United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
J. Tharp, Jr. United States District Judge.
Nirav Thakkar has sued his mortgage servicer and several
companies associated with so-called “property
preservation services” after his home was twice broken
into and ransacked by agents carrying out orders to
“secure” the property for foreclosure
proceedings, despite the fact that Thakkar was current on the
mortgage and was occupying the home. Thakkar asserts a
variety of state law claims against the various defendants,
two of which (BaXol Properties, LLC, and Altisource Portfolio
Solutions, S.A.) have moved to dismiss. In addition, several
of the property preservation services companies have filed
third party complaints against Green Group Corporation, the
company that did the “on the ground” work. Green
Group has moved for a more definite statement of these
claims. For the reasons stated below, BaXol's motion to
dismiss is denied, Altisource Portfolio Solutions' motion
is granted without prejudice, and Green Group's motion is
facts alleged in this case are relatively simple, but
disturbing. Plaintiff Nirav Thakkar alleges that the
defendants twice broke into his home, changed the locks, and
took his personal property, all in preparation for a mortgage
foreclosure proceeding that was entirely unwarranted. Thakkar
is an Illinois resident who lived from 2007 to January 2014
at 311 Danbury Drive in Naperville, Illinois. Id. at
¶ 15. Thakkar's uncle bought the property in 2006
using a mortgage with the intention that Thakkar would live
there. Id. at ¶ 63. Thakkar
“leased” the home from his uncle from 2007 until
December 2013 by making all payments on the home's
mortgage and paying the utilities. Id. at ¶ 64.
On December 23, 2013, Thakkar purchased the property and
remains the legal owner today. Id. at ¶ 65.
2006 to January 2013, the mortgage on Thakkar's home was
serviced by GMAC. Compl. ¶ 67. On February 7, 2013,
defendant Ocwen Loan Servicing, LLC (“Ocwen”)
notified Thakkar that Ocwen would be servicing the mortgage
effective February 16, 2013. Id. at ¶ 69. At
the time, Thakkar had made all the required monthly mortgage
payments without incident and was current on the mortgage.
Id. at ¶¶ 67, 70. Immediately after the
transfer to Ocwen, however, Ocwen began sending
“statement and demand letters” regarding
“late” payments. Id. at ¶ 71. Ocwen
also began billing Thakkar for “property preservation
services” assessed by defendant
Altisource. Id. at ¶ 72.
2013, Thakkar “regularly” called Ocwen to dispute
the charges and the allegations that he was late or in
default to no avail. Compl. ¶ 73. Ocwen, however,
claimed it did not have a record of his past payments to GMAC
and insisted he was in default. Id. Thakkar sent
Ocwen proof of his past mortgage payments, but Ocwen refused
to correct the account. Id. at ¶ 74. In
September 2013, Ocwen declared the mortgage more than 45 days
delinquent and referred the home for “property
preservation.” Id. at ¶ 77.
where the chain of other defendants comes in. The property
preservation request was automatically sent to Altisource
through an electronic system. Compl. ¶ 52. On September 5,
2013, Altisource issued a work order to defendant Laudan
Properties, LLC (“Laudan”) for an “exterior
inspection and occupancy determination.” Id.
at ¶ 78. Ocwen did not tell Thakkar about this work
order or ask whether he was living in the property.
Id. at ¶ 79. On September 14, 2013, Laudan
completed the inspection and reported that although the
utility meters were active, it considered the property
vacant. Id. at ¶ 80. When this determination
was added to the electronic system, a “series of
additional pre-foreclosure work orders were automatically
assigned to” defendant BaXol Properties, LLC
(“BaXol”). Id. at ¶ 82. These work
orders included changing the locks, shutting off utilities,
inspecting the interior, and removing property. Id.
No party sought a court order. Id. BaXol was
“contractually required to facilitate completion of the
work orders” and assigned the orders to Green Group
Corporation (“Green Group”). Id. at
October 7 or 8, 2013, Green Group performed the work it had
been hired to do - it broke in and entered the property,
changed the locks, conducted an interior inspection, shut off
utilities, and removed Thakkar's property. Compl. ¶
88. Green Group took a number of pictures to document its
work, which were uploaded to the electronic system.
Id. at ¶ 89-90. The pictures showed many rooms
were neat and well-maintained and at the end the rooms had
been “ransacked and rummaged through.”
Id. at ¶ 89. Thakkar returned home to find his
personal property “thrown throughout the house”
and called the police. Id. at ¶ 91. He reported
over $20, 000 in missing property to the police, including
“cash, financial documents, watches, electronics,
sports jerseys, and a memory card with Thakkar's family
photographs” as well as other personal effects.
