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Bywater v. Wells Fargo Bank, N.A.

United States District Court, N.D. Illinois, Eastern Division

March 24, 2014



MATTHEW F. KENNELLY, District Judge.

Tara McGuigan Bywater has sued Wells Fargo Bank, N.A., as well as LPS Field Services, Inc. and A-Son's Construction, Inc., two companies that provide "home preservation" services to mortgage lenders. Plaintiff has brought claims against all of the defendants under the federal Fair Debt Collection Practices Act (FDCPA) and Illinois law, including claims for trespass to real property, trespass to personal property/chattels, conversion, intrusion upon seclusion, and violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA). Plaintiff has also brought a breach of contract claim against Wells Fargo. All three defendants have moved to dismiss at least some of the claims against them.


On March 20, 2009, plaintiff obtained a $168, 144 loan from Franklin American Mortgage Company to purchase a home in Plainfield, Illinois. The loan was secured by a mortgage on the home. At a later date, the mortgage was assigned to Wells Fargo. Wells Fargo has attached to its motion to dismiss documentation indicating that the assignment took place in April 2012. See Wells Fargo Ex. 2 at 1.

Plaintiff alleges that she and her daughters "exclusively resided" in the home from April 2009 to January 2013, Compl. ¶ 13, and that in February 2013, she and her daughters "slowly began moving" to the home of her then-fiance and now-husband (they married in March 2013). Id. ¶¶ 13 & 26. Plaintiff says that she contacted a real estate agent to list the property for sale in February 2013 and that she was "regularly present" at the property in February and March 2013. Id. ¶¶ 27-28.

The complaint does not contain any allegations relating to whether or when plaintiff defaulted on her mortgage loan. Wells Fargo contends that plaintiff defaulted on her loan in December 2012. See Wells Fargo Mem. at 2. Plaintiff appears to agree. She contends, however, that she stopped making payments because when she called Wells Fargo about selling the home, Wells Fargo advised that it could help with a short sale only if she was in default and suggested that she skip two or three payments. See Pl.'s Resp. at 5. (These allegations are not yet in plaintiff's complaint.)

Plaintiff alleges that in February or March 2013, Wells Fargo instructed LPS, which provides "home preservation services" to mortgage lenders, Compl. ¶ 8, to investigate, winterize, change the locks, and perform other tasks on the property. LPS then arranged for a number of subcontractors to bid for the opportunity to perform these tasks. A-Son's, which also provides "home preservation services" to mortgage lenders, won the bid. Id. ¶¶ 10 & 16.

Plaintiff alleges that on March 2, 2013, A-Son's forcibly entered the property, changed the locks, and damaged or stole many of her personal items, including jewelry, electronics, and appliances. Plaintiff maintains that none of the defendants contacted her to determine if she still resided at the property or obtained a court order granting them possession or permission to enter the property. Plaintiff states that on March 3, 2013, she learned from a neighbor that there was an unmarked van in the driveway and a work crew on the property. That same day, plaintiff's husband visited the property and reported that the locks had been changed and that there were signs on the premises to contact LPS in case of an emergency.

Plaintiff alleges that she called the LPS number listed on the signs and left a message, which she says was never returned. Plaintiff also reports calling Wells Fargo, which informed her that it would send someone out to the property to investigate and reach out to plaintiff about the locks being changed. Plaintiff claims that she never heard back from Wells Fargo, but she says she later received a call from LPS, which informed her that it would discuss the situation with Wells Fargo. Plaintiff alleges that she made clear to LPS that the property was not in foreclosure and that she was unable to access her belongings within the home. Plaintiff contends that LPS told her to contact Wells Fargo for more information.

Sometime later, plaintiff received new keys to the property in the mail. On March 23, 2013, plaintiff visited the property to meet with her real estate agent. Plaintiff alleges that she found the home ransacked and personal property destroyed.

Plaintiff alleges that she called LPS to report the incident and that LPS denied any wrongdoing, stating it had been "directed to do everything by Wells Fargo." Pl.'s Compl. ¶ 39. On March 26, 2013, plaintiff reported the incident to the Will County Sheriff's Department. The next day, Wells Fargo filed a foreclosure lawsuit against plaintiff. See Wells Fargo Bank, N.A. v. McGuigan, No. 13 CH 01261 (Cir. Ct. of Will Cty.). Plaintiff alleges that defendants have refused to pay her the reasonable value of the damaged property or to return, replace, or reimburse her for her stolen personal items.


All of the defendants have moved to dismiss at least some of the claims against them. In considering the motions, the Court accepts all well-pleaded allegations in plaintiff's complaint as true and views those allegations in the light most favorable to plaintiff. See, e.g., Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1027 (7th Cir. 2013). "When ruling on a motion to dismiss, the court must review the complaint to determine whether it contains enough facts to raise a reasonable expectation that discovery will reveal evidence' to support liability for the wrongdoing alleged." Adams v. City of Indianapolis, 742 F.3d 720, 729 (7th Cir. 2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). In other words, a plaintiff "must plead some facts that suggest a right to relief that is beyond the speculative level.... This means that the complaint must contain allegations plausibly suggesting (not merely consistent with) an entitlement to relief." Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 632-33 (7th Cir. 2013) (internal quotations omitted).

A. ICFA claim (Count 5)

The ICFA "is a regulatory and remedial statute intended to protect consumers, borrowers, and business persons against fraud, unfair methods of competition, and other unfair and deceptive business practices." Robinson v. Toyota Motor Credit Corp., 201 Ill.2d 403, 416-17, 775 N.E.2d 951, 960 (2002). It provides that

[u]nfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact..., in the conduct of any trade or ...

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