United States District Court, N.D. Illinois
MEMORANDUM OPINION AND ORDER
Johnson Coleman Judge.
Grace Akinlemibola (“Ms. Akinlemibola” or
“plaintiff”), pro se, filed a
seven-count First Amended Complaint against her student loan
servicer, defendant Pennsylvania Higher Education Assistance
d/b/a American Education Services (“PHEA” or
“defendant”). PHEA moves to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim . On August 2, 2016, this Court
heard brief oral arguments on the motion to dismiss and
allowed Ms. Akinlemibola to present her motion for summary
judgment [17, 19]. For the reasons stated below, this Court
grants defendant’s motion to dismiss.
following facts from the First Amended Complaint are taken as
true for the purpose of ruling on the motion before the
Court. (See Dkt. 6). Ms. Akinlemibola has two
private student loans serviced by defendant PHEA, one
disbursed on May 16, 2006, and the other disbursed on January
2, 2007. Ms. Akinlemibola had different co-signers for each
first requested and received a deferment of payments on the
loans in 2012. In October 2015, she again submitted a request
for deferment, seeking to suspend payments on the January 2,
2007, loan. In December 2015, she resubmitted a deferment
application because PHEA never applied a deferment to her
account. In January 2016, Ms. Akinlemibola telephoned PHEA to
inquire about her deferment request since she had received
neither an approval nor a rejection of deferment from PHEA.
(Dkt. 6 at ¶ 16). Plaintiff alleges that PHEA informed
her during this conversation that the deferment would be
applied to her account in two or three days.
early May 2016, Ms. Akinlemibola discovered that all three
credit reporting agencies contained negative reports
regarding the loans. On May 10, 2016, Ms. Akinlemibola paid
the entire past due balance of the loans because PHEA had not
deferred the loans. On May 13, 2016, Ms. Akinlemibola
telephoned PHEA and was informed that the wrong form may be
listed on the website and that submission instructions were
incorrect. PHEA then provided a different fax number for Ms.
Akinlemibola to submit her deferment application.
following day on May 14, 2016, PHEA sent Ms. Akinlemibola an
example of the deferment form through PHEA’s online
“paperless inbox” system. The new form altered the
third information bullet to remove the clause, stating:
“Any forbearance retroactively applied will not result
in the retraction of any negative reports on your credit
file.” (Dkt. 6, Ex. C). The new form added a fourth
bullet, stating: “If you use a deferment or
forbearance, your eligibility may be delayed for, or you may
be disqualified for any incentive programs that your lenders
may offer, such as cosigner release, interest rate reductions
and rebates. If you have any questions regarding your
eligibility and how this may impact your account, please
contact us…”. (Dkt. 6, Ex. D). The forms are
otherwise the same in the information that applicants are
asked to provide. The fax number on the new form is the same
as the fax number where plaintiff sent her application. The
deferment application available on the PHEA website is the
same as the one that plaintiff submitted. As of May 19, 2016,
PHEA had not placed plaintiff’s loans in deferment.
Plaintiff attached copies of her deferment applications to
the Complaint and therefore they are considered a part of the
Civ. P. 10(c).
motion to dismiss under Rule 12(b)(6) challenges the
sufficiency of the complaint, not its merits. Fed.R.Civ.P.
12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510,
1520 (7th Cir. 1990). When considering the motion, the Court
accepts as true all well pleaded facts in the
plaintiff’s complaint and draws all reasonable
inferences from those facts in the plaintiff’s favor.
AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th
Cir. 2011). To survive dismissal, the complaint must not only
provide the defendant with fair notice of a claim’s
basis, but must also be facially plausible. Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d
868 (2009); see also Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
While pro se complaints are liberally construed,
Arnett v. Webster, 658 F.3d 742, 751 (7th Cir.
2011), a plaintiff may plead herself out of court by alleging
facts that defeat the claim. Atkins v. City of
Chicago, 631 F.3d 823, 832 (7th Cir. 2011).
moves to dismiss plaintiff’s entire First Amended
Complaint for failure to state a claim. The seven-count First
Amended Complaint alleges fraudulent and negligent
misrepresentation based on PHEA allegedly providing an
incorrect fax number, breach of contract, promissory
estoppel, gross negligence, defamation, and tortious
interference with a future business partnership.
are several facts alleged in the complaint and incorporated
in the attached deferment request forms that defeat all of
plaintiff’s claims. First, the form clearly states,
“you will receive a letter indicating whether your
request has been approved or denied.” Dkt. 6,
Ex. B-E. The form also clearly states, “It is important
to continue to make payments until your alternative repayment
option has been approved.” Id. The complaint
affirmatively shows that Ms. Akinlemibola understood that her
request for deferment could be approved or denied. Dkt. 6 at
¶ 16. Ms. Akinlemibola does not assert that she ever
received written notice that her deferment request had been
approved. She also does not allege that she continued to make
payments until her deferment request had been approved.
Additionally, Ms. Akinlemibola’s co-borrowers did not
sign the deferment request as is required on the forms. Ms.
Akinlemibola signed the forms herself, claiming that her
co-borrower gave her permission to do so, and provided her
own contact information in place of the co-borrower.
Accordingly, PHEA made no guarantee that a deferment request
would be approved, and the forms themselves are improperly
state a claim for misrepresentation, whether based on fraud
or negligence, a plaintiff must allege sufficient facts to
show that damage resulted from her reliance on the false
statement. See Quinn v. McGraw-Hill Cos., 168 F.3d
331, 335 (7th Cir. 1999) (quoting Board of Education of
City of Chicago v. A, C & S, Inc.,131 Ill.2d 428,
546 N.E.2d 580, 137 Ill.Dec. 635 (Ill. 1989)). Ms.
Akinlemibola cannot show any damage that resulted from PHEA