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Mighty v. Safeguard Properties Management, LLC

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

September 7, 2017

CARLENE MIGHTY, Independent Administrator of THE ESTATE OF SHIRLEY N. EDWARDS, Deceased and CARLENE MIGHTY, Individually, Plaintiffs,


          U.S. Joan H. Lefkow District Judge.

         Carlene Mighty, individually (Mighty), and in her capacity as independent administrator of the estate of Shirley N. Edwards (Estate), deceased, brought suit against Safeguard Properties Management, LLC (Safeguard), a Delaware corporation, asserting claims for trespass to real property (count I), conversion of personal property (count II), consumer fraud (count III), and fraud (count IV). (Dkt. 15.) Safeguard has moved to dismiss counts III and IV under Federal Rule of Civil Procedure 12(b)(6). (Dkt. 18.) For the reasons stated below, the motion is granted in part and denied in part.[1]


         Shirley Edwards owned real estate located at 58 Clover Leaf Rd. in Matteson, Illinois. (Dkt. 15 ¶ 5.) Edwards owned the property from 1990 until her death on March 19, 2013, whereupon the Estate became legal titleholder. (Id. ¶¶ 6-8.) From 1990 until October 2013, Mighty, Edwards's heir, resided at the property with Edwards's permission. (Id. ¶ 9.)

         On or about March 24, 2005, Edwards executed a refinanced mortgage and security agreement for the property with Beneficial Illinois, Inc., d/b/a Beneficial Mortgage Co. of Illinois (Beneficial). (Id. ¶ 11.) Beneficial no longer exists. (Id.) The mortgage and security agreement were subject to a mortgage life insurance policy that, in the event Edwards died before the term of the mortgage expired, provided full payment to Beneficial for any outstanding debt on the mortgage. (Id. ¶ 12.) Edwards paid her monthly mortgage and life insurance premiums up to and including March 2013. (Id. ¶ 13.) Mighty informed Beneficial upon Edwards' death of her passing and of the life insurance policy. (Id. ¶ 14.) Beneficial took no steps to obtain the insurance benefit or cancel the mortgage. (Id. ¶ 15.)

         On notice of Edwards' death, Beneficial retained Safeguard to manage the Property and protect Beneficial's interest in it. (Id. ¶ 16.) Safeguard, beginning on or about October 1, 2013, by notice attached to the door of the property, by notices mailed to Mighty at the property, and by numerous phone calls, made several representations to Mighty. (Id. ¶ 52.) Specifically, Safeguard represented that (1) the property was vacant, (2) it had the right to change the locks on the property, (3) it had the right to deny access to Mighty, (4) it had the right to enter the property, (5) it had the right to remove Mighty's personal property, and (6) Mighty had no rights in the property. (Id.)

         On or about October 7, 2013, employees of Safeguard entered the property, rummaged through Mighty's personal property, stole numerous items including televisions, computers, and furniture, and changed the locks. (Id. ¶ 19.) Mighty maintains that on that date there were obvious signs and indications that the property was not abandoned, including recently improved portions of the property, connected utilities, food in the refrigerator, and other evidence of recent and current human occupancy. (Id. ¶ 25.) The same day, Safeguard again informed Mighty that she was not entitled to reside at the property and that the property had been deemed vacant, authorizing Safeguard to occupy the property. (Id. ¶ 20.) Mighty notified Safeguard that it had no rights to enter onto and into the property and demanded that Safeguard return to the property, remove its locks, return her personal property, and allow her entrance. (Id. ¶ 27.) Safeguard refused Mighty's requests. (Id. ¶ 28.)

         As a result of Safeguard's actions, Mighty was forced out of her home, became homeless for approximately two years, lost her personal property, and suffered severe emotional distress. (Id. ¶ 29, 59.)

         In 2013, before this lawsuit was filed, the Illinois Attorney General brought an action against Safeguard.[3] (Id. ¶ 46.) The Attorney General alleged eleven unfair or deceptive acts by Safeguard, relying on more than 200 complaints from Illinois consumers related to Safeguard that complained of the same acts that Mighty alleges in this case. (Id. ¶ 46-47.)


         A motion to dismiss under Rule 12(b)(6) challenges a complaint for failure to state a claim on which relief may be granted. In ruling on such a motion, the court accepts as true all well-pleaded facts in the plaintiff's complaint and draws all reasonable inferences from those facts in the plaintiff's favor. Active Disposal, 635 F.3d at 886 (citation omitted). To survive a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a claim's basis but must also establish that the requested relief is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The allegations in the complaint must be “enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. At the same time, the plaintiff need not plead legal theories; it is the facts that count. Hatmaker v. Mem'l Med. Ctr., 619 F.3d 741, 743 (7th Cir. 2010); see also Johnson v. City of Shelby, 574 U.S. ___, 135 S.Ct. 346, 346, 190 L.Ed.2d 309 (2014) (per curiam) (“Federal pleading rules call for ‘a short and plain statement of the claim showing the pleader is entitled to relief'; they do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.” (citations omitted)).


         I. Consumer Fraud (Count III)

         To state a claim under the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA), 815 Ill. Comp. Stat. 505/1, et seq., a plaintiff must allege five elements: “(1) a deceptive act or unfair practice occurred, (2) the defendant intended for the plaintiff to rely on the deception, (3) the deception occurred in the course of conduct involving trade or commerce, (4) the plaintiff sustained actual damages, and (5) such damages were proximately caused by the defendant's deception.” Dubey v. Pub. Storage, Inc., 918 N.E.2d 265, 277, 395 Ill.App.3d 342, 335 Ill.Dec. 181 (2009) (citing White v. DaimlerChrysler Corp., 856 N.E.2d 542, 546, 368 Ill.App.3d 278, 305 Ill.Dec. 737 ...

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