IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
September 2, 2011
LILIAN ALLEN PLAINTIFF,
CHASE HOME FINANCE LLC, JPMC SPECIALTY MORTGAGE LLC,
JP MORGAN CHASE BANK, N.A. AND SAFEGUARD PROPERTIES, LLC DEFENDANTS.
The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Plaintiff Lilian Allen brought claims for violations of the Fair Debt Collection Practices Act (FDCPA), the federal civil rights laws, as well as various state law claims, against defendants Chase Home Finance LLC, JPMC Specialty Mortgage LLC, JP Morgan Chase Bank, N.A. (collectively, "the Chase Defendants"), Safeguard Properties, LLC and its employee Robert Klein (together, "Safeguard"), and P&B All-Star Construction Inc. ("P&B") (collectively, "the defendants"). Her claims stem from an incident in February 2010 when agents of the defendants allegedly entered a residence owned by Allen, changed the locks, and destroyed her tenant's property. For the reasons set out below, the Court dismisses Allen's complaint with prejudice because Allen has not stated a federal cause of action and there is no other basis for federal subject matter jurisdiction to hear her state claims.
Allen, a black woman, has a mortgage on a property located at 1407 East 71st Street, Unit 2 in Chicago ("the property"). (Am. Compl. ¶¶ 3, 6).*fn1 Though Allen does not specifically plead that the Chase Defendants were the servicers of her mortgage, she alleges that at least one of the Chase Defendants is a loan servicer. ( Id. ¶¶ 4-5.) One of the Chase Defendants hired Safeguard (who in turn hired P&B) to evict Allen from her residence and to prepare the property for foreclosure. ( Id.¶¶ 5, 18-19.)
Specifically, Allen alleges that she had not violated the terms of
her mortgage and the property was not in foreclosure when, on February
22, 2010, Safeguard and P&B broke into the property at the behest of
the Chase Defendants. ( Id. ¶¶ 8-9, 12-17.)
According to Allen, that day four men, together with a man dressed
like a sheriff, went to the property and forced open the door. (
Id. ¶ 17.) They changed the locks, damaged various
appliances, the floor and the property's electrical system, and
removed Allen's tenant's personal property. *fn2
( Id. ¶ 18.) That property
included two unpublished books worth $300,000. ( Id.
¶ 43.) P&B left a note indicating it had been in the unit. (
Id. ¶ 23.) Allen was never served with any court order
indicating the property was in
foreclosure. ( Id. ¶ 25.) After the February
22, 2010 incident, Allen and her tenant called the defendants numerous
times to receive compensation for the break-in and for return of the
tenant's personal property, but those attempts were unsuccessful.
( Id. ¶ 43, 47, 51-54.) Allen also alleges that the
defendants took advantage of her because she is a "poor black
immigrant woman from Africa." ( Id. ¶ 30.) Allen
brings two types of federal claims against all the defendants, one for
violations of the FDCPA, and the other for violations of her civil
rights under 42 U.S.C. §§ 1983, 1985 and 18 U.S.C. § 241. (
Id . ¶¶ 127-133; 143-153.) She also brings state law
claims for fraud, trespass, trespass to chattels, conversion,
intentional infliction of emotional distress, punitive damages, civil
conspiracy, unfair and deceptive business practices, and negligence.
When considering a Rule 12(b)(6) motion, the Court accepts as true
all facts alleged in the complaint and construes all reasonable
inferences in favor of the plaintiff. Murphy v. Walker, 51
F.3d 714, 717 (7th Cir. 1995). To state a claim upon which relief
can be granted, a complaint must contain a "short and plain statement
of the claim showing that the pleader is entitled to relief."
R. Civ. P. 8(a)(2). "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 , 129 S. Ct. 1937, 1949 (2009)
(quoting Bell Atlantic Corp. v. Twombly , 550 U.S.
544, 555 (2007)). In analyzing whether a complaint has met this
standard, the "reviewing court [must] draw on its judicial experience
and common sense." Iqbal , 129 S. Ct. at 1950. When
there are well-pleaded factual allegations, the Court assumes their
veracity and then determines if they plausibly give rise to an
entitlement to relief. Id. A claim has facial
plausibility when its factual content allows the Court to draw a
reasonable inference that the defendant is liable for the
misconduct alleged. See id. at 1949.
