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Gregory v. TCF Bank

December 10, 2009


The opinion of the court was delivered by: Judge James B. Zagel



In August 2008, Defendant TCF Bank ("TCF"), through its attorney Defendant David Cohen and Associates ("DCA"), filed in the Circuit Court of Cook County a Complaint to Foreclose Mortgage against Plaintiffs Richard and Nydia Gregory (the "Gregorys"). On December 10, 2008, after two previous attempts, service of process on the Gregorys was effectuated by Leonard Lappe ("Lappe"), a private process server,*fn1 appointed by Judge Clifford Meacham of the Circuit Court of Cook County. Under Illinois law, in counties with a population of more than 1,000,000, process is typically served by the sheriff. 735 ILL. COMP. STAT. 5/2-202(a). However, "[t]he court may, in its discretion upon motion, order service to be made by a private person over 18 years of age and to a party to the action." On June 22, 2007, Presiding Judge Dorothy Kinnard implemented General Administrative Order No. 2007-03 ("GAO 2007-03"), a standing order for the appointment of special process servers in mortgage foreclosure cases. According to Defendants, this general order alleviates the need for separate motions for the appointment of a special process server in each mortgage foreclosure case and results in greater efficiency and a preservation of resources. Judge Meacham's appointment of the private process server was made pursuant to GAO 2007-03.

Plaintiffs have not answered the foreclosure complaint, but instead filed several motions attacking service. On May 7, 2009, after an evidentiary hearing, Defendant Judge Thomas Mulroy of the Circuit Court of Cook County denied the motion to quash, and found that the process server was properly appointed and that the Gregorys were properly served.

On August 26, 2009, the Gregorys, acting pro se, filed a complaint in federal court against TCF, DCA,Lappe, Louis Botoske,*fn2 the Court of Cook County,*fn3 Clerk of the Circuit Court of Cook County Dorothy Brown,*fn4 Judge Mulroy, and Judges Lisa Curcio and John Griffin.*fn5

Plaintiffs challenge the Circuit Court of Cook County's subject matter and personal jurisdiction in the mortgage foreclosure case. Specifically, Plaintiffs dispute the validity of GAO 2007-03, claiming that it "fails to meet rule 83(a) of the Federal Rules of Procedure [sic]," that it is inconsistent with 735 Ill. Comp. Stat. 5/2-202(a), and that it is unconstitutional. Plaintiffs further contend that Defendants are involved in a conspiracy in violation of 42 U.S.C. § 1985, that the Defendant Judges are "legislating from the bench, and blatantly disregarding the law. As a result of GAO 2007-03, Plaintiffs appear to be alleging due process and equal protection violations brought pursuant to 42 U.S.C. § 1983. Plaintiffs are seeking a declaration that GAO 2007-03 is unconstitutional, statutory damages in the amount of $400,000 from each Defendant, sanctions against the Defendant Judges and Clerk of Court, $100,000,000 in damages, and the trebling of those damages. Dorothy Brown, TCF, DCA, and Judges Mulroy, Curcio, and Griffin (collectively "Defendants") now move to dismiss the complaint against them.


A Motion to Dismiss under Rule 12(b)(6) requires that I analyze the legal sufficiency of the complaint, and not the factual merits of the case. Autry v. Northwest Premium Servs., Inc., 144 F.3d 1037, 1039 (7th Cir.1998). I must take all facts alleged in Plaintiffs' complaint as true and draw all reasonable inferences from those facts in favor of Plaintiffs. Caldwell v. City of Elwood, 959 F.2d 670, 671 (7th Cir.1992). Plaintiffs, for their part, must do more than solely recite the elements for a violation; they must plead with sufficient particularity so that their right to relief is more than a mere conjecture. Bell Atl., Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiffs must plead their facts so that, when accepted as true, they show the plausibility of their claim for relief. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Plaintiffs must do more than plead facts that are "consistent with Defendants' liability" because that only shows the possibility, not the plausibility, of their entitlement to relief. Id. (internal quotations omitted).


