the servicer continues to service the loan on bebalf
of the assignee, You ask whether the servicing company is covered by
the Fair Debt Coltections Practices Act (FDCPA} (copy enclosed)
when the loan goes into default and the company sends a dunning letter
to the borrower.

Section 803(6)(F)(i0) of the FDCPA exempts from the definition of
“debt collector” pezsons attempting to collect debts owed others to the
esteat that the collection activity “". .. (i) concerns a debt which was
originated by such person.” It appears that this is the situation you
describe. If so, the servicing company appears to be exempt from
coverage of the Act.

Thope this is responsive to your inquiry.

Sincerely,
John F, LeFevre
August 30, 1996

‘Mr. John P. Fedele, President

Judgment Collection Services, Inc.

4001 Kennet Pike

Suite 134

Greenville, DE 19807

Dear Mr. Fedele:

‘Thankyou foryour recent letters concerning whether your company
is covered by the Fair Debt Collection Practices Act (FDCPA) (copy
enclosed). You state that your company takes assignments of existing
judgments from judgment creditors (debts in default) and collects
them through the execution process. You ask whether the FOCPA
applies to your activities. [ apologize for the delay in replying.

In my opinion, the answer is yes. Although Ido not know the person
at the Commission with whom you conversed, your company clearly
scems to be one “‘... the principal purpose of which is the collection
of... debts” (Section 803(6)). In addition, since JCS routinely takes
assignment of debts in default for the purpose of collection, we do not
bolicve JCS qualifies as a ‘‘creditor” under the Act. (Section 803(4)).

In this circumstance, JCS would be required to comply with the
notice requirements in the Act, as prescribed by Section 807(11) and
8m.
T hope this responds to your inquiry.

Sincerely,

Jobn F, LeFevre


WaMu is presently litigating foreclosure cases numbering in the thousands in the Cook
County Circuit Court.
“Rollins' underlying holding was that ‘[jjurisdiction is
to be asserted only when it is fair, just, and reasonable
to require a non-resident defendant to defend an
action in Illinois, considering the quality and nature
of the defendant's acts which occur in Illinois or which
affect interests located in Illinois.’ Id. at 398, 565 N.E.2d
at 1316. This statement suggests a broader approach to the
fiduciary shield doctrine than merely asking whether the
defendant exercised discretion or whether he was acting in
an individual or representative capacity. In each case, a
court deciding whether jurisdiction would be appropriate
must examine the equities of the situation in light of all
the circumstances.”

Brujis v. Shaw, (N.D. Ill. 1995). Fiduciary shield doctrine does not apply where
employee has the power to decide what will be done and chose to commit tortious acts
that subjected him to long-arm jurisdiction.

IV. PLAINTIFF’S SUPPLEMENT TO CLAIMS FOR RELOF.

A. FDCPA Counts I and II

While Defendants WaMu insist they are immune to FDCPA violations, its
denials are refuted by the plain language of the Act and supporting Federal Trade
Commission letters (attached hereto as Exhibits “A” and “B”). The Court has often
repeated the general proposition that considerable respect is due "the interpretation given
[a] statute by the officers or agency charged with its administration." Zenith Radio Corp.
y. United States, 437 U.S. 443

1, alls Under ification ‘oll In The t

Home savings of America, WaMu’s predecessor, claims to have allegedly loaned

Plaintiff Catuara money, WaMu has, thus far, refused to substantiate that fact. WaMu


UNITED STATES DISTRICT COURT . L E B
FOR THE NORTHERN DISTRICT OF ILLINOIS — APR 2 2 2999

EASTERN DIVISION
creplCHAet w.p Dospin
U8, DisrAy CT pi
» 4 OW:
CATUARA, ) :
) a
Plaintiff, )
)
v. ) No. 1:03 CV 563
)
) Areal
HEAVNER HANDEGAN et al., )
)
Defendants. )
) DOCKETED
ApR 2 4 2008
NOTICE OF FILING *
To: Jefferey T. Mitchel Patrick Thomas Stanton
KONICEK & DILLION SCHWART, COOPER
21 W. State St. GREENBERG & Krause
Geneva, Illinois 180 N. LaSalle Street #2700
630/262- 9659 Chicago, IL 60601

312/782-8416

PLEASE TAKE NOTICE that on April 22, 2003, Chad F. Catuara’s Motion to
Strike Defandants’ Motions to Dismiss was filed with the Court, a copy hereto attached.

wy By Ln

Chad F. Catuara

R’ TE OF SER’

Thereby certify delivery of a copy of Chad F. Catuara’s Motion to Strike
Defendants Motion to Dismiss to the person(s), as listed above , on the 22” day of April

2003 prepaid first class U.S. mail.
By: ChddlE Bx.

