United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
HONORABLE EDMOND E. CHANG UNITED STATES DISTRICT JUDGE
Rodriguez filed a Fair Debt Collection Practices Act (FDCPA)
case against Codilis & Associates, P.C. and BSI Financial
Services. Both Defendants move to dismiss the
Amended Complaint, arguing that Rodriguez lacks standing and
fails to state a claim under the FDCPA. See R. 20,
Codilis Mot. to Dismiss ¶¶ 4-5; R. 28, BSI Mot. to
Dismiss at 1. For the reasons explained below, the
Defendants' motions to dismiss are denied.
purposes of this motion, the Court accepts as true the
allegations in the Amended Complaint. Erickson v.
Pardus, 551 U.S. 89, 94 (2007). In addition to the
allegations in the pleading itself, documents attached to a
complaint are considered part of the complaint. Fed.R.Civ.P.
10(c). Rodriguez brings a claim under the FDCPA for actions
taken by Codilis and BSI in their attempt to foreclose on a
home mortgage taken out by Rodriguez. R. 19, Am. Compl.
¶¶ 3-4. After Rodriguez bought her home, the
mortgage was transferred to a trustee servicer, an entity
known as Christiana Trust. Id. ¶ 12. The loan
went into default, and BSI began servicing the loan on behalf
of Christiana Trust. Id. ¶ 14. BSI then
assigned the debt to Codilis (which is a law firm) to
collect, with Codilis allegedly acting as a representative of
BSI. Id. ¶¶ 15-19. Sometime after the loan
default, Christiana Trust, through BSI and Codilis, filed a
motion for default and foreclosure (for convenience's
sake, “the Motion”) in the Circuit Court of Cook
County to try to collect the debt. Id. ¶¶
filing the Motion, the Defendants included several documents
to support the foreclosure judgment requested from the state
court, including: (1) an affidavit from the servicer's
signing officer attesting to the amounts owed and expenses
incurred based on her review of BSI's records (Affidavit
of Amounts Due and Owing); (2) a Payoff Statement letter that
BSI purportedly sent to Rodriguez describing the total amount
due (Payoff Statement); and (3) a Codilis attorney
certificate outlining the various attorney's fees and
costs expended in the litigation (Certificate of Prove-up of
Attorney Fees and Costs). R. 19-1, Am. Compl. Exh. 1.2
Rodriguez alleges that various conflicting representations
that the Defendants made in the Motion violated the FDCPA.
the servicer Affidavit showed that the “Total Amount
Due through 4/14/2016” was $198, 765.76, while the
Payoff Statement stated that the “Total Amount to Pay
Loan in Full on 4/14/16” was $201, 781.65. Am. Compl.
¶¶ 23, 26; Affidavit at 6-8; Payoff Statement at
9-11. Rodriguez claims the Certificate
introduced another inconsistency in the amounts owed, because
it claimed that the total court costs Codilis expended were
$3, 246.00. Am. Compl. ¶ 29; Certificate at 33-34. Those
costs described a total of $1, 960 listed as three different
types of attorney's fees, including “Foreclosure
Attorney Fees, ” “Amended Complaint Attorney
Fees, ” and “Case Management Attorney
Fees.” Am. Compl. ¶¶ 30-31; Certificate at
33-34. In contrast, the Affidavit contains a line item for
“Prior Attorney Fees, ”-but only for $765.00. Am.
Compl. ¶ 25; Affidavit at 7. There were also additional
line items for late charges on the Affidavit and the Payoff
Statement that did not match one another. See
Affidavit at 6-8; Payoff Statement at 9-11. The Affidavit
stated that the “Late Charges Accrued Prior to the
Acceleration of the of the subject loan” were $268.84,
Affidavit at 7, while the Payoff Statement stated that the
“Unpaid Late Charge” was $873.73 with
“Unpaid Fees” totaling $3, 294.68. Payoff
Statement at 9.
the Payoff Statement listed March 1, 2015 as the due
date for the next payment on the loan-but the letter itself
was dated March 16, 2016. Am. Compl. ¶ 27. And
though the bottom of the Payoff Statement explains,
“This is an attempt to collect a debt, ” Payoff
Statement at 11, Rodriguez alleges that BSI failed to
identify itself as a debt collector. Am. Compl. ¶ 27.
on these inconsistencies, Rodriguez alleges that the
Defendants' communications exposed her to a substantial
risk of harm. Am. Compl. ¶ 10. Throughout the Amended
Complaint, Rodriguez alleges that the conflicts would have
confused an unsophisticated consumer. See Am. Compl.
¶¶ 34, 36, 37. And Rodriguez also alleges that
receiving the false and conflicting information distressed,
confused, and irritated her. Am. Compl. ¶ 55.
Standard of Review
Federal Rule of Civil Procedure 8(a)(2), a complaint
generally need only include “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). This short and plain
statement must “give the defendant fair notice of what
the … claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (cleaned up). The Seventh Circuit has explained
that this rule “reflects a liberal notice pleading
regime, which is intended to ‘focus litigation on the
merits of a claim' rather than on technicalities that
might keep plaintiffs out of court.” Brooks v.
Ross, 578 F.3d 574, 580 (7th Cir. 2009) (quoting
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514
motion under Rule 12(b)(6) challenges the sufficiency of the
complaint to state a claim upon which relief may be
granted.” Hallinan v. Fraternal Order of
Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th
Cir. 2009). “[A] complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). These allegations
“must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555.
The allegations that are entitled to the assumption of truth
are those that are factual, rather than mere legal
conclusions. Iqbal, 556 U.S. at 678-79.
Injury in Fact
first argues that Rodriguez lacks standing because she fails
to articulate a concrete injury. Codilis Mot. to Dismiss
¶ 5. To have standing, plaintiffs “must have (1)
suffered an injury in fact, (2) that is fairly traceable to
the challenged conduct of the defendant, and (3) that is
likely to be redressed by a favorable judicial
decision.” Diedrich v. Ocwen Loan Servicing,
LLC, 839 F.3d 583, 588 (7th Cir. 2016) (quoting
Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547
(2016)). Mere procedural violations, without the concrete
harm required by Article III, do not satisfy the requirements
of Article III. See Spokeo, 136 U.S. at 1549. For an
injury to be concrete, it “must be ‘de
facto'; that is, it must actually exist.”
Meyers v. Nicolet Restaurant of De Pere, LLC, 843
F.3d 724, 727 (7th Cir. ...