United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY UNITED STATES DISTRICT JUDGE.
Safeguard Properties, LLC has moved under Federal Rule
12(b)(6) to dismiss the claims of plaintiffs Laura Griffin,
Tony Parsons, and Sandy Kloster for failure to state a claim.
In considering the motion, the Court takes plaintiffs'
factual allegations as true and assesses whether they have
asserted a plausible basis for relief. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
purchased a home to use as her personal residence, using a
loan from HSBC Mortgage that was secured by a mortgage of the
home. HSBC assigned the loan and mortgage to Ally Bank.
Griffin later rented the home to Tony Parsons and Sandy
Kloster. However, Griffin fell behind on payments on the loan
and defaulted. Ally Bank then retained Safeguard. Griffin
alleges that Safeguard holds itself out as securing,
preserving, and managing at-risk and foreclosed properties
for mortgage lenders. She alleges that Safeguard regularly
used the mail and telephone to communicate with delinquent
borrowers and to inform its clients (the lenders) about the
condition of properties and the status of discussions with
posted a sign on Griffin's property stating, falsely,
that it was abandoned, and it placed a locking device on the
doors that prevented the plaintiffs from entering. The next
day, Griffin's attorneys sent Safeguard a cease and
desist letter stating that the property was, in fact,
occupied. Safeguard thereafter placed on a note on the front
door of the property in which it demanded that plaintiffs
remove their personal property and vacate because there was a
"new owner." It also terminated utility services.
Griffin's attorneys sent Safeguard another letter,
demanding that it cease its actions and restore utility
services. Plaintiffs allege that Safeguard continued to keep
them locked out and took and destroyed their property. Its
representatives also allegedly confronted Parsons and
intimidated him to get him to vacate. Parsons and Kloster
eventually vacated out of feat for their safety.
have sued Safeguard and Ally Bank, as well as others. They
assert claims against Safeguard under the Fair Debt
Collection Practices Act and the Illinois Consumer Fraud Act.
Safeguard has moved to dismiss both claims.
ICFA claim (Count 1)
alleges that plaintiffs do not meet the ICFA's definition
of "consumers" and thus cannot maintain a claim
under that statute. It relies on the ICFA's definition of
a consumer as a "person who purchases or contracts for
the purchase of merchandise nor for resale in the ordinary
course of his trade or business but for his use or that for a
member of his household." 815 ILCS 505/1(e). Safeguard
argues that none of the plaintiffs purchased any merchandise
(defined to include services, see id. 1(b)) from
2 of the ICFA declares unlawful "unfair . . . .
practices . . . in the conduct of any trade or
commerce," and section 1 in turn defines trade and
commerce to include "the sale or distribution of any
services." 815 ILCS 505/2, 1(f). Griffin purchased a
mortgage loan for personal and not business use, and Parsons
and Kloster contracted for residential property for their
personal use. They did not purchase these services from
Safeguard, but the statute, including the definition of
"consumer," does not "require that privity
exist between the purchaser and the provider" of the
services. Elder v. Coronet Ins. Co., 201 Ill.App.3d
733, 750, 558 N.E.2d 1312, 1321 (1990). Thus they meet the
statutory definition of a consumer.
provision of the ICFA that authorizes suits for damages
broadly permits "[a]ny person" who is damaged due
to a violation of section by another person to file suit.
See Id. 10a(a). A claim may proceed under the ICFA
if it satisfies the "consumer nexus test," which
requires a court to consider whether the alleged conduct
involves trade practices addressed to the market generally or
otherwise implicates consumer protection concerns. See,
e.g., Bank One Milwaukee v. Sanchez, 337 Ill.App.3d 319,
323, 783 N.E.3d 217, 221 (2003); Brody v. Finch Univ. of
Health Sciences/The Chicago Med. Sch., 298 Ill.App.3d
146, 159, 698 N.E.2d 247, 268-69 (1998). The latter is true
here, as Judge Joan Lefkow ruled in Mighty v. Safeguard
Properties Management, LLC, N0. 16 C 10815, 2018 WL
3922130, at *4 (N.D. Ill. Sept. 7, 2017)-at least the Court
cannot say otherwise at this stage of the case.
FDCPA claim (count 10)
contends that plaintiffs' FDCPA claim is deficient
because they do not adequately allege that Safeguard is a
debt collector within the meaning of the statute. The Court
disagrees. The statute defines a debt collector as including
anyone who regularly collects or attempts to collect consumer
debts, either directly or indirectly. See 15 U.S.C.
§ 1692a(6). And for purposes of claims under 15 U.S.C.
§ 1692f(6)-which is at least partly the basis for
plaintiffs' FDCPA claim against Safeguard-a debt
collector also includes anyone who uses the mail or
instrumentalities of interstate commerce in a business the
principal purpose of which is enforcement of security
interests. Id. Plaintiffs' allegations regarding
the nature of Safeguard's business and its conduct at
issue in this case are sufficient to bring it within the
statutory definition of a debt collector. See, e.g.,
Fressola v. Safeguard Props., LLC, No. 16 C 11005, slip