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McCREADY v. JACOBSEN

September 22, 2005.

KENNETH A. McCREADY, Plaintiff,
v.
KAREN JACOBSEN, et al. Defendants.



The opinion of the court was delivered by: JOHN NORDBERG, Senior District Judge

MEMORANDUM OPINION AND ORDER

In 1999, plaintiff Kenneth A. McCready rented an apartment in Chicago from defendant Karen Jacobsen. He alleges that numerous and serious problems arose with his apartment — broken windows, holes in his floors, lack of heat, hot water, etc. — and that Jacobsen was not willing to fix those problems. As a result, plaintiff began withholding rent. In March 2002, Jacobsen responded by filing an eviction proceedings in Illinois State court. On April 9, 2002, the State court ordered that plaintiff be evicted and that he pay $4,000 in back rent. A week later, plaintiff filed a voluntary Chapter 7 petition in the Bankruptcy Court for the Northern District of Illinois.

In 2003, after the conclusion of the bankruptcy proceeding, plaintiff filed this action. His allegations focus mostly on the protracted and apparently bitter landlord-tenant dispute with Jacobsen that led to his eviction. But he also complains about a few post-eviction matters. His complaint, however, is not as straightforward. It is 43 single-spaced pages with 353-numbered paragraphs and contains 14 counts based mostly on state law. Before the Court are two motions to dismiss the complaint in its entirety. The gist of these motions is that all these claims already have been, or could have been, litigated in either the state court eviction proceedings or the subsequent bankruptcy proceedings and therefore may not be re-litigated here.

  PROCEDURAL BACKGROUND

  Plaintiff originally filed this case in the Central District of Illinois. Three of the named defendants — Barry Morgen, Sheldon Perl, and Jay Andrew (the "lawyer defendants") — filed a motion to dismiss or in the alternative to transfer this lawsuit to this district. They asserted that the lawsuit properly belonged in this District because the dispute arose out of a rental of an apartment in Chicago. Plaintiff filed a response brief in which he argued that the case should remain in the Central District because he lived there and it would be inconvenient for him to travel to Chicago and because, based on his experience in filing lawsuits in the Central District, that district was better suited to handle this case. The Magistrate Judge issued a Report and Recommendation, recommending that the motion to transfer be granted without ruling on the motion to dismiss. This report was adopted by the District Court, and the case was transferred here.

  In this Court, plaintiff moved for an default order against defendant Karen Jacobsen because she had not yet appeared. After several status hearings, Jacobsen eventually appeared through counsel and filed a motion to quash service of summons, stating in her affidavit that she never received proper service at her residence as plaintiff had claimed. Jacobsen also moved, as part of this same motion, to dismiss the complaint on largely the same grounds asserted by the lawyer defendants. As for the issue of service, we find that Jacobsen's affidavit is credible and that she was not properly served. An order of default is therefore unwarranted, and plaintiff's motion for default is denied. However, by appearing and filing her motion to dismiss, Jacobsen now consents to jurisdiction, and we can address these two motions to dismiss.

  THE COMPLAINT

  Although plaintiff's complaint is lengthy with numerous details, many of which are repetitive and disorganized, it is clear enough that we can discern the general nature of this dispute. It is, as we have already summarized, essentially a landlord-tenant dispute.

  A large portion of the complaint consists of a detailed descriptions of all the various problems with plaintiff's apartment and also with the common areas in the building. These problems included the following: his ceiling tile was falling down for years; his windows were broken; large holes were in his floors; snow was not shoveled around the building; the heat was cranked in the early evening and then dropped into the mid-50's during the night; the building had Code violations; he was overcharged for electricity; the laundry room in the basement was not secure enough and was not cleaned properly; rats and mice infested his apartment; he had no screens; the hot water in his apartment was lukewarm; and his stove didn't work for two months. There were other problems, but this description suffices to convey the gist of the dispute.*fn1 As a result of Jacobsen's alleged failure to fix these problems, plaintiff began withholding rent. (¶ 73.) It is unclear exactly when he began to withhold rent, but he did so for a significant period of time. After Jacobsen filed the eviction proceedings in March 2002, plaintiff filed a motion to quash service of summons, which he noticed up for April 9th. On that date, however, plaintiff failed to show up. Without plaintiff present, Judge Turkington issued an ex parte Order of Possession awarding Jacobsen possession of the apartment and $4,000 in back rent. (Ex. B.)*fn2

