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Gregory Jackson v. the Bank of New York

June 28, 2012

GREGORY JACKSON, PLAINTIFF,
v.
THE BANK OF NEW YORK, ET AL.,
DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

In this diversity action, Plaintiff Gregory Jackson filed an amended complaint against The Bank of New York ("BONY"), Litton Loan Servicing, LP ("Litton"),*fn1 and Safeguard Properties Inc. ("Safeguard"), as well as unknown foreclosure-related businesses and individuals.*fn2 Before the Court are Safeguard's motion [24] and BONY and Litton's motion [28] to dismiss for failure to state a claim. For the reasons stated below, the motions [24, 28] are granted in part and denied in part.

I. Background*fn3

Plaintiff resided at 22980 Kristine Lane in Richton Park, Illinois, with his wife, Karen. The property was held in Karen's name; she had a mortgage with BONY. When the couple divorced, Plaintiff was awarded the residence and attempted to modify the mortgage with Litton. In December 2008, BONY obtained a foreclosure judgment against Karen but did not act on it. Thereafter, Plaintiff began traveling between Illinois and Arizona but kept most of his personal possessions in Illinois. In August 2009, the property was sold out of foreclosure, with a confirmation hearing scheduled for late October. Although Plaintiff was never told about the sale, at some point, Litton informed him that he had until December 1, 2009, to vacate the premises.

On September 18, 2009, Safeguard, acting on behalf of Litton as servicing agent for BONY and unknown businesses and/or individuals, changed the locks, winterized the house, and removed Plaintiff's personal property, all without prior notice or judicial authorization. Plaintiff discovered what Defendants had done when he returned from Arizona in late September. Plaintiff demanded return of his personal property to no avail. On November 6, 2009, BONY finally requested and received a judicial sale deed.

On September 14, 2011, Plaintiff filed an initial complaint, which he has since amended. The amended complaint alleges seven counts: Count I (trespass against all Defendants), Count II (conversion against all Defendants), Count III (negligence against BONY, Litton, Safeguard, and the unknown businesses and individuals), Count IV (intentional infliction of emotional distress against all Defendants), Count V (invasion of privacy against all Defendants), Count VI (willful and wanton conduct against all Defendants), and Count VII (violation of the Illinois foreclosure statute, 735 ILCS 5/15, against BONY and Litton). In the introduction section of the amended complaint, Plaintiff also alleged that he was bringing claims for: 1) negligent infliction of emotional distress, 2) breach of contract, and 3) violation of the Illinois Consumer Fraud and Deceptive Business Practice Act.

BONY and Litton filed a motion to dismiss all counts for failure to state a claim. Safeguard filed a motion to dismiss Counts IV and V for failure to state a claim.

II. Legal Standard

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint, not the merits of the case. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss, the complaint 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," such that the defendant is given "'fair notice of what the * * * claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the "'speculative level.'" E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 127 S. Ct. at 1965, 1973 n.14). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, 127 S. Ct. at 1969. The Court accepts as true all well-pleaded facts alleged by the plaintiff and all reasonable inferences that can be drawn from them. See Barnes v. Briley, 420 F.3d 673, 677 (7th Cir. 2005).

III. Analysis

A. Plaintiff's Claims for Negligent Infliction of Emotional Distress, Breach of Contract, and Violation of the Illinois Consumer Fraud and Deceptive Business Practice Act As an initial matter, the Court notes that while the body of the amended complaint is separated into seven, separately labeled counts, in the introduction, Plaintiff briefly states that he is bringing claims for nine counts, including: 1) negligent infliction of emotional distress, 2) breach of contract, and 3) violation of the Illinois Consumer Fraud and Deceptive Business Practice Act.*fn4 BONY and Litton argue that Plaintiff has failed to state a claim for these actions. The Court agrees. The structure of Plaintiff's amended complaint intentionally obscures these three claims, such that Defendants are not provided with fair notice of what the claims are or against whom they are asserted. Accordingly, these claims are dismissed sua sponte as to all Defendants.

B. Plaintiff's Agency Claims Against BONY and Litton

BONY and Litton argue that Counts I through VII should be dismissed because Plaintiff has failed to plead the existence of an agency relationship between BONY, Litton, and Safeguard. Under Illinois law, an agency relationship exists when "the alleged principal has the right to control the manner and method in which work is carried out by the alleged agent and [when] the alleged agent can affect the legal relationships of the principal." Chemtool, Inc. v. Lubrication Techs., Inc., 148 F.3d 742, 745 (7th Cir. 1998) (internal quotation omitted). "To plead the existence of an agency relationship, the plaintiff must allege some factual predicate (even though generalized rather than evidentiary in nature) to create the inference of agency." Azimi v. Ford Motor Co., 977 F. Supp. 847, 851 (N.D. Ill. 1996) (internal quotation omitted).

Here, Plaintiff alleges that BONY held the mortgage and sold the home out of foreclosure. He also alleges that he tried to modify the mortgage with Litton, a mortgage servicer, and that Litton supplied him with a date to vacate the premises. Finally, Plaintiff alleges that Safeguard, an asset management company, winterized the property. Plaintiff argues that these facts, when viewed in the light most favorable to him, supply a factual predicate ...


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