United States District Court, N.D. Illinois, Eastern Division
ATIQ U. REHMAN, et al. Plaintiffs,
PIERCE & ASSOCIATES, P.C., et al Defendants.
DER-YEGHIAYAN, District Judge
matter is before the court on Defendant Wells Fargo Home
Mortgage's (Wells Fargo) and Defendant Pierce and
Associates, P.C.'s (Pierce) motions to dismiss. For the
reasons stated below, Pierce's motion to dismiss the
federal claims is denied and Wells Fargo's motion to
dismiss is granted.
August 23, 2003, Plaintiff Atiq Rehman, Plaintiff Safia
Rehman, and Plaintiff Shamus Rehman allegedly executed a
mortgage (Mortgage) in favor of Wells Fargo to secure a
promissory note. On October 1, 2014, Plaintiffs allegedly
defaulted on the Mortgage. On March 30, 2015, Wells Fargo, in
accordance with 735 ILCS 5/15-1502.5(c), allegedly provided
grace period notice to Plaintiffs.
allege that grace period notice provided Plaintiffs with
thirty days to seek housing counseling. On April 24, 2015,
Wells Fargo was allegedly notified that Plaintiffs were
seeking housing counseling. On May 13, 2015, Pierce,
attorneys at law, filed a complaint to foreclose mortgage in
the State court on behalf of Wells Fargo. Plaintiffs filed a
motion to dismiss the complaint in State court, which was
granted on February 9, 2016. On May 12, 2016, Plaintiffs
filed the complaint in this action alleging claims under the
Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §
1692 et seq., against Pierce (Counts I - IV) and a
claim under the Illinois Consumer Fraud and Deceptive
Business Practices Act (ICFA), 815 ILCS 505/1 et
seq., against Wells Fargo (Count V). Pierce moves to
dismiss the claims in Counts I - IV pursuant to Federal Rule
of Civil Procedure 12(b)(6)(Rule 12(b)(6)). Wells Fargo moves
to dismiss the claims in Count V pursuant to Rule 12(b)(6)
and, in the alternative, Federal Rule of Civil Procedure Rule
12(b)(1) requires a court to dismiss an action when it lacks
subject matter jurisdiction. United Phosphorus, Ltd. v.
Angus Chemical Co., 322 F.3d 942, 946 (7th Cir.
2003)(overruled on separate grounds). If the concern of the
court or party challenging subject matter jurisdiction is
that “subject matter jurisdiction is not evident on the
face of the complaint, the motion to dismiss pursuant to Rule
12(b)(1) would be analyzed as any other motion to dismiss, by
assuming for purposes of the motion that the allegations in
the complaint are true.” Id.; see also Ezekiel v.
Michel, 66 F.3d 894, 897 (7th Cir. 1995)(stating that
when reviewing a motion to dismiss brought under Rule
12(b)(1), the court “must accept as true all
well-pleaded factual allegations, and draw reasonable
inferences in favor of the plaintiff”). However, if the
complaint appears on its face to indicate that the court has
subject matter jurisdiction, “but the contention is
that there is in fact no subject matter
jurisdiction, the movant may use affidavits and other
material to support the motion.” United Phosphorus,
Ltd., 322 F.3d at 946. For the purpose of determining
subject matter jurisdiction, the court “‘may
properly look beyond the jurisdictional allegations of the
complaint and view whatever evidence has been submitted on
the issue to determine whether in fact subject matter
jurisdiction exists.'” Ezekiel, 66 F.3d at
897 (quoting Capitol Leasing Co. v. Federal Deposit
Insurance Corp., 999 F.2d 188, 191 (7th Cir. 1993)). The
burden of proof in regards to a Rule 12(b)(1) motion is
“on the party asserting jurisdiction.” United
Phosphorus, Ltd., 322 F.3d at 946.
ruling on a motion to dismiss brought pursuant to Rule
12(b)(6), the court must draw all reasonable inferences that
favor the plaintiff, construe the allegations of the
complaint in the light most favorable to the plaintiff, and
accept as true all well-pleaded facts and allegations in the
complaint. Appert v. Morgan Stanley Dean Witter,
Inc., 673 F.3d 609, 622 (7th Cir. 2012);
Thompson v. Ill. Dep't of Prof'l Regulation,
300 F.3d 750, 753 (7th Cir. 2002). A plaintiff is required to
include allegations in the complaint that “plausibly
suggest that the plaintiff has a right to relief, raising
that possibility above a ‘speculative level'”
and “if they do not, the plaintiff pleads itself out of
court.” E.E.O.C. v. Concentra Health Services,
Inc., 496 F.3d 773, 776 (7th Cir. 2007)(quoting in part
Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965
(2007)); see also Morgan Stanley Dean Witter, Inc.,
673 F.3d at 622 (stating that “[t]o survive a motion to
dismiss, the complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face, ” and that “[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”)(quoting Ashcroft v. Iqbal, 556 U.S.
662 (2009))(internal quotations omitted).
Wells Fargo Motion to Dismiss ICFA Claim
Alleged Unfair Practices
Fargo argues that Plaintiffs fail to allege facts that Wells
Fargo violated the ICFA. To state an ICFA claim, a plaintiff
must plead “(1) a deceptive or unfair act or practice
by the defendant; (2) the defendant's intent that the
plaintiff rely on the deceptive or unfair practice; and (3)
the unfair or deceptive practice occurred during a course of
conduct involving trade or commerce.” Siegel v.
Shell Oil Co., 612 F.3d 932, 934 (7th Cir.2010). Also,
“a plaintiff must demonstrate that the defendant's
conduct is the proximate cause of the injury.”
Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 574
(7th Cir. 2012). A practice can be deemed unfair
“because of the degree to which it meets one of the
criteria or because to a lesser extent it meets all
three.” Windy City Metal Fabricators & Supply,
Inc. v. CIT Tech. Fin. Servs., Inc., 536 F.3d 663, 669
(7th Cir. 2008). Unfairness under the ICFA “depends on
a case-by-case analysis.” Siegel v. Shell Oil
Co., 612 F.3d 932, 935 (7th Cir. 2010).
plaintiff “may allege that conduct is unfair under ICFA
without alleging that the conduct is deceptive.”
Siegel v. Shell Oil Co., 612 F.3d 932, 935 (7th Cir.
2010). An unfair practices claim need not meet Federal Rule
of Civil Procedure 9(b)'s heightened pleading standard
because it is not based on fraud. Camasta v. Jos. A. Bank
Clothiers, Inc., 761 F.3d 732, 737 (7th Cir. 2014).
Unfair conduct is that which (1) violates public policy, (2)
is “so oppressive that the consumer has little choice
but to submit, ” or (3) causes consumers substantial
injury. Siegel, 612 F.3d at 935. Plaintiffs'
complaint alleges only unfair practices against Wells Fargo.
contend the unfair practice was the filing of the lawsuit.
Wells Fargo argues that the alleged improper filing of a
lawsuit cannot form the basis of an ICFA cause of action.
Under Illinois law, the only causes of action that can arise
from the wrongful filing of a lawsuit are malicious
prosecution and abuse of process. Havaco of America, Ltd.
v. Hollobow, 702 F.2d 643, 646 (7th Cir. 1983).
Plaintiffs argue that their claims are not based on the
alleged wrongful filing of the lawsuit, but are based on
Wells Fargo's “conduct outside of the foreclosure
proceedings, and, in particular, the sending of the Grace
Period Notice. . .” (Mot. 3). On March 30, 2015, Wells
Fargo, in ...