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Omar Aguilera v. Freedman

June 8, 2011

OMAR AGUILERA, PLAINTIFF,
v.
FREEDMAN, ANSELMO, LINDBERG & RAPPE, LLC, AND CAPITAL ONE BANK, USA, DEFENDANTS.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Defendants Freedman, Anselmo, Lindberg & Rappe, LLC ("Freedman") and Capital One Bank (USA), N.A. ("Capital One") have moved to dismiss [18] Plaintiff Omar Aguilera's complaint pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 12(c). For the reasons stated below, Defendants' motion to dismiss [18] is granted.

I. Background*fn1

At some point prior to October 7, 2009, Plaintiff Omar Aguilera incurred more than $2,500.00 in charges and fees on his Capital One credit card and failed to pay. Capital One retained Freedman, a Chicago-based law firm, to pursue collection. On October 26, 2009, Capital One filed suit against Aguilera in the Circuit Court of Cook County, Capital One Bank (USA), N.A., Successor in Interest to Capital One Bank v. Omar Aguilera, Case No. 09-M1-190505, seeking $2,561.37 plus interest and costs. On February 10, 2010, the parties appeared for trial but instead reached a settlement. That agreement was memorialized in the following agreed order submitted to and entered by the court the same day: "Case dismissed with Leave to Reinstate pursuant to the following agreement: Defendant to pay $1300 in 1 installment(s) of $1300 due 2/28/10."*fn2

On February 26, 2010, two days before the settlement payment was due, Aguilera's counsel (the same counsel who represents him in this case), faxed a two-page, 10-paragraph proposed "Settlement Agreement and Release" to "Stephanie." A handwritten note directed the facsimile to the attention of Barbara Nilsen, the Freedman attorney handling the case. The facsimile also included a photocopy of a check for $1,300.00 and a cover sheet indicating that Aguilera's counsel "will personally deliver [the check] on Monday, March 1, 2010." Aguilera's proposed "settlement agreement" included an obligation on Capital One's part to request that the credit reporting bureaus delete any negative record of the account (e.g., the "tradeline") from Aguilera's credit file. Aguilera contends that Capital One orally agreed to remove any negative information that was being reported to the credit reporting agencies prior to the settlement in state court; however, that term is not set forth in the agreed order that was issued by the circuit court on February 10, 2010. The proposed "settlement agreement" also failed to reflect the February 28 deadline for payment, which was set forth in the agreed order.

On March 10, 2010, Nilsen returned the proposed "settlement agreement" to Aguilera's counsel with several proposed revisions, including striking the provision about the credit reporting bureaus in its entirety. On March 19, 2010, Aguilera's counsel sent back another copy of his original proposal along with a check in the amount of $1300.00. The enclosed check contained a putative restrictive endorsement: "settlement pursuant to attached settlement agreement dated 2/25/10." Freedman cashed the settlement check and applied it toward Aguilera's account. Then by letter dated March 26, 2010, Nilsen rejected Aguilera's proposed "Settlement Agreement and Release" for a second time.

On August 30, 2010, Aguilera filed the instant case alleging breach of contract, conspiracy to defraud, and violations of the Fair Debt Collection Practices Act ("FDCPA"), claiming that defendants breached the "settlement agreement" by failing to have the negative account information removed from his credit file. In response, on November 16, 2010, Capital One filed a motion before the state court to enforce the agreed order and noticed it for November 29, 2010. Aguilera failed to appear.*fn3 On December 1, 2010, the state court judge entered an order affirming the February 10 agreed order, finding as follows:the terms of the settlement between the parties were those that were tendered to the court in the order of February 10, 2010 dismissing the suit; that these were the only terms of settlement agreed to by the parties; and that any subsequent attempt by [Aguilera] to impose additional terms of settlement that were not consistent with the terms of the court order dated February 10, 2010, including the terms in the release submitted by [Aguilera] to counsel for plaintiff, have noeffect.

On February 22, 2011, Aguilera filed a motion to vacate the December 1 order. The circuit court granted the motion to vacate the December 1 order due to the absence of Plaintiff's counsel at the hearing; however, in the same order, the court stated as follows:

The order entered by this court on February 10, 2010 stands in its entirety. The order indicates that Plaintiff's Counsel and Defendant's Counsel were present.

The Order states that the Case is Dismissed with Leave to Reinstate pursuant to the following agreement: Defendant is to pay $1300.00 in one installment of $1300 due 2/28/10. If defendant defaults on agreement, plaintiff may reinstate and obtain judgment for amount prayed in complaint plus statutory interest plus costs, less credits if any. There are no other terms in the trial call order of February 10, 2010. Counsel for defendant [Aguilera] has never sought to vacate or modify the order of dismissal entered on February 10, 2010. Accordingly that order stands as entered.

Aguilera then filed a motion to vacate the February 10, 2010 order, which the circuit court summarily denied on March 21, 2011. Aguilera did not appeal the state court case.

II. Legal Standard

The purpose of a Rule 12(b) motion to dismiss is not to decide the merits of the case. A Rule 12(b)(6) motion tests the sufficiency of the complaint, Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990), while a Rule 12(b)(1) motion tests whether the Court has subject matter jurisdiction. Long v. Shorebank Development Corp., 182 F.3d 548, 554 (7th Cir. 1999). In reviewing a motion to dismiss under either rule, the Court takes as true all factual allegations in Plaintiff's complaint and draws all reasonable inferences in his favor. Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618 (7th Cir. 2007); Long, 182 F.3d at 554.

To survive a Rule 12(b)(6) motion to dismiss, the claim first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief" (Fed. R. Civ. P. 8(a)(2)), such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations Case: 1:10-cv-05488 Document #: 37 Filed: 06/08/11 Page 5 of 14 PageID in the claim must be sufficient to raise the possibility of relief above the "speculative level," assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). "Detailed factual allegations" are not required, but the plaintiff must allege facts that, when "accepted as true, * * * 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, --- U.S. ----, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 555). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "[O]nce a claim has been stated adequately, it may be supported by showing any set ...


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