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Sabeel C. El-Bey v. Housing & Urban Development

April 20, 2012

SABEEL C. EL-BEY, PLAINTIFF,
v.
HOUSING & URBAN DEVELOPMENT, WELLS FARGO BANK, JUDICIAL SALES CORPORATION, MERS, UNKNOWN OWNERS, AND NON-RECORD CLAIMANTS, DEFENDANTS.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:

MEMORANDUM OPINION AND ORDER

Plaintiff Sabeel C. El-Bey seeks quiet title to real estate located at 309 New Salem, Park Forest, Cook County, Illinois ("the property"). His amended complaint asserts three claims: to quiet title (Count 1); for violation of the Fair Debt Collection Act (Count 2); and for violation of the Illinois Consumer Fraud and Deceptive Business Practice Act (Count 3). Defendants Wells Fargo Bank and Mortgage Electronic Registration Systems, Inc. (MERS) have moved to dismiss all three claims for failure to state a claim. For the reasons stated below, the Court grants the motion.

Background

The Court takes the following facts from El-Bey's complaint and the exhibits attached to the defendants' motion. When reviewing a Rule 12(b)(6) motion to dismiss, the court may take judicial notice of matters within the public record without converting the motion to a motion for summary judgment. Palay v. United States, 349 F.3d 418, 425 n. 5 (7th Cir. 2003). Accordingly, the Court will consider documentation from the foreclosure action that the defendants attach to their motion to dismiss.

Patrice Muhammad, who is not a party to this case, granted MERS a mortgage in March 2003 to secure a loan. The mortgage was subsequently assigned to Wells Fargo. In October 2006, Wells Fargo entered into a loan modification agreement with Muhammad, which El-Bey attaches to complaint.

In June 2008, Wells Fargo sued in state court to foreclose on the property. The court entered a judgment of foreclosure and sale on September 24, 2008. In September 2010, Judicial Sales Corporation (JSC) transferred title to the property to the Department of Housing & Urban Development (HUD).

El-Bey alleges that he obtained an interest in the Property via an "Affidavit of Transfer of Interest from Patrice Muhammad dated September 09-2009." Am. Compl.

6. El-Bey alleges that Wells Fargo did not have an interest sufficient to permit it to foreclose on the property. He argues that Wells Fargo's loan modification agreement with Muhammad was invalid because she did not date her signature and the notary who acknowledged the signature of Wells Fargo's representative was not commissioned as a notary as of the day she acknowledged the signature. El-Bey contends that Wells Fargo thus never acquired a valid interest in the property and thus could not properly transfer title to any of the other defendants via, or following, the foreclosure proceeding.

As indicated earlier, in his amended complaint, El-Bey seeks to quiet title against Wells Fargo and MERS (Count 1) and also alleges violations of the Fair Debt Collection Practices Act (FDCPA) by Wells Fargo (Count 2) and the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA) by all defendants (Count 3).

Wells Fargo and MERS move to dismiss all of El-Bey's claims against them pursuant to Rule 12(b)(6).

Discussion

On a motion to dismiss, the Court accepts the facts stated in the complaint as true and draws reasonable inferences in favor of the plaintiff. Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). A complaint must describe the plaintiff's claims and grounds for the complaint in "sufficient detail to give the defendant fair notice" of the claims, which requires more than simply "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 777 (7th Cir. 2007). A plaintiff has "stated a claim only if [he] has alleged enough facts to render the claim facially plausible, not just conceivable." Fednav Int'l Ltd. v. Cont'l Ins. Co., 624 F.3d 834, 837 (7th Cir. 2010).

The pleading requirements are more stringent when a plaintiff alleges fraud.

Rule 9(b) requires that "[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." Fed. R. Civ. P. 9(b). This requirement applies to fraud-based claims under ICFA. See Cisewski v. Denny's Corp., No. 08 C 5355, 2010 WL 2220584, at *1-2 (N.D. Ill. June 2, 2010). "Although states of mind may be pleaded generally," to satisfy Rule 9(b), "the circumstances [of the fraud] must be pleaded in detail. This means the who, what, ...


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