Chad F. Catuara


1047-48 (S.D. Miss. 2000); Dornhecker v. Ameritech Corp., 99 F. Supp.2d 918, 927
(ND. Ill. 2000); Campbell v. Baldwin, 90 F. Supp.2d 754, 756 (E.D. Tex. 2000).

Cc. Plaintiff's RESPA Count XII

Plaintiff Catuara contends Defendants take this issue out of context with selective
review concerning matters presented in Plaintiff's written communications, which speak
for themselves. “RESPA's principle purpose is to protect home buyers from material non-
disclosures in settlement statements and abusive practices in the settlement process.
Cortez v. Keystone Bank, 2000 (E.D.Pa. May 2, 2000). RESPA applies not only to the
actual settlement process, however, but also to the servicing of federally regulated
mortgage loans.” MorEquity, Inc. v Naeem, 118 F. Supp. 2d 885, 901 (N.D. Ill. 200). In
lieu of a review of the actual communications from Naeem to MorEquity Plaintiff
Catuara suggests Defendants statements are broad and over reaching conclusive in nature.
Plaintiff states inquiries relating to bookkeeping entries and call reports directly correlate
to servicing matters. Plaintiff respectfully requests pursuant to 12(e) the Defendants
make more definite statements. A brief would be reasonable.

D. Truth in Lending XIII, as Recoupment/ Counterclaim, Waives

Statute of Limitations

Defendants as expected gathered a wealth of information relating to limitations
cases, I can only surmise Defendants do not care to accept the stark reality that Courts all
across the land hold a different view. Also, the TILA gives a litigant the option of choice
of venue to litigate. The Truth in Lending Act establishes federal jurisdiction for the

plaintiff's cause of action. 15 U.S.C. § 1640(e). Gammons v, Domestic Loans of

Winston-Salem, Inc., 423 F. Supp. 819 (M.D. N.C.1976).


in sections 803(6)(G)(ii)-(iii)of the Act.”?

The exact same situation as the case at bar. An exhaustive review of the case
history quoted by Defendants WaMu reveals a compilation of off point diversionary
material. Vicarious liability will be imposed on an attorney’s client for the attomney’s
FDCPA violations if the attorney and client were both debt collectors. First Interstate
Bank y. Soucie, 924 P.2d 1200 (Colo. Ct. App.1996). WaMu’s liability does not rest
solely on declaration as “debt collector.”

B. FCRACLAIMS IX-XI

As usual, Plaintiff must correct the misdirected presumption of baseless claims.
The credit reporting violations result from the FDCPA action itself at § 1692(e)(8).
Reflecting all Defendants requirements to apprise the credit reporting agencies of the
disputed debt. Plaintiff respectfully apologizes for the oversight of filing the incorrect
section identifiers, however, Plaintiff Catuara will gladly alert the government agencies
to these grave injustices. With this volume of material a harmless error can be expected.

Plaintiff Catuara shall either file a supplement or seek leave to amend the
complaint consolidating these three mistaken counts into one, under 1681s-2(b). The
consumer may bring a cause of action against the furnisher if it does not comply with the
provisions of § 1681s-2(b). “... it is clear that Whitesides herself did notify BOL via
letter on December 19, 1996...” See Whitesides v. Equifax Credit Info. Serv., 125 F.
Supp.2d 807, 812 (W.D. La. 2000); McMillan v. Experian Info. Sery., Inc., 119 F.
Supp.2d 84, 88 (D. Conn. 2000); Olexy v. Interstate Assurance Co., 113 F. Supp.2d 1045,

? Due the age of this Opinion Letter, it is possible that FDCPA updates have slightly changed in
section reference. Currently the section is identified as (F)(ii)-(iii), unless this was originally an

oversight.