Defendants raise several grounds in support of their Motions to Dismiss. Defendants Dorothy Brown, TCF, and DCA, argue that Plaintiffs' complaint fails to meet Federal Rule of Civil Procedure 8(a)(2), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief." "The purpose behind Rule 8 is to ensure that both the defendant and the court have fair notice of the claims alleged." Easley v. Verizon Wireless,03 C 2969, 2004 WL 2005819, at * 2 (N.D. Ill. Aug. 25, 2004). Defendants acknowledge that pro se complaints must be liberally construed and held to a less stringent standard than a complaint prepared by counsel. Gutierrez v. Peters, 111 F.3d 1364, 1369 (7th Cir. 1997). However, even when viewed leniently, Defendants argue, Plaintiffs' complaint fails to satisfy Rule 8. According to these defendants, Plaintiffs' allegations "are bare factual and legal conclusions directed at all 'Defendants,'" and fail to give proper notice of what actions each of the Defendants is alleged to have committed against Plaintiffs. As to Dorothy Brown, the complaint alleges that the Clerk's website does not contain GAO 2007-03, and that the order cannot be obtained from the Clerk's office without hostility. It is difficult to see how or where TCF and its counsel DCA fit into Plaintiffs' allegations of constitutional violations, and Plaintiffs make no specific allegations against Judges Curcio and Griffin. Construing the complaint in Plaintiffs' favor, it appears that aside from the few specific allegations made against the individual Defendants, Plaintiffs are alleging a conspiracy between several or all Defendants. Plaintiffs themselves are often inconsistent in their allegations, alleging for instance that "the courts and attorneys" are engaged in a conspiracy, and later that "[a]ll parties involved in effectuating and enforcing" GAO 2007-03 are conspiring together. Notwithstanding that the complaint can also be read as alleging all of the counts against all Defendants, throughout the complaint, Defendants are "lumped" together, and it is difficult to ascertain which actions Plaintiffs are ascribing to each of the defendants. Even assuming that Plaintiffs' complaint has satisfied the purpose of Rule 8, it should be dismissed pursuant to Rule 12(b)(6) for failure to state a claim upon which relief may be granted. To begin, Plaintiffs fail to provide facts to support their allegations of civil conspiracy under 42 U.S.C. 1985(3). "To establish a claim for civil conspiracy under § 1985(3), a plaintiff must demonstrate (1) the existence of a conspiracy, (2) a purpose of depriving a person or class of persons of equal protection of the laws, (3) an act in furtherance of a conspiracy, and (4) an injury to person or property or a deprivation of a right or privilege granted to U.S. citizens." Green v. Benden, 281 F.3d 661, 665 (7th Cir. 2002). "The function of § 1985(3) is to permit recovery from a private actor who has conspired with state actors." Fairley v. Andrews, 578 F.3d 518, 526 (7th Cir. 2009). Presumably, the Gregorys are alleging a conspiracy between one or more of the Defendant Judges and/or Dorothy Brown, and one or more of the private actor defendants. One portion of the complaint alleges a "de facto" conspiracy between "the courts and the attorneys for the purpose of depriving the citizens of this county a fair chance at proper service by the sheriff first then by process server under court supervision to prevent questionable service as dictated by law." Another claims that

[a]ll parties involved in effectuating and enforcing the special standing order 2007-03 are involved in a civil conspiracy and are de facto representatives of a scheme and artifice to defraud as the benefits in the long run are monetary and deprive citizens inclusive of the Gregory's [sic] of their equity and property for the enrichment of all those who conspire behind closed doors to connive and scheme through special court orders.

But the allegations provide little factual enhancement to render the allegations plausible. See Iqbal, 129 S.Ct. at 1949.*fn6

Furthermore, Plaintiffs have not alleged the deprivation of a property interest. The foreclosure case against the Gregorys is still pending and they have not been deprived of any property. In their response, the Gregorys maintain that TCF's unsuccessful attempt to seek a default judgment in the foreclosure proceeding reveals its intent to deprive the Gregorys of their property rights, notwithstanding the alleged lack of jurisdiction. But claims of procedural due process require the deprivation of a property interest, not the attempt to deprive. Therefore, Plaintiffs' § 1985(3) conspiracy claims must be dismissed.

Plaintiffs' allegations of a due process violation also fall short. "To demonstrate a procedural due process violation, the plaintiffs must establish that there is (1) a cognizable property interest; (2) a deprivation of that property interest; and (3) a denial of due process." Hudson v. City of Chicago, 374 F.3d 554, 559 (7th Cir. 2004) (quotations and citation omitted). First, as discussed supra, Plaintiffs have failed to allege a deprivation of a property interest. Second, Plaintiffs have not alleged a denial of due process, as a violation of state law or procedure is not a violation of due process where Plaintiffs had notice and an opportunity to be heard. Hickey v O'Bannon, 287 F.3d 656, 658 (7th Cir. 2002); see Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) ("the ...

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