A. Allen Has Not Stated a Claim under the FDCPA
The defendants move to dismiss Allen's FDCPA claim on two grounds:
(1) they are not "debt collectors" as defined by the FDCPA; and (2)
Allen does not allege that they attempted to collect a debt from her.
The FDCPA prohibits the use of harassing, oppressive, or abusive
measures to collect a debt and bans the use of false, deceptive,
misleading, unfair, or unconscionable means of collecting a debt.
See 15 U.S.C. § 1692. The FDCPA distinguishes
between creditors, who are not subject to liability under the act, and
debtors, who are subject to liability. Schlosser v.
Fairbanks Capital Corp ., 323 F.3d 534, 536 (7th Cir. 2003).
A creditor "offers or extends credit creating a debt or to whom a debt
is owed," whereas "a debt collector is one who attempts to collect
debts 'owed or due or asserted to be owed or due another.'"
Id. (citing 15 U.S.C. § 1692a(4) and (6)). "Because
creditors are generally presumed to restrain their abusive collection
practices out of a desire to protect their corporate goodwill,"
creditors who attempt to collect debts "in their own name and whose
principal business is not debt collection . . . are not subject to the
[FDCPA]." Aubert v. Am. Gen. Fin. Inc ., 137 F.3d
976, 978 (7th Cir. 1998). The definition of "debt collector" also
excludes anyone who attempts to collect "a debt which was not in
default at the time it was obtained by such person." 15 U.S.C. §
1692a(6); see also Bailey v. Security Nat'l Servicing
Corp ., 154 F.3d 384, 386-87 (7th Cir. 1998) ("the plain
language of [the FDCPA] tells us that an individual is not a 'debt
collector' subject to the Act if the debt he seeks to collect was not
in default at the time he purchased (or otherwise obtained) it.")
(citing § 1692a(6).)
The Chase Defendants are not "debt collectors" under the FDCPA because Allen does not allege that the debt was in default when the Chase Defendants began attempting to collect the debt via the break-in. See 15 U.S.C. § 1692a(6). Rather, the entire basis for her suit is she was not in default when the incident occurred, and that the Chase Defendants had no right to come into her property. *fn3 Taking Allen's allegations as true, the Chase Defendants' actions are not violations of the FDCPA. See Bailey , 154 F.3d at 386-87; Conner v. Aurora Loan Servs. , LLC, No. 09 C 5900, 2010 WL 2635229, at *2 (N.D. Ill. Jun. 28, 2010) (dismissing a FDCPA claim because the plaintiff "merely assert[ed] that [the defendant] was trying to collect a debt that Plaintiff did not owe to it, which is not a violation of the FDCPA."). For these same reasons, Allen cannot state a claim under the FDCPA against Safeguard and P&B as well. Further, it is clear from Allen's allegations and the documents attached to her complaint that Safeguard and P&B were not attempting to collect a debt from Allen, but merely following work orders from a Chase Defendant to secure the property and prevent damage to it. Though Allen typically lumps Safeguard and P&B in with the Chase Defendants in her complaint, at best, Allen suggests that Safeguard was the company hired to evict her, and P&B was Safeguard's subcontractor. Allen does not allege that Safeguard or P&B ever asked her for money or to repay any debt, and those defendants are not liable under the FDCPA for this reason as well.
