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Sneed v. Winston Honore Holdings, LLC

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

February 3, 2017

JOSEPH SNEED, Plaintiff,


          Charles P. Kocoras United States District Judge.

         Now before the Court are three motions to dismiss Plaintiff Joseph Sneed's (“Sneed”) complaint: (i) pursuant to Federal Rules of Civil Procedure 12(b)(5) and (6) by Defendant Paul Wersant (“Wersant”); (ii) pursuant to Federal Rule of Civil Procedure 12(b)(6) by Sequoia Financial Solutions, Inc. (“Sequoia”); and (iii) pursuant to Federal Rule of Civil Procedure 12(b)(6) by Defendant Kent Sederman (“Sederman”). For the following reasons, the Court grants in part and denies in part Defendants' motions.


         For purposes of the instant motions, the following well-pleaded allegations derived from Sneed's complaint are accepted as true. The Court draws all reasonable inferences in favor of Sneed. See Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).

         Sequoia, by and through its attorney, Wersant, filed a foreclosure action against Sneed. See Sequoia Financial Solutions, Inc. v. Joseph Sneed, et al, Case No. 14-cv-6688. Sequoia and Wersant thereafter hired Winston Honore Holdings, LLC d/b/a Accurate Serve (“Winston”) and Sederman to serve process on Sneed. According to Sneed's complaint, on “or around September 12, 2014, Sederman and Winston, via Wersant, executed and filed with the Court a false Return of Service (‘the Return').”

         In the Return, Sederman and Wersant falsely claimed that Sederman executed substitute service on Sneed by serving his mother Annie Sneed at the home that they both share. However, Sneed asserts that no member of his family was served by Defendants. Sneed also alleges that other “false returns were filed thereafter in an attempt to amend defects in the original Return.” This Court entered a default judgment against Sneed in the foreclosure matter on January 13, 2015.

         Sneed further alleges that Defendants “conspired to deprive [him] of equal protection of the law, namely to deprive [him] of [his] due process right to proper notice of the lawsuit.” Sneed claims that he did not learn about the foreclosure action against him until February 27, 2015 when he received a “postcard advertisement . . . from a private attorney informing him that his home was scheduled to be sold on March 13, 2015.” Thereafter, Sneed hired an attorney in March 2015. Sneed alleges that it was not until after he consulted with his attorney that he became aware that “Defendants had executed and filed the Return [indicating] Annie Sneed [was] served on September 12, 2014, and that a default had been entered.” On March 29, 2015, Sneed's counsel filed a motion to quash service in the foreclosure matter. We granted the motion to quash on October 6, 2015. In bringing the current action, Sneed alleges that “Defendants made false sworn written statements, and filed and presented said statements in court to induce [Sneed] to believe that service had been effected, and that personal jurisdiction had been obtained over [Sneed]-all in order to attempt to enforce and collect an alleged consumer debt from [Sneed].” Accordingly, Sneed brings this suit alleging a violation of the Fair Debt Collection Practices Act (the “FDCPA”) against all Defendants (Count I); abuse of process claims against all Defendants (Count II); and violations of the Illinois Consumer Fraud Act (“ICFA”) against Sequoia, Winston, and Sederman (Count III).

         LEGAL STANDARDS A. Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(5)

         Rule 4(e) allows service to be made in one of three ways. First, a defendant can be personally given a copy of the complaint and summons. Fed.R.Civ.P. 4(e)(2); 735 ILCS 5/2-203(a)(1). Second, copies can be left at the defendant's abode with a person of suitable age and discretion. Fed.R.Civ.P. 4(e)(2). Third, if the defendant has an agent who is authorized by the defendant or by operation of law to receive service of process on the defendant's behalf, the complaint and summons can be personally given to that agent. Id. An agency of this kind does not typically arise through implication and is “intended to cover the situation where an individual actually appoints an agent for that purpose.” Schultz v. Schultz, 436 F.2d 635, 637 (7th Cir. 1971). When a defendant challenges the sufficiency of service, the burden is on the plaintiff to affirmatively demonstrate that service was proper. Robinson Engr. Co. v. Pension Plan & Trust, 223 F.3d 445, 453 (7th Cir. 2000).

         B. Motion to Dismiss Pursuant to Fed. R. Civ. Proc. 12(b)(6)

         When considering a 12(b)(6) motion to dismiss, a court evaluates the legal sufficiency of a plaintiff's complaint, not its merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a motion to dismiss, a plaintiff need only provide a “short and plain statement” under Rule 8(a)(2); the particulars of the claim are not required. Midwest Gas Servs. v. Ind. Gas. Co., 317 F.3d 703, 710 (7th Cir. 2002). Nonetheless, to withstand a motion to dismiss, a complaint must allege facts that set forth the essential elements of the cause of action. Doherty v. City of Chi, 75 F.3d 318, 326 (7th Cir. 1996).


         A. Wersant's 12(b)(5) Motion

         We first consider whether Wersant was properly served. Sneed claims that he served Wersant by delivering the complaint and summons to Michelle Stimmel (“Stimmel”), a receptionist in Wersant's office. Wersant argues that Stimmel is not an “agent authorized to accept service.” Since Wersant has challenged the sufficiency of service, the ...

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