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Schweihs v. Chase Home Finance LLC

Supreme Court of Illinois

December 15, 2016

MELINDA SCHWEIHS, Appellant
v.
CHASE HOME FINANCE, LLC, et al., Appellees.

          FREEMAN JUSTICE delivered the judgment of the court, with opinion. Chief Justice Karmeier and Justices Thomas, Kilbride, Burke, and Theis concurred in the judgment and opinion.

          OPINION

          FREEMAN JUSTICE

         ¶ 1 This tort case arose out of foreclosure proceedings involving plaintiff Melinda Schweihs's home. Plaintiff sued defendants Chase Home Finance, LLC (Chase), Safeguard Properties, Inc. (Safeguard), Todd Gonsalez, and Edilfonso Centeno for numerous torts, including emotional distress, as a result of Gonsalez and Centeno entering her home. Her emotional distress claims, which are at issue here, were dismissed by the circuit court, and the appellate court affirmed. 2015 IL App (1st) 140683. This court allowed plaintiff's petition for leave to appeal. Ill. S.Ct. R. 315 (eff. Jan. 1, 2015). For the following reasons, we affirm the judgment of the appellate court.

         ¶ 2 I. BACKGROUND

         ¶ 3 In 1997, plaintiff executed a note secured by a mortgage for a home located in Northbrook, Illinois. Chase owned the mortgage. The mortgage contained a provision granting Chase the right, in the event of a default by plaintiff, to enter onto the property to make repairs. The provision reads as follows:

"7. Protection of Lender's Rights in the Property. If Borrower fails to perform the covenants and agreements contained in this Security Instrument, or there is a legal proceeding that may significantly affect Lender's rights in the Property *** then Lender may do and pay for whatever is necessary to protect the value of the Property and Lender's rights in the Property. Lender's actions may include paying any sums secured by a lien which has priority over this Security Instrument, appearing in court, paying reasonable attorney's fees and entering on the Property to make repairs. Although Lender may take action under this paragraph 7, Lender does not have to do so."

         ¶ 4 Plaintiff defaulted on the mortgage in 2007. Chase filed a complaint to foreclose the mortgage against her and obtained a judgment of foreclosure on May 25, 2010. Plaintiff had the right to possession of her home until the redemption period expired on August 25, 2010.

         ¶ 5 To protect its interest in properties, Chase contracts with outside companies to provide property inspections and preservation services. Safeguard is one of those companies that provide national property monitoring and preservation services for residential properties in foreclosure. Safeguard's employees do not physically perform the inspections or render preservation services. Instead, Safeguard employs "Client Account Representatives" (CARs) who coordinate with local vendors, with whom Safeguard contracts. These local vendors, in turn, perform the inspections and preservation services.

         ¶ 6 On June 17, 2010, Safeguard's inspections department received a report from one of its vendors that plaintiff's property was vacant. Based on the report, a Safeguard CAR placed an "initial secure" order with A1 Builders, a local contractor that performs the property inspection services for which Safeguard contracted. An "initial secure" order may require a vendor to secure access to the property by changing one of the locks on the premises and to "winterize" the house by turning off the utilities. A1 in turn hires subcontractors, who perform the work orders. Gonsalez and Centeno worked as A1 subcontractors.

         ¶ 7 On June 22, 2010, Gonsalez and Centeno arrived at plaintiff's property to carry out the "initial secure" order. They were required to determine the occupancy status of the property before proceeding with the order. The order instructed them not to do any work if the property was occupied.

         ¶ 8 Gonsalez testified during his discovery deposition that he and Centeno conducted a visual inspection of the property. He observed that the grass on the property was uncut and the trees were overgrown. Gonsalez knocked on the front door but did not receive an answer. He also checked the gas meter and the water spout and determined that both utilities were turned off. He further observed a "for sale" sign at the property, along with a dumpster and a car parked in the driveway.

         ¶ 9 Gonsalez spoke with a neighbor who lived across the street from plaintiff's home. Gonsalez testified that the neighbor told him that the house was not occupied but a woman would come and go on occasion. She also said that there were no lights on at plaintiff's home at night. She did not recognise the car in plaintiff's driveway. She also informed him that there was a school down the street and that people from the school would park there knowing it was a vacant property.

         ¶ 10 Centeno testified during his discovery deposition that he did not talk with any neighbors but that he recalled that Gonsalez told him the neighbor stated that "they come and go. And sometimes they leave their vehicle there."

         ¶ 11 After speaking with the neighbor, Gonsalez again knocked on plaintiff's front door, without a response. Gonsalez and Centeno spent in excess of 45 minutes determining if the house was occupied. They also entered the backyard through a latched gate of the home's six-foot security fence. Gonsalez testified that he saw boxes piled on top of each other and garbage and debris on the floor, observing these through sliding glass doors. Gonsalez then contacted management at A1 Builders, relaying the abovementioned information. He was told to proceed with the work order.

         ¶ 12 To secure the premises, Gonsalez had to remove one of the secondary locks on the property. He removed the lock to the back door. Because of the boxes and debris blocking the entrance, Gonsalez could only open the door about a foot and had to climb over them to enter the home. Centeno remained at the back door and never entered the home. Once in the home, Gonsalez testified that he was confronted by a woman. Both parties were startled, and plaintiff stated that she wanted them out of her house and she was calling her lawyer. Gonsalez responded he was with the mortgage company and asked her to come to the front door to speak with him. Gonsalez then left and went around to the front and knocked on the front door, but plaintiff did not answer. Gonsalez and Centeno then waited for the arrival of the police.

