United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
B. Gottschall United States District Judge.
Placek brought this action under the Fair Debt Collection
Practices Act “FDCPA”, 15 U.S.C. § 1692
et seq., against Fidelity National Law Group
(“Fidelity”), U.S. Bank, N.A. (“U.S.
Bank”), and Select Portfolio Servicing, Inc.
(“SPS”). SPS and U.S. Bank answered her amended
complaint (“AC”, ECF No. 9) on July 3, 2017. ECF
Nos. 23, 24. Fidelity filed a motion to stay this action,
contending that the court should abstain from hearing this
case under Colorado River Water Conservation District v.
United States, 424 U.S. 800 (1976), because a parallel
proceeding is pending in state court. For the following
reasons, the court concludes that a parallel proceeding is
pending but finds that the ten factors the court must
consider under Colorado River do not, on balance,
favor abstention now.
alleges that she is the victim of identity theft and mortgage
fraud. In her amended complaint she pleads that an
acquaintance impersonated her while she was out of the
country in 2007. See ECF No. 9 ¶¶ 16-22.
The imposter allegedly forged Placek's signature and
obtained a $720, 000 loan in her name secured by a mortgage
on her home in Morton Grove, Illinois. See Id.
Placek first learned of the loan, which was structured as a
refinancing transaction, in October 2008 when she received a
notice of underpayment, id. ¶ 25, and she has
since maintained that the loan was the result of fraud.
March 5, 2009, one of U.S. Bank's predecessors brought a
foreclosure action against Placek (the “state court
action”). See Id. ¶ 39; Compl., Bank
of Am., N.A. v. Placek, No. 09 CH 10076, ECF No. 9-4 Ex.
D. The complaint was amended to assert a foreclosure count
and a count for an equitable lien on the property. AC ¶
43. The state court dismissed both counts with prejudice in
an order entered July 22, 2013. Id. ¶ 47;
see also Dismissal Order, ECF No. 9-1 Ex. A. U.S.
Bank appealed, and the Illinois Court of Appeals affirmed the
dismissal order in part and reversed it in part (the
“appellate order”). AC ¶¶ 50-51; ECF
No. 9-2 Ex. B, 2015 IL App (1st) 133696-U. The court of
appeals held that U.S. Bank forfeited any challenge to the
dismissal of the foreclosure count by failing to brief the
issue. 2015 IL App (1st) 133696-U ¶ 16.
FDCPA claims here stem ultimately from that ruling. She
alleges that the decision of the Appellate Court became final
on June 5, 2015, AC ¶ 53, and that “the claim of
foreclosure was dismissed with prejudice” and
“the holder of the Fraudulent Mortgage no longer had a
valid or enforceable legal claim against Plaintiff for
payment on the related note or mortgage” as a result.
AC ¶¶ 54, 55.
generally contends that defendants violated the FDCPA by
continuing to litigate the mortgage's validity on remand.
See AC ¶¶ 103, 110, 117. Fidelity
substituted as U.S. Bank's counsel on remand and filed a
Second Amended Complaint (“SAC”) on March 30,
2016, and a Third Amended Complaint (“TAC”) on
November 14, 2016. AC ¶¶ 56, 58, 59, 77; see
also SAC, ECF No. 9-3 Ex. C. Both amended complaints
incorporated the original state-court complaint and pleaded a
foreclosure count and a count seeking a declaratory judgment
that the mortgage was valid. See AC ¶¶ 60,
63, 78; SAC ¶¶ 12, 28. Placek names SPS, which she
alleges U.S. Bank hired to collect the disputed mortgage
loan, AC ¶ 91, as a defendant here based on a mortgage
statement dated February 15, 2017. See AC
¶¶ 85, 87, 89, 117; Mortgage Statement, ECF No. 9-5
commenced this FDCPA suit in this court on March 29, 2017.
