United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Hunte sued Safeguard Properties Management, LLC and JPMorgan
Chase Bank, N.A., alleging violations of the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C.
§ 1692 et seq., and state law. Doc. 1.
Safeguard and Chase each move to dismiss under Federal Rule
of Civil Procedure 12(b)(6). Docs. 19, 22. The motions are
granted, and the complaint is dismissed without prejudice.
resolving a Rule 12(b)(6) motion, the court assumes the truth
of the operative complaint's well-pleaded factual
allegations, though not its legal conclusions. See Zahn
v. N. Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th
Cir. 2016). The court must also consider “documents
attached to the complaint, documents that are critical to the
complaint and referred to in it, and information that is
subject to proper judicial notice, ” along with
additional facts set forth in Hunte's brief opposing
dismissal, so long as those additional facts “are
consistent with the pleadings.” Phillips v.
Prudential Ins. Co. of Am., 714 F.3d 1017, 1020 (7th
Cir. 2013). The facts are set forth as favorably to Hunte as
those materials allow. See Pierce v. Zoetis, 818
F.3d 274, 277 (7th Cir. 2016). In setting forth those facts
at this stage, the court does not vouch for their accuracy.
See Jay E. Hayden Found. v. First Neighbor Bank,
N.A., 610 F.3d 382, 384 (7th Cir. 2010).
owns real property in Momence, Illinois. Doc. 1 at ¶ 8.
He entered into a mortgage agreement with Chase secured by
the property. Id. at ¶ 9. Hunte eventually fell
behind on his payments, sending the loan into default.
Id. at ¶¶ 13-14. In May 2016, Hunte
decided to complete a short sale of the property, and in
June, he retained a law firm to assist him in the process.
Id. at ¶¶ 18-19. He authorized Chase to
share information concerning his mortgage with his attorneys.
Id. at ¶ 20. Chase then approved
“pre-foreclosure.” Id. at ¶ 23.
July, while Hunte was out of town, his law firm sent an agent
to check the property for mail. Id. at ¶ 27.
The mail included a letter from Chase (which Hunte's
attorney also received directly), stating: “We've
been notified your property is vacant. If this is incorrect
and you're still living in or maintaining the property,
please contact us … by August 3, 2016 … . If we
don't receive your response by then, we'll secure the
property, which may include changing the locks and
winterizing it.” Id. at ¶¶ 28-29.
Hunte's attorney responded to Chase via e-mail, fax, and
U.S. mail to say that Hunte had not abandoned the property.
Id. at ¶¶ 30-31.
Hunte returned home, he began receiving letters asking if he
still lived there, and he responded by calling Chase to alert
it that he did. Id. at ¶¶ 35-36. Hunte
then left town once more. Id. at ¶ 39. On
September 14, a neighbor called to tell him that Safeguard
representatives had reported that his house was being seized
due to a foreclosure action. Id. at ¶ 41, 44.
Upon returning, Hunte found the home empty of his personal
belongings, which had been placed in dumpsters. Id.
at ¶ 46. The house's locks had been changed and its
plumbing winterized. Ibid.
then filed this lawsuit against Safeguard and Chase. Only one
count, an FDCPA claim against Safeguard, arises under federal
law. Id. at ¶¶ 72-84. Hunte premises
subject matter jurisdiction over the state law claims on the
supplemental jurisdiction, 28 U.S.C. § 1367(a); the
complaint does not expressly invoke the diversity
jurisdiction, 28 U.S.C. § 1332, and it does not allege
the citizenship of Hunte or Safeguard, precluding any
conclusion on the pleadings that the parties are completely
diverse. Id. at ¶¶ 1, 3-6.
court will begin with the FDCPA claim, which alleges that
Safeguard violated 15 U.S.C. §§ 1692f(6)(A),
1692c(b), 1692d(1), and 1692e(2), (10). Id. at
¶¶ 73-84. To be held liable under the FDCPA, a
defendant must be a “debt collector.” See
Ruth v. Triumph P'ships, 577 F.3d 790, 796 (7th Cir.
2009) (“The FDCPA regulates only the conduct of
‘debt collectors … .'”). The statute
defines “debt collector, ” in pertinent part, as:
[A]ny person who uses any instrumentality of interstate
commerce or the mails in any business the principal purpose
of which is the collection of any debts, or who regularly
collects or attempts to collect, directly or indirectly,
debts owed or due or asserted to be owed or due another.
… For the purpose of section 1692f(6) of this title,
such term also includes any person who uses any
instrumentality of interstate commerce or the mails in any
business the principal purpose of which is the enforcement of
15 U.S.C. § 1692a(6).
opposition brief, Hunte does not contend that Safeguard's
principal purpose is to collect debts. Rather, he argues that
its principal purpose is to enforce security interests. As
the text of § 1692a(6) clearly provides, a business with
that principal purpose qualifies as a “debt
collector” where, as here, the plaintiff alleges a
violation of § 1692f(6), which prohibits “[t]aking
or threatening to take any nonjudicial action to effect
dispossession or disablement of property if … (A)
there is no present right to possession of the property
claimed as collateral through an enforceable security
interest; (B) there is no present intention to take
possession of the property; or (C) the property is exempt by
law from such dispossession or disablement.” Doc. 33 at
2-6; see Nadalin v. Automobile Recovery Bureau,
Inc., 169 F.3d 1084, 1085 (7th Cir. 1999). Safeguard
retorts that it is not a “debt collector” because
its principal purpose is property preservation, not the
enforcement of security interests. Doc. 25 at ¶¶
5 of Hunte's complaint alleges that
“Safeguard's principal purpose is the enforcement
of security interests.” Doc. 1 at ¶ 5. If that
were all the complaint said about Safeguard's principal
purpose, Safeguard would be, at least at the pleading stage,
a debt collector for purposes of a § 1692f(6) claim. But
Paragraph 4 of the complaint alleges that Safeguard's
“principal purpose [is to] manage and preserve at-risk
and foreclosed properties.” Id. at ¶ 4.
If that were true, then Safeguard is not a debt collector
under the FDCPA. See Alqaq v. CitiMortgage, Inc.,
2014 WL 1689685, *3-4 (N.D. Ill. Apr. 29, 2014) (holding that
property preservation incidental to debt collection does ...