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Tripicchio v. Seterus, Inc.

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

December 20, 2016

SETERUS, INC., a Delaware corporation, and CODILIS AND ASSOCIATES, P.C ., an Illinois corporation, Defendants.



         The 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 [17] and Codilis' motion to dismiss [8] are granted.


         The 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.

         The 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 Tripicchios:

[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.

         (Dkt. 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.

         The 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.

         On 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.

         Legal Standard

         A 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, the-defendant-lawfully-harmed-me-accusation.” 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).


         Breach of Contract

         In 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 ...

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