Stephen Tillery of St. Louis beat a deadline to file in Madison County a class action that a new law would have steered to federal court, but the suit winds up in federal court after all.
CitiMortgage removed it to U.S. district court in East St. Louis May 28, arguing that a new class certification motion from Tillery identifies a class far bigger than the class in his complaint.
"Plaintiffs commenced a new action on April 24, 2008 when they filed their motion, which asserted entirely new claims for relief against parties that were not previously named as defendants," Robert Bassett of Belleville wrote for CitiMortgage.
He quoted a federal court ruling that "a novel claim tacked on to an existing case commences a new litigation for purposes of the Class Action Fairness Act."
Tillery filed the suit in 2005, against American Equity Mortgage and ABN AMRO Mortgage Group, just before the effective date of the national class action law.
Plaintiff Cassandra Williams claimed that in originating and servicing loans, American Equity Mortgage and ABN AMRO Mortgage Group suspended payments that it should have applied to principal, interest, escrow or late charges.
Tillery sued on behalf of Williams and all others similarly situated, but he did not define a class or move to certify one.
Later that year he amended the complaint to add plaintiffs Charles and Judy Kinworthy, but he asserted the same claims against the same lenders.
Last year, ABN AMRO Mortgage Group merged into CitiMortgage.
Tillery associate Christine Moody moved in April to certify two classes of borrowers whose payments the lenders suspended, back to 1995.
One class would include those who named the lenders as beneficiaries and the other would include those who didn't.
Both classes would include borrowers not only of American Equity Mortgage and ABN AMRO Mortgage Group but also of their parents, subsidiaries and affiliates.
Moody's motion completely changed the complaint, Bassett argued in removing it.
"The complaint did not in any way identify the persons encompassed by the purported class and certainly did not suggest that Williams intended to seek certification of two separate and additional classes of borrowers," he wrote.
Nor did it assert claims against parents, subsidiaries and affiliates, he wrote.
He attached charts showing that at the end of its last full year, ABN AMRO Mortgage Group serviced about 1.6 million mortgages and held about 29,000 in suspense.
Those figures don't take into account loans of American Equity Mortgage or parents, subsidiaries and affiliates, he wrote.