Opinion
No. 01 C 7910
July 2, 2002
MEMORANDUM OPINION AND ORDER
In his complaint, plaintiff Jeffrey Lang alleges that he entered into a variable rate residential mortgage loan with defendant Advanta Mortgage Corporation ("Advanta Mortgage") at an interest rate above 8% per annum and containing a prepayment penalty provision. This contract, plaintiff alleges, violates the Illinois Interest Act 815 ILCS 205/4(2)(a), which prohibits prepayment penalties in residential loans that are payable with an interest rate above 8%. Defendant has moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).
For purposes of a motion to dismiss, the court accepts the factual allegations of the complaint as true and draws all reasonable inferences in favor of plaintiff. See Travel All Over the World Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423 (7th Cir. 1996). When ruling on a motion to dismiss for failure to state a claim, the court considers, "whether relief is possible under any set of facts that could be established consistent with the allegations." Bartholet v. Reishauer A.G., 953 F.2d 1073, 1078 (7th Cir. 1992). A claim may be dismissed only if it is beyond doubt that under no set of facts would plaintiff's allegations entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The purpose of a motion to dismiss is to test the sufficiency on these issues under Fed.R.Civ.P. 56(f), thus converting the instant Rule 12(b)(6) motion to a summary judgment motion. The complaint, however, alleges only a loan contract entered into with Advanta Mortgage, and the evidence provided by both parties establishes that the contract was actually between plaintiff and Advanta National Bank. Because plaintiff's argument that defendant Advanta Mortgage is liable as a servicer is not alleged in the complaint, the court grants defendant's motion to dismiss without prejudice, and grants plaintiff leave to file an amended complaint on or before July 18, 2002. This matter is set for a report on status July 24, 2002 at 9:00 a.m.