ECF No. 1. While the instant motion was being briefed, the
state trial court entered an order disposing of all claims
and defenses in the case. ECF No. 29-1 Ex. A. The parties
have appealed, and the appeal remains pending as far as this
court can tell. Reply 1, ECF No. 33, Ex. A.
“the pendency of an action in the state court is no bar
to proceedings concerning the same matter in the Federal
court.” Colorado River, 424 U.S. at 817
(quoting McClellan v. Carland, 217 U.S. 268, 282
(1910) (other citation omitted). But Colorado River
and its progeny teach that “federal courts in some
exceptional cases . . . [may] defer to a concurrent
state-court case as a matter of ‘wise judicial
administration, giving regard to conservation of judicial
resources and comprehensive disposition of
litigation.'” Huon v. Johnson & Bell,
Ltd., 657 F.3d 641, 645 (7th Cir. 2011) (quoting
Colorado River, 424 U.S. at 817); see also Freed
v. J.P. Morgan Chase Bank, N.A., 756 F.3d 1013, 1018
(7th Cir. 2014) (citations omitted) (stating that conserving
resources and preventing inconsistent results is the
“primary purpose” of the Colorado River
whether abstention under Colorado River is
appropriate involves a two-step inquiry. Deb v. SIRVA,
Inc., 832 F.3d 800, 814-15 (7th Cir. 2016) (quoting
Adkins v. VIM Recycling, Inc., 644 F.3d 483, 498
(7th Cir. 2011). The court first determines whether the
concurrent state and federal actions are “actually
parallel.” Id. at 814 (quoting
Adkins, 644 F.3d at 498); Tyrer v. City of S.
Beloit, 456 F.3d 744, 751 (7th Cir. 2006). If the two
actions are parallel, the court assesses whether
“exceptional circumstances” justify abstention.
Adkins, 644 F.3d at 498.
The Suits Are Parallel
decide whether two suits are parallel, the court considers
whether “substantially the same parties are
contemporaneously litigating substantially the same
issues” in another forum, Deb, 832 F.3d at
814, 815 (quoting Adkins, 644 F.3d at 498-99), and
if “both cases would be resolved by examining largely
the same evidence.” Huon, 657 F.3d at 647.
“Any doubt” about whether the two suits are
parallel “should be resolved in favor of exercising
jurisdiction.” Deb, 832 F.3d at 815 (quoting
Adkins, 644 F.3d at 498-99).
federal and state suits here involve substantially the same
parties with the exception of two defendants named only in
the foreclosure action. Placek and U.S. Bank are parties in
both cases. Fidelity and SPS have been made defendants in
federal court only, but Placek bases her claims against them
on actions they allegedly took as representatives of U.S.
Bank, AC ¶¶ 56, 58, 91. See, e.g.,
Nieves v. Bank of Am., N.A., No. 14-CV-2300, 2015 WL
753977, at *2, 4 (N.D. Ill. Feb. 20, 2015) (finding federal
FDCPA action paralleled bank's foreclosure suit even
though the loan servicer was not a party in state court);
Smith v. Bank of Am., N.A., No. 14 C 1041, 2014 WL
3938547, at *3 (N.D. Ill. Aug. 12, 2014) (holding federal
FDCPA and state foreclosure action involved substantially
similar parties because, “[a]lthough [the law firm] is
[the bank]'s counsel-not a party-in the state court case,
it is a defendant here only because of acts in furtherance of
its representation of [the bank pursuing foreclosure in state
court]”). Three defendants in the foreclosure action
are not parties here: Krzysztof Placek, Irena Patyk, and
Irena Richardson. Placek acknowledges that the last two may
well be the same person going by different names. Resp. to
Mot. to Stay 4 n.2, ECF No. 29.
symmetry “is unnecessary.” Deb, 832 F.3d
at 814 (quoting Adkins, 644 F.3d at 499). To
determine whether the asymmetries here defeat parallelism,
the court must turn to whether substantially the same legal
and factual issues are being litigated ...