B. Allen Has Not Stated a Claim Under the Civil Rights Statues
Allen alleges violations under 42 U.S.C. §§ 1983 and 1985, as well as 18 U.S.C. § 241, for violations of her civil rights. Specifically, Allen asserts that the defendants illegally evicted her with state help, namely the assistance of the Cook County Sheriff. To assert a claim under § 1983 there must be "state action." See Wade v. Byles , 83 F.3d 902, 904 (7th Cir. 1996); see also London v. RBS Citizens, N.A. , 600 F.3d 742, 746 (7th Cir. 2010) ("private persons . . . may not be sued for merely private conduct [under the civil rights statutes], no matter how discriminatory or wrongful."). "Misuse of a state law by a private party . . . does not satisfy [the state action] requirement." Id. ; see also Crawford v. Countrywide Home Loans, Inc ., No. 09 C 247, 2010 WL 327315, at *6 (N.D. Ind. Aug. 16, 2010) (finding a mortgage company was not a "state actor" under the civil rights statutes because it used the state legal process to foreclose on the plaintiff's house and evict him). Here, the only part of the complaint that implicates any state action whatsoever is Allen's allegation that the defendants used the Cook County Sheriff to effectuate the illegal eviction of her tenant. That is not state action under § 1983. *fn4 See London , 600 F.3d at 742.
Allen also suggests that the defendants violated § 1985 by
discriminating against her because she is "poor and an African
immigrant." (Am. Compl. ¶ 157.) A private citizen may be liable
§ 1985(3) if he conspires with another "for the purpose of
depriving . . . any person or class of persons of the equal protection
of the laws, or of equal privileges and immunities under the laws."
Id. Purely private conspiracies are within the
scope of the statute. See Griffin v. Breckenridge ,
403 U.S. 88, 96 (1971). Allen's allegations of racial discrimination,
however, are entirely conclusory, do not sketch out any conspiracy and
do not come close to passing muster under Rule 8. See
Iqbal , 129 S.Ct. at 1949; Wilson v. Price
, 624 F.3d 389, 395 (7th Cir. 2010) (finding that bare conclusions
of racial discrimination were insufficient to state a claim for a §
1985(3) violation under Iqbal ). *fn5
Allen's only non-boilerplate allegation is that the Chase Home Finance LLC and Safeguard have been sued in four cases, presumably in the Circuit Court of Cook County, and those four cases "demonstrate the [sic] defendants pattern of discriminatory actions against African American, [sic] poor individuals in predominately African American [c]ommunities." (Am. Compl. ¶ 159.) That is not sufficient to plead a conspiracy on the part of the defendants to deprive African Americans of their civil rights. See Obi v. Chase Home Fin ., No 10 C 3154, LLC, 2010 WL 4810609, at * 6 (N.D. Ill. Nov. 19, 2010) (dismissing an § 1985 claim by Allen's tenant based on nearly identical allegations because "it is unreasonable to infer from these allegations that defendants had a racial animus. [Allen's tenant] must allege more than the fact that defendants have evicted people who were African American.")
D. Dismissal With Prejudice
This is now Allen's fourth complaint. It is clear that Allen cannot allege a federal claim against the defendants, and to permit further amendments would be futile. See Nieto v. Perdue Farms, Inc. , No. 08 C 7399, 2010 WL 1031691, at *5 (N.D. Ill. Mar. 17, 2010) (Kendall, J.) (denying further amended complaints where they would be futile). Indeed, rather than responding to P&B's motion to dismiss (and presumably to moot the other motions to dismiss) Allen sought leave to file a second amended complaint on August 29, 2011 ( see Doc. 124). The proposed complaint, however, cures none of the deficiencies outlined above and also does not state a federal claim.
Because Allen's federal claims are dismissed with prejudice, the Court's only basis to hear the remaining state claims for is diversity. *fn6 Allen pleads that she is a citizen of Illinois and the Court takes judicial notice from P&B's filings with the Illinois Secretary of State that it is an Illinois corporation. See Arrington v. Brown & Williams Tobacco Corp. , No. 96 C 5715, 1996 WL 535139 at *1 (N.D. Ill. Sep. 17, 1996) (taking judicial notice of a secretary of state filing to establish the citizenship of a corporation). Consequently, Allen's remaining claims are dismissed with prejudice for lack of subject matter jurisdiction. See 28 U.S.C. § 1332; Fed. R. Civ. Proc. 12(b)(1); 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action."). All remaining motions, including Allen's tenant's motion to intervene, are denied as moot.
For the foregoing reason, the defendants' motions to dismiss are granted and Allen's claims are dismissed in their entirety with prejudice.
Virginia M. Kendall United States District Court Judge Northern District of Illinois