United States District Court, N.D. Illinois, Eastern Division
L. ALONSO, United States District Judge
bring this case under the Fair Debt Collection Practices Act,
15 USC § 1692 et seq. (“FDCPA”) and
the Illinois Consumer Fraud and Deceptive Business Practices
Act, 815 ILCS 505/1 et seq. (“ICFA”) and
assert multiple Illinois state-law claims. Before the Court
are defendants Nationstar Mortgage, LLC
(“Nationstar”) and Safeguard Properties,
LLC's (“Safeguard”) motions to stay or dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(1). For the
reasons set forth below, the motions are denied.
2008, plaintiff Robert Jackson entered into a mortgage with
Taylor, Bean & Whitaker Mortgage Corporation for real
property located at 9130 South Mozart Avenue in Evergreen
Park, Illinois. (Am. Compl. ¶¶ 17, 19.) That
mortgage was later transferred to Ocwen Loan Servicing, LLC
(“Ocwen”) and then to Nationstar. (Id.
¶¶ 22, 28.) On July 20, 2010, plaintiffs defaulted
on their mortgage and Ocwen filed a state foreclosure action,
which is currently pending. (Id. ¶¶ 24,
26.) See Ocwen Loan Servicing, LLC v. Robert
Jackson, Case No. 10 CH 31109. In March 2015, while the
state foreclosure action was ongoing, plaintiffs claim that
Safeguard representatives (at Nationstar's direction)
broke into their home while they were out of town despite
clear evidence that plaintiffs were currently residing there.
(Id. ¶¶ 32, 38, 50, 52, 73.) Plaintiffs
allege that these individuals destroyed portions of their
home and property, including changing the locks and removing
personal property from the premises. (Id.
¶¶ 65, 71.) Plaintiffs also assert that they are
still residing in the property that is the subject of the
foreclosure action. (Pl.'s Resp. at 6.)
considering a Rule 12(b)(1) motion to dismiss for
lack of subject-matter jurisdiction, a district court accepts
as true all well-pleaded factual allegations and draws
reasonable inferences from the allegations in favor of the
plaintiff. Kelley v. Med-1 Sols., LLC, 548 F.3d 600, 604
(7th Cir. 2008) (citing Capitol Leasing Co. v. FDIC,
999 F.2d 188, 191 (7th Cir. 1993)). The court may also
look beyond the allegations of the complaint and consider
affidavits and other documentary evidence to determine
whether subject-matter jurisdiction exists. Capitol
Leasing, 999 F.2d at 191.
argues that this Court should decline jurisdiction pursuant
to the Colorado River abstention doctrine.
(Def.'s Mot. at 3.) That doctrine endorses federal
abstention in “exceptional circumstances” where a
case is more appropriately handled in the parallel state
court proceeding. Colorado River Water Conservation Dist.
v. United States, 424 U.S. 800, 813- 14 (1976). The
Supreme Court emphasized that federal courts have a
“virtually unflagging obligation . . . to exercise the
jurisdiction given them” and “[a]bstention from
the exercise of federal jurisdiction is the exception, not
the rule.” Id. at 813, 817. The Seventh
Circuit has held that determining whether to abstain under
Colorado River requires district courts to undertake
a two-part inquiry: 1) to “determine whether the
concurrent state and federal actions are actually
parallel” and 2) to consider whether “exceptional
circumstances” exist to justify abstention. Adkins
v. VIM Recycling, Inc., 644 F.3d 483, 498 (7th Cir.
2011) (quoting Tyrer v. City of S. Beloit, 456 F.3d
744, 751 (7th Cir. 2006)).
determine whether lawsuits are parallel actions, courts
consider whether “substantially the same parties are
contemporaneously litigating substantially the same issues in
another forum.” Huon v. Johnson & Bell,
Ltd., 657 F.3d 641, 646 (7th Cir. 2011) (quoting
Clark v. Lacy, 376 F.3d 682, 686 (7th Cir. 2004)).
Although lawsuits need not be identical to be deemed
parallel, there must be a “substantial likelihood that
the state litigation will dispose of all claims presented in
the federal case.” Adkins, 644 F.3d at 499
(quoting Clark, 376 F.3d at 686). “Any doubt
regarding the parallel nature of the state suit should be
resolved in favor of exercising jurisdiction.”
Id. (quoting AAR Int'l, Inc. v. Nimelias
Enters., S.A., 250 F.3d 510, 520 (7th Cir. 2001)).
points to several factors that it says weigh in favor of
deeming the two actions parallel. First, both cases revolve
around questions of the plaintiffs' right to possess the
property under Illinois law and the parties' compliance
with the terms of the mortgage. (Def.'s Mot. at 4.)
Second, defendant argues that the state action is so
intertwined with the federal case that a state-court
determination that plaintiffs defaulted on their obligations
prior to the alleged break-in would cause the claims in this
case to fail as a matter of law. (Def.'s Reply at 2.)
Defendant notes that a state action need not dispose of every
single claim in the parallel federal action as long as it
resolves “the bulk of the factual and legal questions
‘by examining largely the same evidence'” as
in the federal case. (Id. at 4 (quoting Delaney
v. Specialized Loan Servicing, LLC, No. 15 C 5260, 2015
WL 7776902, at *4 (N.D. Ill.Dec. 3, 2015) (quoting
Huon, 657 F.3d at 647)).) Finally, it claims that
because the Jacksons could bring Safeguard into the
state-court action via a cross-claim or third-party
complaint, it is disingenuous to suggest that the parties in
the two cases are not parallel. (Def.'s Reply at 4-5.)
plaintiffs argue that there is little factual or legal
overlap between this case and the state foreclosure action.
This case arises solely from the events of March 2015, which
play no role in the state foreclosure action. Moreover, even
if the state foreclosure action resolves the question of who
possesses the real property at issue, plaintiffs'
allegations about the alleged trespassing and damaging of
their personal property would remain. Plaintiffs point out
that Karen Jackson and Safeguard are not parties to the state
case. (Pls.' Resp. at 3-4.) Only Robert Jackson and
Nationstar are parties to both cases. Thus, they contend,
neither the parties nor the issues are substantially the
same. (Id. at 3-5.) Finally, they note that the
Seventh Circuit has said that the presence of a federal
question in the case, as with the FDCPA claim here, weighs
heavily against abstention. (Id. at 7 (citing
Sverdrup Corp. v. Edwardsville Cmty. Unit Sch. Dist. No.
7, 125 F.3d 546, 549 (7th Cir. 1997).).
Court agrees that these cases are not parallel because of the
distinct factual bases and differing legal issues. The state
court case is a mortgage-foreclosure action. This lawsuit was
brought to determine whether defendants violated the FDCPA
when they entered plaintiff's property two years ago
while the foreclosure action was pending. While the suits
involve the same property, they seek to resolve different
issues related to that property. See McKenney-
Becker v. Safeguard Props., LLC, No. 14-cv-04514,
2015 WL 170520, at *8 (N.D. Ill. Jan 13, 2015) (denying
motion to abstain under Colorado River in similar
circumstances and stating “[e]ven if Nationstar . . .
succeeds in the foreclosure action . . . plaintiffs would
still have a separate claim against [other defendants] for
their actions or authorization of their actions entering the
Property and removing Plaintiffs' personal belongings. As
such, there is not a substantial likelihood that the state
foreclosure action will dispose of Plaintiffs' claims
presented in this federal litigation”). Because the
cases are not parallel, the Court need not discuss the second
part of the Colorado River analysis. Defendants'
motions are denied.
foregoing reasons, defendants' motions to dismiss or stay
 and  are denied. Status hearing ...