Id. at ¶ 92. Thakkar's prescription
medication was also taken, forcing him to be without
medication for “several weeks, ” while food,
cleaning supplies, and toiletries had also been taken.
Id. at ¶ 93. The water and water heater had
also been turned off. Id. at ¶ 94. Thakkar
stayed with his parents for several days afterwards because
he did not know who had ransacked his home and feared for his
safety. Id. at ¶ 95.
days later, Thakkar found a “posting” outside his
home listing a phone number for Altisource, which he called
and was directed to Ocwen. Compl. ¶ 96. Ocwen confirmed
over the phone that it was responsible for the break-in and
that it was a mistake. Id. at ¶ 97. Ocwen
offered to teach Thakkar how to turn his utilities back on or
send Altisource to turn them on. Id. Thakkar opted
for the later, and about a week later Altisource sent a
vendor to turn on the water and water heater. Id. at
¶ 98. Thakkar discovered the water heater had been
broken and antifreeze had been poured into the pipes and
plumbing, necessitating several hundred dollars in repair
costs. Id. Thakkar demanded his damaged property be
repaired and the removed property be returned, but Ocwen and
Altisource both refused. Id. at ¶ 99.
though Thakkar had paid off the mortgage on the property in
December 2013 and Ocwen had released the mortgage with county
officials, Altisource (on behalf of Ocwen) issued a work
order to Laudan again for an inspection and vacancy
determination in January 2014. Compl. ¶ 105. Laudan
again identified the property as vacant, BaXol was again
assigned an identical roster of tasks, which it assigned to
Green Group. Id.. at ¶ 106-8. Green Group again
forcibly changed the locks, entered the property, inspected
it, and removed Thakkar's personal property. Id.
at ¶ 109. Thakkar again called the police, and reported
approximately $75, 000 in lost property, ranging from sports
memorabilia to furniture. Id. at ¶ 111. The
next day, Ocwen told Thakkar how to access the new keys and
told him to call Altisource. Id. at ¶ 113.
Altisource falsely denied having any record of the property.
Id. at ¶ 114. Thakkar demanded that Ocwen and
Altisource repair and return his property to no avail.
Id. at ¶ 115. Thakkar became so fearful for his
safety after the second break-in that he moved out and began
leasing the property to renters. Id. at ¶ 116.
At no point in the process did any party obtain Thakkar's
consent, initiate foreclosure proceedings, or obtain a court
order authorizing any of the actions taken. Id. at
sued Ocwen and Altisource in Illinois state court in 2015.
The defendants removed to federal court on the basis of
diversity jurisdiction and, following discovery, Thakkar
filed an amended complaint naming further defendants. The
amended complaint contains counts for violation of the
Illinois Consumer Fraud and Deceptive Business Practice Act,
negligence, trespass to property and chattels, conversion,
invasion of privacy, and civil conspiracy. Several defendants
filed third party complaints against Green Group for
contribution under the Illinois Joint Tortfeasor Contribution
Act. BaXol and Altisource Portfolio Solutions, S.A., have
moved to dismiss Thakkar's amended complaint. Green Group
has moved for a more definite statement as to the third party
complaints of Ocwen and Altisource Solutions, Inc.
the Court are three motions: BaXol's motion to dismiss
Thakkar's first amended complaint for failure to state a
claim, Altisource Portfolio Solutions' motion to quash
service or dismiss Thakkar's complaint for lack of
personal jurisdiction or failure to state a claim, and Green
Group's motion for a more definite statement as to the
third party complaints of Altisource Solutions, Inc. and
discussed above, the Court assumes the truth of the facts
alleged in Thakkar's complaint unless they are
contradicted by evidence (such as affidavits) submitted by
the defendant. Deb v. Sirva, Inc., 832 F.3d 800,
808-09 (7th Cir. 2016). To survive a motion to dismiss, a
plaintiff must “state a claim for relief that is
legally sound and plausible on its face.” Id.
at 810. This involves pleading enough facts that it raises
the prospect of a right to relief above the speculative
level. Smith v. Dart, 803 F.3d 304, 309 (7th Cir.
BaXol's Motion to Dismiss
has moved to dismiss the entirety of the complaint against
it. BaXol's primary argument (although it varies in
specifics from count to count) is that Thakkar cannot bring
his claims against BaXol because BaXol did not have any
relationship with Thakkar and never interacted with the
physical or real property at issue. Thakkar counters that
BaXol ordered its agent (Green Group) to do the actions
alleged in the complaint, rendering it liable for those
actions even if BaXol never physically ...