Summary
dismissing separate foreclosure action for property already alleged to be subject to forfeiture "[b]ased on the plain language of Section 853(k)"
Summary of this case from JP Morgan Chase Bank v. KhalilOpinion
No. 02 C 4641
September 12, 2002
MEMORANDUM OPINION AND ORDER
Plaintiff, Bank One, filed a Second Amended Conmplaint To Foreclose Mortgage ("Complaint") in the Circuit Court of Cook County against multiple defendants, including the United States of America ("United States"). The United States removed the Second Amended Complaint to this Court and filed the presently pending motion t,) dismiss. Bank One did not file a response to the motion to dismiss.
In reviewing a motion to dismiss, the court reviews all fact; alleged in the complaint and any reasonable inferences drawn therefrom in the light most favorable to the plaintiff. See Marshall Mosby v. Corporate Receivabtes, Inc., 205 F.3d 323, 326 (7th Cir. 2000). Dismissal is only warranted if the plaintiff can prove no set of facts in support of its claims that would entitle it to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Bank One filed a complaint to foreclose its mortgage against the real property commonly known as 6806 South Constance Avenue (the "Constance Property"). In May 2002, Bank One filed a Second Amended Complaint. Maurice F. Cody ("Cody") was made a party to terminate his unspecified interest in the Constance Property. Bank One joined the United States to terminate its interest, which the complaint describes as "United States of America, by virtue of a Lis Pendens recorded 4/18/01 as Document No. 0010316853, U.S. against Maurice Cody, Case 01 CR 261."
As to the criminal case referred to in the Complaint, on March 20, 2001, the United States filed its indictment against Cody. Pursuant to 18 U.S.C. § 982 and as a result of violations of 18 U.S.C. § 1956 and 1957, the indictment sought forfeiture of the Constance Property.
On a motion to dismiss, the court may take judicial notice of court documents which are a matter of public record. Doherty v. City of Chicago, 75 F.3d 318, 324 n. 4 (7th Cir. 1996).
The United States moves to dismiss the Complaint, arguing that this Court lacks subject matter jurisdiction pursuant to 21 U.S.C. § 853(k)(2).
Section 853(k)(2) provides:
Except as provided in subsection (n), no party chiming an interest in property subject to forfeiture under this section may —
Subsection (n) allows a third party to challenge a final order of forfeiture entered under Section 853. See 21 U.S.C. § 853(n).
(1)***
(2) commence an action at law or equity against the United States concerning the validity of his alleged interest: in the property subsequent to the filing of an indictment or information alleging that the property is subject to forfeiture under this section.21 U.S.C. § 853(k)(2).
In the instant case, Bank One commenced its foreclosure action against the United States subsequent to the United States' filing the indictment that alleged the Constance Property was subject to forfeiture. Based on the plain language of Section 853(k)(2), Bank One cannot bring its civil action against the United States. See Roberts v. United States, 141 F.3d 1468, 1470 (11th Cir. 1998) (dismissing civil action pursuant to 21 U.S.C. § 853(k)(2) because alleged property was subject to criminal forfeiture).
Based on the above, the United States' motion to dismiss is granted. The Second Amended Complaint to Foreclose Mortgage is dismissed with