United States District Court, N.D. Illinois, Eastern Division
THOMAS A. TRIPICCHIO and DENISE R. TRIPICCHIO, Plaintiffs,
SETERUS, INC., a Delaware corporation, and CODILIS AND ASSOCIATES, P.C ., an Illinois corporation, Defendants.
MEMORANDUM OPINION AND ORDER
JOHNSON COLEMAN, UNITED STATES DISTRICT COURT JUDGE
plaintiffs, Thomas A. Tripicchio and Denise R. Tripicchio,
brought this action against defendants Seterus, Inc.
(“Seterus”) and Codilis and Associations, P.C.
(“Codilis”). The Tripicchios allege that Seterus
breached its contract with the Tripicchios, violated 12 C.F.R
§1024.41(g), and violated the Illinois Fraud Act and
that Codilis violated the Fair Debt Collection Practices Act.
Seterus and Codilis both move to dismiss the claims against
them for failure to state a claim on which relief can be
granted. For the reasons set forth herein, both Seterus'
motion to dismiss  and Codilis' motion to dismiss 
following facts are taken from the complaint and its
attachments and are accepted as true for the purpose of the
present motion. The Tripicchios owned a home in Lake Zurich,
Illinois, which secured a mortgage held by Bank of America.
In 2014, Bank of America initiated foreclosure proceedings
against the Tripicchios and a judgment of foreclosure was
entered. On December 1, 2015, Seterus took over the servicing
of the Tripicchios' loan.
Tripicchios submitted a complete loss mitigation application
to Seterus. Seterus subsequently approved the Tripicchios to
enter a trial period plan (“TPP”). Under the TPP,
the Tripicchios were to make three monthly payments of a
modified amount, after which they would receive a permanent
loan modification. The TPP also provided that Seterus would
not proceed with the foreclosure sale as long as the
Tripicchios were in compliance with the terms of the TPP. In
order to accept the trial offer, the TPP required that the
[S]end [Seterus] the first ‘trial period payment, '
by the Due Date . . . To qualify for a permanent
modification, you must make the remainder of the trial period
payments on time and as indicated and maintain eligibility.
Payment amounts shown do not include your PMI [private
mortgage insurance] premium of $145.98, which you must pay in
addition to each trial payment.
1-1). The TPP provided that the Tripicchios were required to
make monthly payments of $3, 237.96 on February 1, 2016,
March 1, 2016, and April 1, 2016.
evidence attached to the complaint shows that the Tripicchios
made three payments of $3, 237.96. The first payment was
Dated: February 23, 2016 and received on February 26, 2016.
The second payment was received on March 30, 2016. The third
payment was signed on April 27, 2016, and received on April
28, 2016. Seterus accepted all three of these payments.
April 25, 2016, Codilis filed a Notice of Sherriff's Sale
of Real Estate in the state court foreclosure case. Codilis
filed this notice at Seterus' direction, although Bank of
America remained the nominal plaintiff in the state court
action. The Tripicchios subsequently filed this action
against Seterus and Codilis.
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) tests the legal sufficiency of the complaint, not
the merits of the allegations. The allegations must describe
the claim in sufficient detail to give the defendant fair
notice of what the claim is and the grounds upon which it
rests and must contain sufficient factual material to raise a
plausible right to relief. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 569 n.14, 127 S.Ct. 1955, 1973,
167 L.Ed.2d 929 (2007). Although Rule 8 does not require a
plaintiff to plead particularized facts, the complaint must
allege factual allegations that raise a right to relief above
the speculative level.” Arnett v. Webster, 658
F.3d. 742, 751-52 (7th Cir. 2011). In other words, Rule 8
“does not require ‘detailed factual allegations,
' but it demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 1949, 173 L.Ed.2d 868 (2009), see also Fed.R.Civ.P.
8(a). When ruling on a motion to dismiss, the court must
accept all well-pleaded factual allegations in the complaint
as true and draw all reasonable inferences in the
plaintiff's favor. Park v. Ind. Univ. Sch. Of
Dentistry, 692 F.3d 828, 830 (7th Cir. 2012).
order to state a claim for breach of contract under Illinois
law, the Tripicchios must allege: “(1) the existence of
a valid and enforceable contract; (2) substantial performance
by the plaintiff; (3) breach of contract by the defendant;
and (4) resultant injury to the ...