         ¶ 13 At the time Gonsalez and Centeno arrived at plaintiff's home, she was a 58-year-old single woman who was living alone. Plaintiff testified during her discovery deposition that her home was in foreclosure; however, she anticipated selling her home while it was still in the redemption period. Plaintiff testified that when she placed the house for sale, she informed the realtor that the realtor was to accompany anybody that came to the property. She also testified that she was not showing the interior of the house because of the "mess" and "stuff everywhere" in piles and in boxes. She described herself as a "packrat" and testified she was in the process of packing her belongings which were in disarray.

         ¶ 14 Plaintiff heard knocking on the front door while she was in the basement;however, she was on the phone and did not respond. After the phone call, plaintiff went to the second floor of her home to continue packing. She stated that she heard the flap drop on the metal mailbox attached to her house, at which time she looked out a second-floor window. Plaintiff testified that she saw two men standing in her driveway, along with a green truck facing the street, without any markings except for a "Harley" decal on the back window. Plaintiff thought that they may have been potential buyers looking at the house, and she decided to continue to pack.

         ¶ 15 A short time later, plaintiff heard noises coming from the back of the house. She went downstairs to identify the noise and encountered Gonsalez in the family room. She testified that Gonsalez was not wearing a uniform but was in street clothes with tattoos exposed. Centeno was in the open back doorway. Plaintiff testified that she spoke first and asked, "Who are you and what are you doing in my home." Plaintiff testified that one of them told her in a "forceful way" that Chase had sent them to secure and winterize the house and that she needed to come outside to talk with them. She told them to leave and immediately called her attorney and the police. She stayed on the phone with the police dispatcher until the police arrived. The police investigated, speaking with plaintiff, Gonsalez, Centeno, and the neighbor with whom Gonsalez had spoken. No arrests were made. Gonsalez offered to replace the back-door lock with a new lock and key, but plaintiff declined.

         ¶ 16 Plaintiff testified that after the incident she was afraid while in her home and fearful that she may be attacked. On the same day of the incident, plaintiff went to the hospital because she "didn't feel right." Subsequently, she sought treatment, therapy, and medication from multiple doctors for issues with sleeping, post-traumatic stress, anxiety, and depression. Plaintiff stated that she felt anxiety when approaching her home and that at times she stayed in hotels because of her fear of subsequent break-ins. She was inhibited from packing and preparing her home for sale because of this fear. Additionally, she alleged that she sought temporary leave from her employment due to the incident but that her request was denied and she was instead terminated.

         ¶ 17 In October 2010, plaintiff filed a five-count complaint against defendants alleging trespass, negligent trespass, private nuisance, intentional infliction of emotional distress, and negligence. Extensive discovery and motion practice ensued. Defendants filed motions for summary judgment as to each of plaintiff's counts. On February 4, 2014, the circuit court heard argument on the motions, and plaintiff filed a motion for leave to amend the negligence count to negligent infliction of emotional distress.

         ¶ 18 On February 6, 2014, the court granted defendants' motions for summary judgment with respect to plaintiff's claims for private nuisance and intentional infliction of emotional distress. It denied defendants' motions with respect to the claims for trespass and negligent trespass, and those claims are still pending in the circuit court. The court also granted plaintiff's motion for leave to amend. It then dismissed the negligent infliction of emotional distress claim, as amended, pursuant to section 2-615 of the Code of Civil Procedure (Code). 735 ILCS 5/2-615 (West 2014). Finally, the court made a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010) that there was "no just reason for delaying either enforcement or appeal or both." Thereafter, plaintiff filed a timely notice of appeal.

         ¶ 19 A divided appellate court affirmed, first addressing the negligent infliction of emotional distress claim. The court noted the two types of victims in emotional distress cases: bystanders and direct victims. It determined that plaintiff was a direct victim and must allege "some physical impact" from defendants' conduct. The court found that because she did not plead any physical contact, she could not establish a claim for negligent infliction of emotional distress and that count was properly dismissed. It further noted that its conclusion was consistent with this court's holdings in Rickey v. Chicago Transit Authority, 98 Ill.2d 546, 555 (1983); Corgan v. Muehling, 143 Ill.2d 296, 304 (1991); and Pasquale v. Speed Products Engineering, 166 Ill.2d 337, 346-47 (1995). The court did acknowledge however, that certain language in Pasquale mischaracterized the holding in Corgan, which has led to some confusion in the courts. It concluded that the language in Pasquale was obiter dictum and not binding. 2015 IL App (1st) 140683.

         ¶ 20 The appellate court next addressed plaintiff's intentional infliction of emotional distress claim, finding that summary judgment was proper as a matter of law because plaintiff could not establish that defendants' conduct was "extreme and outrageous."

         ¶ 21 Justice Harris dissented regarding the negligent infliction of emotional distress claim, stating that the majority was wrong in continuing to require physical impact in claims for negligent infliction of emotional distress for direct victims. 2015 IL App (1st) 140683, ¶ 49 (Harris, J., dissenting).

         ¶ 22 We granted plaintiff's petition for leave to appeal. Ill. S.Ct. R. 315 (eff. Jan. 1, 2015). We also granted the Illinois Association of Defense Trial Counsel leave to submit an amicus curiae brief in support of defendants. Ill. S.Ct. ...


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