  Thereafter, plaintiff made two attempts before Judge Turkington to get this order vacated. On April 11th, he filed his first motion to vacate, in which he explained that he had missed the hearing because there was a bomb scare and a suicide on the CTA. On April 30, 2002, he filed a second motion to vacate, arguing this time that the eviction order was void ab initio because Jacobsen was engaged in the unauthorized practice of law because she was really representing the owner of the building and because she was not a lawyer.

  Judge Turkington eventually denied both motions to vacate. On May 8, 2002, plaintiff filed a notice of appeal with the Illinois Appellate Court, appealing the possession order and the denial of the two motions to vacate. (Ex. C.) On August 15, 2002, the Illinois Appellate Court granted Jacobsen's motion to dismiss the appeal of Judge Turkington's orders. (Ex. D.) On April 17, 2002, a week after the eviction order was entered, plaintiff filed a bankruptcy petition. He did so in an attempt to avoid being evicted and also because he wanted to make sure that Jacobsen would "get nothing." (Ex. H at 4; Ex. F.)

  By May 4, 2004, plaintiff had moved out of the apartment. (Ex. H at 9.) In his complaint, plaintiff alleges that the move from the eviction caused the following financial, physical, and emotional injuries: (i) he "incurred thousands of dollars in moving and storage expenses" (¶ 150); (ii) his move was "disorganized and hasty" (¶ 151); (iii) he suffered severe emotional distress because "for nearly a month after [entry of the eviction order], he had no idea if the next knock on his door would not be the sheriff, there to throw him out on the street (¶¶ 152, 182); he spent "countless hours" of his own time in moving out of the premises (¶ 179); he got "stuck doing the move all by himself," and "[h]is hands were, due to the volume of material that had to be moved in such short time, caused to become claw-like and remained so for several weeks, causing him extreme pain and discomfort" (¶ 180); during the move, he "broke the quick under each of his fingernails, which didn't heal for several weeks, causing him excruciating pain" (¶ 181); and he has had "to incur thousands of dollars (as much as $50,000) in substitute housing expense" (¶ 155).

  On June 2, 2002, after he moved out of the apartment and was living in downstate Illinois, plaintiff wrote a letter to Jacobsen and asked about his security deposit and some personal items (a pair of skis and an cooler). (Ex. F.) In this June 2nd letter, he told Jacobsen that he was going to file a lawsuit against both her and her attorneys and suggested that she should therefore try to settle matters by paying him "a decent dollar amount." (Id.) Jacobsen apparently passed the letter along to her attorney, defendant Andrew, who wrote a letter to plaintiff on June 6th. (Ex. E.)*fn3 This single letter is the centerpiece of plaintiff's FDCPA claim and is really the only basis for this case being in federal court. The top of the letter contained an all-caps, bold-faced disclaimer, stating that it was being sent for the limited purpose of complying with the Chicago Municipal Ordinance and should not be construed as an attempt to collect a debt. The letter then stated that plaintiff's $1,800 security deposit would not be returned because of unpaid rent and because of $1,279 in repairs and cleaning to the apartment. Plaintiff alleges that these charges were false and that any damage with the apartment was normal wear and tear or was due to problems that Jacobsen should have fixed. (¶ 57.)

  On September 30, 2002, plaintiff filed a contempt petition in the bankruptcy court against Jacobsen and the other defendants in this case, asking why they should not be held in contempt or assessed sanctions for violations of the automatic stay. (Ex. H.) Specifically, plaintiff alleged that the June 6th letter was an attempt to collect a debt in violation of the automatic stay; that Jacobsen and her boyfriend had made harassing phone calls to him and his elderly parents; that Jacobsen ...


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