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BRADLEY v. FAIRBANKS CAPITAL CORPORATION

May 1, 2003

MARK A. BRADLEY AND JULIE E. BRADLEY, PLAINTIFFS,
v.
FAIRBANKS CAPITAL CORPORATION, RONALD O. ROESER AND PETER VUCHA, INDIVIDUALLY AND DOING BUSINESS AS ROESER & VUCHA, A PARTNERSHIP, DEFENDANTS.



The opinion of the court was delivered by: Robert W. Gettleman, United States District Judge.

MEMORANDUM OPINION AND ORDER

Plaintiffs Mark Bradley and Jill Bradley filed an amended eleven-count putative class action complaint against defendants NationsCredit Financial Services Corporation ("NationsCredit"), Fairbanks Capital Corporation ("Fairbanks"), Ronald Roeser and Peter Vucha (individually as well as doing business as Roeser & Vucha) to recover damages for alleged violations of the Truth in Lending Act, 15 U.S.C. § 1601, the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"), and various state laws, including the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/2 ("Illinois Consumer Fraud Act"). Defendant Fairbanks moved to dismiss Counts III, IV, V, VI, VII, and IX of the amended complaint pursuant to Fed.R.Civ.P. 12(b)(6). In their response to that motion, plaintiffs voluntarily dismissed Counts I and II with prejudice and Counts IV, V, VI, and VII without prejudice, leaving only Counts III and IX at issue in the instant motion to dismiss. For the reasons stated herein, the court grants Fairbanks' motion to dismiss Count III and denies its motion to dismiss Count IX.

FACTS

NationsCredit, doing business as NationsCredit Home Equity Services Corporation and EquiCredit, is engaged in the business of originating and servicing "subprime" mortgages. Defendant Fairbanks is also engaged in the business of servicing subprime loans, and specializes in acquiring "non-performing" loans. Defendants Roeser and Vucha are attorneys doing business as Roeser & Vucha, who regularly collect and attempt to collect consumer debts, including residential mortgages, through litigation and correspondence.

Plaintiffs obtained two loans from NationsCredit, designated as nos. 7002496953 (the "'953 loan") and 0001122035 (the "'035 loan"), which are secured by plaintiffs' home. Plaintiffs allege that the '953 loan is an adjustable rate mortgage for which Fairbanks acquired servicing in December 2001.

According to the complaint and exhibits attached thereto, in 2000, defendant Roeser & Vucha filed a mortgage foreclosure against plaintiffs ("case No. 00 CH 279") in the Circuit Court of DuPage County, Illinois, relating to the '953 loan. That suit was voluntarily dismissed on October 4, 2000, after plaintiffs and NationsCredit reached a settlement. Plaintiffs subsequently filed suit against NationsCredit ("case No. 00 CH 1291") alleging that NationsCredit was failing to comply with the settlement agreement in case No. 00 CH 279. Case No. 00 CH 1291 was also resolved by a settlement agreement. Among other things, the settlement agreement in case No. 00 CH 1291 brought plaintiffs' mortgage loan current through December 2000.

On April 25, 2002, Roeser & Vucha filed another mortgage foreclosure action against plaintiffs on behalf of "NationsCredit Home Equity Services Corp." in the Circuit Court of DuPage County ("case No. 2002 CH 716") based on the '953 loan. Plaintiffs allege that Roeser & Vucha were actually directed to file the foreclosure action by Fairbanks, which was the then-servicing agent for the '953 loan. Roeser & Vucha purported to execute the verification of the complaint in case No. 2002 CH 716 as follows:

Under penalties as provided pursuant to Section 1-109 of the Code of Civil Procedure the undersigned certifies that the statements set forth herein are true and correct based upon information supplied by Plaintiff.
Notwithstanding the terms of the settlement agreement in case No. 00 CH 1291, the complaint alleged that the date of default was June 1, 2000. Moreover, the complaint alleged a single per diem interest amount accruing from June 1, 2000, even though there had been three rate adjustments in the interim. Plaintiffs allege that "Roeser & Vucha had no information that supported the filing of the [2002] complaint and had no basis for alleging the default claimed or that Fairbanks had complied with the note and mortgage, as is required in any action seeking to enforce a contract."

According to plaintiffs, case No. 2002 CH 716 was dismissed on August 9, 2002, "because Roeser & Vucha could not obtain any information showing a default to respond to discovery requests [sic] and the Bradleys had moved to dismiss the action for discovery violations." On September 19, 2002, defendant Fairbanks sent a letter to plaintiffs implying that plaintiffs owed "outstanding legal fees" for the 2002 foreclosure action.*fn1 According to plaintiffs' complaint, "It is Fairbanks' practice to add legal fees and foreclosure expenses to borrowers' accounts, without judicial award or approval, often under circumstances when it knows or expects that it could not obtain judicial award or approval." Plaintiffs further allege that Fairbanks regularly furnishes false information to borrowers and courts and arbitrarily refuses to accept payments in an effort to obtain borrowers' properties.

Count III of plaintiffs' complaint characterizes the verification of a complaint by counsel as a violation of the FDCPA and thus seeks statutory as well as actual damages arising from Roeser & Vucha's verification of the complaint in case no. 2002 CH 716.*fn2 Count IX alleges that defendants engaged in "unfair deceptive acts and practices, in violation of [the Illinois Consumer Fraud Act,] 815 ILCS 505/2," including the mailing of demand letters and filing of complaints seeking improper amounts. With this background in mind, the court turns to the standards governing the instant motion.

DISCUSSION

The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to rule on its merits. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). When considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the court accepts the allegations of the complaint as true and views the facts in the light most favorable to the plaintiff Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1428 (7th Cir. 1996).

With respect to Count III, plaintiffs cite to Young v. Meyer & Njus, 96 C 4809, 1997 WL 452685 (N.D.Ill. Aug. 6, 1997), decided by another court in this district, for the proposition that "it is a violation of the FDCPA for an attorney to verify a complaint." The court does not believe that Young sweeps so broadly, however. In Young, the plaintiff contended that an attorney's verification of a complaint based upon a review of a computer print-out constituted a false or misleading misrepresentation in violation of 15 U.S.C. § 1692e, as well as an unfair or unconscionable means of collecting a debt in violation of 15 U.S.C. § 1692f, because the attorney lacked personal knowledge about the amount of the debt in dispute. The district court agreed, concluding that "the print-out would not be sufficient to prove the debt at trial. Accordingly, it cannot provide the basis for an attorney's verification of the facts based on personal knowledge." Id. at 1.

In contrast to the situation in Young, the attorney verification executed by defendants Roeser & Vucha did not purport to be based on personal knowledge, but rather stated that "the undersigned certifies that the statements set forth herein are true and correct based upon information supplied by Plaintiff" (emphasis added). As noted by defendant, the Illinois Code of Civil Procedure allows verification of matters stated "upon information and belief" See Cohen v. Smith, 269 Ill. App.3d 1087, 1097 (5th Dist. 1995) ("Section 2-605 of the Illinois Civil Practice Law provides that even verified ...


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