1. ng-Arm St:
According to information gathered at WaMu.com, WaMu’s third quarter filing
with the SEC in 2002 states:'
“In October, Washington Mutual announced that Chicago
is the fifth new market for its innovative Occasio financial
stores. The company plans to open up to 70 Occasio financial
centers in the greater Chicago area by the end of 2003.
Washington Mutual is Illinois’ No. 1 home lender and currently
has about 2,000 employees locally, primarily in Home Loans &
Insurance Services loan servicing and support centers. Washington
Mutual also operates more than 20 business offices ~ including
Home Loan Centers and Washington Mutual Finance offices — in
greater Chicago.
In addition, Wamu maintains headquarters operations in Vernon Hills, Illinois.
This information coupled with the fact that WaMu participates in heavily regulated
financial sectors requiring State licensing provides sufficient grounds for the WaMU
Defendant’s expectation of being haled into an Illinois court meeting each and every
requirement within Defendants cited cases.
2. Fiduciary Shield Doctrine
In this instance, again, Plaintiff bases his reliance on settled case history. The
fiduciary shield doctrine is discretionary in nature and should be applied only where
equity demands it. Washburn v. Becker, 186 Ill. App.3d 629, 134 Ill. Dec. 418, 421, 542
N.E.2d 764, 767 (App. Ct.), appeal denied, 127 Ill.2d 643, 136 Il. Dec. 610, 545 N.E.2d
134 (1989). It would be inappropriate to invoke the doctrine to protect these defendants.
Plaintiff Catuara has an alleged forty year mortgage with WaMu which had entailed

regular monthly billing statements followed by return wire payments.

' WaMu.com’s interactive features solicit personal information and accept monthly payments
from Illinois residents. “This is roughly analogous to Goldstar setting up a 24-hour store front in
Illinois...” Amold v. Goldstar (N.D. Hl. Aug. 20, 2002.) (Gotshall, J.)


long and arduous trail could have been easily avoided by providing the minimalist of
discovery in the State Court.

8. Plaintiff incorporates and attaches a memorandum of law in support of this
motion.

WHEREFORE, Plaintiff Chad F. Catuara, request the Court enter an order:

1) Striking Defendants’ Motions to Dismiss in their entirety;

2) Granting the Plaintiff time to supplement his complaint to the findings or
leave to amend as necessary.

3) Instructing Defendants participate in “good faith” discovery.

Respectfully submitted,

By: Chad‘F. Catuara

Chad F. Catuara

14540 Lavergne
Midlothian, Illinois 60445
(708) 597-1873


more of his funds. Incorporating this claim within the due process claims might be more

prudent.

1,

Promis Ne B hid t An

Additional items supporting Plaintiff's stance, which supposedly had no basis in

common sense or law of a Counterclaim character.

G. ICFDPA Count XXII

Again, Defendants deceptive unfair business practices are based on the cause of

action Defendants followed allegedly seeking to procure what’s due them. It’s logical to

maintain an expectation that one with a legitimate debt owing them could prove such

without fabricating documents with false statements. Following this extensive laundry

list of unscrupulous activity possibly would even wipe out an honest debt. That claim is

duplicative of the wording the Attorney General and FTC use drafting their documents.

Plaintiff Catuara shall quote Hastings verbatim.

“(defendants need not be given a “pretrial memorandum containing,
all the evidentiary support for the plaintiff's case," but only “a

brief sketch of how the fraudulent scheme operated, when and

how it occurred, and the participants"). See Vicom, Inc.v. Harbridge
Merchant Servs., Inc., 20 F.3d 771, 777 (7th Cir. 1994).

Moreover, the Complaint does not suggest that there was a special
relationship between the Hastings and the defendants which might
render them liable for failing to disclose material information about

the transaction. Cf. Emery v. American Gen. Fin, Inc., 71 F.3d 1343,
1347-48 (7" Cir. 1995) (indicating that omissions can only be actionable
if the context of the transaction indicates a duty to disclose); Reynolds v.
East Dyer Dev. Co., 882 F.2d 1249, 1252 (7th Cir. 1989) (stating that
"mere failure to disclose, absent something more" is not fraud). Hastings

vy. Fidelity Mortgage Decisions Corp., 984 F. Supp. 600, 615 (N.D.
111.1997).

