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Murray v. JPMorgan Chase NA

August 18, 2010


The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge


This matter comes before the Court on Defendants JPMorgan Chase, N.A. Chase Auto Finance (JPMorgan), Maria Nisbett, Agnes Morzowski, Rosetta Last Name Unknown (LNU), and Leota Musto's Motion to Dismiss (d/e 17). Pro se Plaintiffs Sharon Murray and Anthony Murray (collectively the Murrays) bring federal and state claims against the Defendants arising from the alleged wrongful repossession and sale of the Plaintiffs' 2004 Pontiac Grand Prix GT automobile (Car). FRCP Rule 7(a)(1) Complaint and Pleadings (d/e 1) (Complaint). For the reasons stated below, the Motion is allowed.

For purposes of this Motion, the Court must accept as true all well- pleaded factual allegations contained in the Complaint and draw all inferences in the light most favorable to the Murrays. Hager v. City of West Peoria, 84 F.3d 865, 868-69 (7th Cir. 1996); Covington Court, Ltd. v. Village of Oak Brook, 77 F.3d 177, 178 (7th Cir. 1996). When read in that light, the Complaint must set forth a short and plain statement of the claims showing that the Murrays are entitled to relief. Fed. R. Civ. P. 8(a); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 559-63 (2007); Airborne Beepers & Video, Inc. v. AT & T Mobility LLC, 499 F.3d 663 (7th Cir. 2007). In doing so, the allegations must plausibly suggest that the Murrays are entitled to relief. Twombly, 550 U.S. at 569 n.14. Allegations of bare legal conclusions or labels alone are not sufficient. Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949 (2009). In addition, allegations of fraud and mistake must be pleaded with particularity. Fed. R. Civ. P. 9(b).


The Murrays allege that on February 28, 2005, they executed a Retail Installment Contract with Defendant JPMorgan's predecessor, Bank One, to purchase the Car. Complaint Exhibits (d/e 2), Exhibit 1, Retail Installment Contract (Contract). The Contract listed the purchase price at $24,966.34. The Contract called for 60 monthly payments of $357.40. Id.

The Murrays made the monthly payments on time or early. The Murrays often made payments of more that the $357.40 listed in the Contract. The Murrays made a payment of $367.40 in June 2007. Defendant JPMorgan received and posted the payment on June 13, 2007. Soon thereafter, Defendant Rosetta from JPMorgan's repossession department, called both the Murrays at work on their cell phones to demand the June 2007 payment. The Murrays went to the local branch of JPMorgan. Branch manager Agnes Morzowski confirmed that the payment had been received and was posted to the account. Morzowski made several telephone calls, opened a case, and told the Murrays that they were not in danger of repossession. Complaint, at 4-5.

Rosetta, however, kept making harassing telephone calls. The Murrays tried to resolve the confusion, but were unsuccessful. On August 2, 2007, representatives of JPMorgan repossessed the Car. The Murrays were wrongfully forced to pay $1,482.20 to Rosetta at JPMorgan, and a $180.00 storage fee to the towing company, to secure the release of the Car. The $1,482.20 included a $390.00 repossession fee. Morzowski later admitted the error. Defendant Maria Nisbett, a JPMorgan supervisor, contacted the Murrays and apologized for the inconvenience. In a series of communications, JPMorgan representatives offered to credit some of the fees to the account. In March 2008, Plaintiff Anthony Murray ultimately accepted JPMorgan's offer to resolve the matter. Anthony Murray was told that, with the credits for reimbursement of fees and expenses, the Murrays' next regular monthly payment would be due May 14, 2008. Id., at 6-7.

In April 2008, Defendant Rosetta charged the Murrays with a $390.00 miscellaneous fee. The Murrays contacted JPMorgan regarding this. Rosetta informed them that she charged the fee because the Murrays never paid the original $390 repossession fee. Plaintiff Sharon Murray discussed this matter with Rosetta, but Rosetta only became abusive and hung up on Sharon Murray. Id., at 7-8.

On July 7, 2008, JPMorgan wrongfully reversed all of the Murrays' payments since 2005 and reapplied them as if the payments had been made on July 7, 2008. As a result, JPMorgan wrongfully charged huge amounts of late fees, penalties, and interest to the Murrays' account. Thereafter, JPMorgan wrongfully deemed the account in default, and Rosetta issued a second repossession order. Sharon Murray started receiving text messages in the middle of the night asking her to come to her back door. She did so one night and found a repossession agent at her back door. She showed him proof of payment and he left. Id., at 8-10.

On December 16, 2008, a repossession team banged on the Murrays' back door at 3:00 a.m. demanding the Car. The repossession team refused to leave. The police were called. The police refused to stop the repossession team from taking the Car over the Murrays' objections. The repossession team took the Car, including the Murray's personal property in the Car. Id., at 10.

The Murrays again contacted JPMorgan representatives including Morzowski and Nisbett, but ended up having to speak to Rosetta again. Rosetta told the Murrays that she would personally see to it that the Murrays would never be in possession of the Car again. Rosetta stated that she was tired of dealing with the Murrays and did not care if they paid the loan in full; she would not allow them to have the Car, and she no longer wished to do business with them. JPMorgan then wrongfully sold the Car without notice to the Murrays on April 15, 2009. Id., at 11-12.

Based on these allegations, the Murrays assert claims under the Fair Debt Collections Practices Act (FDCPA), the Racketeer Influenced and Corrupt Organizations Act (RICO), the Fair Credit Reporting Act (FCRA), and state-law claims. RICO, 18 U.S.C. § 1962 et seq.; FDCPA, 15 U.S.C. § 1692 et seq.; FCRA, 15 U.S.C. §§ 1681 et seq. The Defendants move to dismiss.



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