Minute Ordex Form (0697) (/
AG . United States District Court, Northern District of Illinois C )

Name of Assigned Judge James B. Moran Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 01 C 5508 DATE 10/9/2001
CASE Gale Drake vs. Fieldstone Mortgage Co. et al.
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented]

MOTION:
Memorandum Opinion and Order
DOCKET ENTRY:
qd) oO Filed motion of [ use listing in “Motion” box above.}
(2) ia Brief in support of motion due.
(3) gq Answer brief to motion due_____. Reply to answer briefdue___.
(4) a Ruling/Hearingon set for_ at
(5) o Status hearing[held/continued to] [set for/re-set for] on setfor at
(6) Oo Pretrial conference[held/continued to] [set for/re-set for]on__—_—setfor___——s at.
(7) Qo Trial[set for/re-set for]on___at
(8) Oo [Bench/Jury trial] [Hearing] held/continuedto__at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
QFRCP4(m) General Rule21 OO FRCP41(a)(1) [ FRCP41(a)(2).
do ff {Other docket entry} | Enter Memorandum Opinion and Order. Plaintiff moves to remand. That

motion is granted.

(1) ff [For further detail see order attached to the original minute order.]

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
GALE DRAKE, )
Plaintiff, }
vs. } No. 01C 5508
FIELDSTONE MORTGAGE COMPANY ‘
and GENESIS MORTGAGE CORPORATION, DOCKETED
Defendants, ) OCT 1 6 2001

MEMORANDUM OPINION AND ORDER

Plaintiff moves to remand. That motion is granted.

The complaint in state court alleged three state claims, violation of the Minois
Consumer Fraud Act (CFA), breach of fiduciary duty and inducing breach of fiduciary duty.
Plaintiff claims that he was badly used in connection with a mortgage loan he obtained.
Fieldstone Mortgage Company (Fieldstone), with the consent of Genesis Mortgage
Corporation, removed the case here, contending that plaintiff’s CFA claim is governed by
federal statutes that dictate disclosure requirements. Not so, responds plaintiff. He
represents that the property was purchased for investment purposes and not for personal use
as a residence, and the federal statutes therefore do not apply. Fieldstone apparently
concedes that those statutes do not apply to investment property mortgages, but it insists that
it was entitled to rely upon the complaint as filed (which it was), and the complaint, by
referring to plaintiff as a “lay borrower” who could not fully understand the transaction
without more adequate disclosure, inferred that the property was being purchased for
residential use, and the reliance upon CFA indicates he was buying the property for his own
use,

Fieldstone’s contention has all the hallmarks of a federal defense, which does not


No. 01 C 5508 Page 2

provide a basis for removal. But even if we assumed that the interpretation of the federal
statutes would have provided a basis, the removal would still be improper. Plaintiff did not
allege he was purchasing the property for residential use. Indeed, a rider which we are led
to believe was one of the exhibits attached to the complaint specifically deletes any
requirements of occupancy, requires the borrower to maintain insurance against rent loss,
and assigns all rents to the lender. Further, purchase for investment does not foreclose
reliance upon CFA. Purchase for investment is a use by plaintiff, it is not for resale. There
just was not a sufficient basis for removal.

We note, as well, that this case would have ended up in state court in any event. At
most, it would have remained there only briefly, until the purported federal claims were
dismissed. The case would then, beyond dispute, be solely state claims, which would be

remanded or dismissed without prejudice to their being pursued in state court.

Apne B

\A JAMES B. MORAN
ior Judge, U. S. District Court

OB. 9 2001.