United States District Court, N.D. Illinois, Eastern Division
SHERRIE L. ZUBER, Plaintiff,
BAYVIEW LOAN SERVICING, LLC; KOVITZ SHIFRIN NESBIT, a Professional Corporation; MANOR HOMES OF SPRING LAKE CONDOMINIUM ASSOCIATION NO. 2; BANK OF AMERICA, N.A. & AMERICAN COMMUNITY MANAGEMENT, INC. a/k/a ACM COMMUNITY MANAGEMENT, Defendants.
MEMORANDUM OPINION AND ORDER
B. Zagel, Judge
the Court is Defendant Bayview Loan Servicing, LLC's
Partial Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6).
Plaintiff Sherrie Zuber filed a nine-count Complaint against
Bayview Loan Servicing, LLC (“Bayview”) and other
Defendants, alleging violations of the Fair Debt Collection
Practices Act (“FDCPA”) and Illinois Consumer
Fraud and Deceptive Business Practices Act
(“ICFA”). Counts I and II are FDCPA and ICFA
claims respectively, both against Bayview. Bayview seeks to
dismiss Count II. For the following reasons, Defendant
Bayview's Motion is granted.
Zuber obtained a mortgage on property located at 310 Primrose
Court in Aurora, Illinois on July 1, 2009. She defaulted on
the mortgage in May 2013 and filed for Chapter 13 bankruptcy
the bankruptcy filing, Zuber alleges that Bayview, a loan
servicing company that purchases mortgage loans in default,
acquired the servicing rights to the debt associated with the
Primrose Court property. In December 2014 and January 2015,
Bayview sent Zuber mortgage statements, including payment
coupons and monthly payment amounts, and a debt validation
letter stating that Zuber owed Bayview a total of $150,
490.83. Bayview filed for a Motion for Relief from the
Automatic Stay in Zuber's bankruptcy case on March 12,
2015. Hon. Donald R. Cassling modified the stay on March 20,
2015, granting Bayview permission “to pursue all non
bankruptcy remedies and work out options” with regard
to the Primrose Court property.
sent Zuber a notice of default and intent to accelerate on
April 2, 2015, and continued to attempt to collect the debt
throughout April and May. Zuber alleges that all of these
attempts were made with full knowledge of her bankruptcy
filing and argues that Bayview engaged in deceptive practices
to collect an uncollectible debt from her. Her complaint
states that she “has expended time and incurred costs
consulting with her attorneys as a result of Defendant's
deceptive collection actions, ” and that she was
“unduly inconvenienced and harassed by Defendants'
unlawful attempts to collect the subject debt.”
motion to dismiss under Fed.R.Civ.P. 12(b)(6) does not test
the merits of a claim, but rather the sufficiency of the
complaint. Gibson v. City of Chicago, 910 F.2d 1510,
1520 (7th Cir. 1990). In deciding a 12(b)(6) motion, the
court accepts all well-pleaded facts as true and draws all
reasonable inferences in favor of the plaintiff. Id. at
1521. To survive a 12(b)(6) motion, “a complaint
must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In
addition to the complaint, a court may also consider
documents attached to or referenced in the complaint.
Levenstein v. Salafsky, 164 F.3d 345, 347 (7th
Cir.1998) (quoting Wright v. Associated Ins. Cos.,
Inc., 29 F.3d 1244, 1249 (7th Cir.1994)). “A
complaint should not be dismissed for failure to state [a]
claim unless it appears beyond doubt that the plaintiff is
unable to prove any set of facts which would entitle the
plaintiff to relief.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 546 (2007).
state a claim under ICFA, a plaintiff must show: “(1) a
deceptive or unfair act or promise by the defendant; (2) the
defendant's intent that the plaintiff rely on the
deceptive or unfair practice; and (3) that the unfair or
deceptive practice occurred during a course of conduct
involving trade or commerce.” Camasta v. Jos. A.
Bank Clothiers, Inc., 761 F.3d 732, 739 (7th Cir. 2014).
ICFA claims are subject to the heightened pleading standard
of Fed.R.Civ.P. 9(b), which requires the circumstances of
fraud to be stated “with particularity.”
Id. at 736-737. When, as here, the plaintiff is a
private party, he must also show that he suffered
“actual damage” from the alleged violation.
See 815 ILCS 505/10a(a); Kim v. Carter's
Inc., 598 F.3d 362, 364 (7th Cir. 2010). The Seventh
Circuit has said that “actual damages” means the
plaintiff must have suffered “actual pecuniary
loss”-in other words, actual damages are economic and
calculable, not emotional or intangible. Kim, 598
F.3d at 365 (citing Mulligan v. QVC, Inc., 888
N.E.2d 1190, 1197 (2008)); Morris v. Harvey Cycle &
Camper, Inc., 911 N.E.2d 1049, 1053-54 (2009) (plaintiff
cannot state ICFA claim when he alleges damages consisting
only of “emotional distress, inconvenience, and
Plaintiff has only pleaded emotional disturbance and
inconvenience in the form of the distress brought on by the
collection letters and the time expended to bring this
lawsuit. Plaintiff argues that she has incurred costs in the
administration of this lawsuit and cites a case in this
district in which Judge Gottschall commented, “Some
courts have found a plaintiff's expenditure of time and
money incident to defending a debt collection effort to
suffice as damages under the ICFA.” Thompson v.
CACH, LLC, 14 CV 0313, 2014 WL 5420137, (N.D. Ill. Oct.
24, 2014). Yet that is not the circumstance we have here.
There is no indication in the complaint or Plaintiffs
subsequent filings that she has defended the debt collection
effort, let alone that she expended money to do so. On the
contrary, Bayview points to a more analogous case in this
district where the plaintiff alleged damages in the form of
the time and money expended when consulting with his
attorneys. Judge Kendall “decline[d] to read the actual
damages prong so broadly as to allow for the requirement to
be met simply by a plaintiffs spending time consulting with
his attorney, ” especially since “attorney's
fees are reimbursed pursuant to a different part of the
statute.” Price v. Seterus, Inc., 15 C 7541,
pp. 13 - 14, 2016 WL 1392331, at *7 (N.D. Ill. Apr. 8, 2016)
(citing Armbrister v. Pushpin Holdings, LLC, 896
F.Supp.2d 746, 756 (N.D. Ill. 2012); Garcia v.
Receivables Performance Mgmt, LLC, No. 14 C 5367, 2014
WL 5543885, at *2 (N.D. Ill. Nov. 3, 2014)). I agree.
Plaintiff has not pleaded actual damages, either generally or
with the required specificity. Her ICFA claim against Bayview
must therefore be dismissed.
foregoing reasons, Defendant Bayview's Motion is granted.