H. Plaintiff's Tort Claims Count XXEX-XXXI
1-2. Fraud And Defamation

1


Plaintiff will appease the Heavner Defendants here with their suggested
deficiencies.
1. Count I-§ 1692d
Plaintiff contends this is a definite attempt to harass and oppress via exposing his
personal information to open public records anyone off the street can come in and review.
There is no need to include a social security number in the filing other than to keep an
oppressive watch over one’s financial transactions or comings and goings. FDCPA
example section lists are generally non exhaustive, due the vast ways one can be
intimidated. WaMu has an issue with their clients making up a disproportionate number
of victims to identity theft according to the California Department of Motor Vehicles.’
2. Count II- § 1692e(2)(A)

This act is an intentional means to deceive and expedite the foreclosure process.
Disclosure of a false creditor may state a claim for violation of the FDCPA Zanayed v.
Gertler & Gertler, Ltd., 2000 U.S.(N.D. Ill. 2000).

3. Count IV- § 1692(e)

Heayner’s general practice of not following proper procedure under the FDCPA
exposes them to liability. According to the common definition of the word “verification”
the Heavner Defendants have as of yet provided such and have no right to continue these
court room antics. However, because the list is non-exhaustive, a debt collection practice
can be "false, deceptive, or misleading" in violation of § 1692e even if it does not fall
within any of the subsections of § 1692e. Clomon v. Jackson, 988 F.2d 1314, 1318 (2nd
Cir. 1993).

4. Count V- § 1692f

13



mortgage transaction. These violations stand on their own.

3. Defendant’s WaMu (collectively) and Heavner et al. intentionally chose to
carry out these practices and activities in the State of Illinois where each defendant group
conducts its business. All defendants maintain sufficient contacts with the State of
Illinois to be held personally liable for their actions.

4. Count XIII’s Truth in Lending Act violation contains a recoupment feature
(governed by State recoupment counterclaim laws) which waives the 1 year statute of
limitations. Plaintiff Catuara raised TILA disclosure issues in the State proceedings.

5. Plaintiff's claims pertaining to the UCC and Illinois Civil Procedure arose
from the actions and/or non actions of Defendants in and preceding to the State cause.
These counts might need to be restated as counterclaims via a supplemental filing or an
amended complaint, pursuant to rules 15 (a) and 15 (d) of the Federal Rules of Civil
Procedure.

6. Plaintiff has provided sufficient grounds to carry this action past a cursory
dismissal and could likely seek a ruling on the FDCPA counts as a matter of law.

7. Defendants’ stance regarding Plaintiff's theory being fictitious, frivolous,
finding absolutely no basis in law or common sense are in direct contradiction to long
standing written declarations by the Federal Reserve; premises of: common-law, the
UCC, contract law, principals of equity, good faith, disclosure laws, the concept of
valuable consideration etc. This blatant attempt to discredit Plaintiff and his so-called
theory, which is essentially a secondary issue to the numerous violations, is immaterial,

impertinent, scandalous, argumentative, and should be stricken as a matter of law. This


UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION F | L E D

) APR x 2 2003
CATUARA, )
) MICHAEL w. DOBSINS
Plaintiff, ) CLERK, U.S. DISTRICT COURT
)
y } No. 1:03 CV 563
)
HEAVNER HANDEGAN et al., )
) DOCKETED
Defendants, )
) APR 2 4 2003

PLAINTIFF’S MOTION STRIKE DEFENDANTS’
MOTIONS TO DISMISS

Plaintiff, Chad F. Catuara, moves this court to strike Defendants’ motions to
dismiss on grounds of insufficient defense, impertinent and immaterial matters and/or in
the alternative for more definite statements, pursuant to rules12(e) and 12(f) of the
Federal Rules of Civil Procedure.

