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Lilian Allen v. Chase Home Finance LLC

September 2, 2011

LILIAN ALLEN PLAINTIFF,
v.
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.

I. FACTS

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 That property included two unpublished books worth $300,000.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.

II. STANDARD

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." Fed. 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.

III. DISCUSSION

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 ...


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