1. Plaintiff Catuara seeks relief from the State actions through the Federal
Courts under the superior jurisdiction conveyed by the Fair Debt Collection Practices (15
U.S.C. § 1692k(d)), The Truth in Lending (15 U.S. C. 1640(e)), and Fair Credit
Reporting (15 U.S.C. 1681s-2(b)) Acts. Due his desire for judicial economy, Plaintiff
has consolidated his eight FDCPA claims, which in all respects could have been brought
separately, into one action with additional federal claims and supplemental state claims,
under 28 U.S.C. § 1367. The FDCPA counts I-VI being the central focus carrying this
action were initiated by Defendants deceptive and unfair collection tactics.

2. The FDCPA violations are not dependant on the validity of the alleged


§ 1640(e)

“expressly provides that the Act's I-year limitation

on actions for recovery of damages "does not bar . . . assert
[ion of] a violation . . . in an action . . . brought more than
one year from the date of the . . . violation as a matter of
defense by recoupment." This quite different treatment

of recoupment of damages and rescission in the nature of
recoupment must be understood to reflect a deliberate

intent on the part of Congress, see Bates v. United States,
522 U.S. 23, 29-30, and makes perfectly good sense. Since

a statutory rescission right could cloud a bank's title on
foreclosure, Congress may well have chosen to circumscribe
that risk, while permitting recoupment of damages regardless
of the date a collection action may be brought. Pp. 415-419.

They are, of course, correct that as a general matter a
defendant's right to plead “recoupment,” a "defense

arising out of some feature of the transaction upon

which the plaintiff's action is grounded," Rothensies

v. Electric Storage Battery Co., 329 U.S. 296, 299 (1946)
(quoting Bull v. UnitedStates, 295 U.S. 247, 262 (1935)),
survives the expiration of the period provided by a statute
of limitation that would otherwise bar the recoupment claim
as an independent cause of action. So fong as the plaintiff's
action is timely, see ibid., a defendant may raise a claim

in recoupment even if he could no longer bring it indepen-
dently, absent "'the clearest congressional language" to the
contrary. Reiter v. Cooper, 507 U.S. 258, 264 (1993) (quoting
United States v. Western Pacific R. Co., 352 U.S. 59, 71
(1956)). As we have said before, the object of a statute of
limitation in keeping "stale litigation out of the courts," id.,
at 72, would be distorted if the statute were applied to bar
an otherwise legitimate defense to a timely lawsuit, for
limitation statutes "are aimed at lawsuits, not at the
consideration of particular issues in lawsuits," ibid.”

Beach v. Ocwen Fed. Bank, 523 U.S. 410 (1998).

The court looked to the purpose of the Limitations
Act and the purpose of TILA and found that the
one-year limitation in which to bring the Federal right
is not such an integral part of TILA as to outweigh the
combined purposes of that act and section 17 of the
Limitations Act.

In 1980, section 1640 of TILA was amended to cover the



Plaintiff Catuara believes these are pat evasive dismissal tactics intent on
manipulation of civil procedure, again, attempting to discredit the exposure of the
fraudulent concealment rampant throughout this ordeal. It’s not credible for
Defendants’ counsel to honestly believe he can fly in the face of equity and not
experience repercussions.

3. — Tortious Interference XXXI

Plaintiff shall let Defendants own case law support his sufficiently plead tortious
interference claims. Under the system of notice pleading, however, all that was required
to do was provide "a short and plain statement showing that [he] is entitled to relief." The
district court correctly stated the elements of the tort: that Cook had a reasonable
expectation of entering into a valid business relationship, that Winfrey knew of this
expectancy, that she purposefully interfered to prevent the expectancy from being
fulfilled, and that damages to Cook resulted from the interference. Cook responds to this
dismissal by identifying Illinois cases holding that the plaintiff may point to an
identifiable "class" of third parties (Plaintiffs existing or potential creditors) or with
whom he had a business expectancy (and toward whom the defendant directed her
interfering actions), rather than a single third party. See, ¢.g., River Park, Inc. v. City of
Highland Park, 667 N.E.2d 499, 507 (Ill. App. Ct. 1996) (holding that a plaintiff must
“allege either an interference with specific third parties or an identifiable class of third
persons"); Parkway Bank & Trust Co. v. City of Darien, 357 N.E.2d 211, 237-238 (Il.
App. Ct. 1976), HEAVNER FDCPA SPECIFIC PLEADINGS (labeled to correspond)
ARGUMENT

A. Statements of FDCPA Claims

12