United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
D. Leinenweber, United States District Judge.
CitiMortgage, Inc., moves to dismiss Plaintiff Howard Ray,
Jr.'s, Complaint (Dkt. No. 1). For the reasons stated
herein, Defendant's Motion to Dismiss (Dkt. No. 13) is
Ray and Defendant CitiMortgage (“Citi”) entered
into a written agreement (the “Contract”) in May
2008 in which Citi agreed to advance funds to Ray on credit
for the purchase of a building. (Compl. ¶ 7, Dkt. No.
1.) Ray alleges that in October of 2012 he contacted Citi to
request a payment deferment and that Citi's agents
encouraged him to miss payments so that he could qualify for
a loan modification program. (Id. at ¶ 8.)
Plaintiff complied because, he alleges, he “did not
have any choice.” (Id.) Ray alleges that Citi
employees discouraged him from applying for loss mitigation
or deferment programs. Citi reported these missed payments to
credit agencies, damaging Plaintiff's credit and, he
alleges, resulting in missed business opportunities, lost
income, and “other consequential damages in excess of
$800, 000.” (Id. at ¶ 11.) Plaintiff
claims that Citi breached the Contract by misleading him
about the impact of missing payments and “failing to
consider Plaintiff's request for a deferment as a request
for foreclosure relief.” (Id. at ¶ 12.)
Plaintiff also alleges that Citi sent inaccurate consumer
information to credit reporting companies and failed to
investigate Plaintiff's credit report disputes.
brings claims against Citi for breach of contract and for
violation of the Fair Credit Reporting Act
(“FCRA”), 15 U.S.C. § 1681, et seq.
In response, Citi moves to dismiss both of Plaintiff's
claims under Federal Rule of Procedure 12(b)(6).
12(b)(6) motion to dismiss challenges the sufficiency of the
complaint. Christensen v. Cty. of Boone, 483 F.3d
454, 457 (7th Cir. 2007). To overcome a motion to dismiss
under Rule 12(b)(6), a complaint must “state a claim to
relief that is plausible on its face.” Adams v.
City of Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). A claim has facial plausibility “when the
pleaded factual content allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at
570). When considering a 12(b)(6) motion to dismiss, the
Court must “accept as true all well-pleaded facts
alleged, and draw all possible inferences in [the
plaintiff's] favor.” Tamayo v.
Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).
Breach of Contract
plead a claim for breach of contract under Illinois law, a
plaintiff must establish: “(1) offer and acceptance,
(2) consideration, (3) definite and certain terms, (4)
performance by the plaintiff of all required conditions, (5)
breach, and (6) damages.” Association Ben.
Services, Inc. v. Caremark RX, Inc., 493 F.3d 841, 849
(7th Cir. 2007). In addition, if a claim is based on a
written contract, that contract must be attached to the
pleading, “unless the pleader attaches to his or her
pleading an affidavit stating facts showing that the
instrument is not accessible to him or her.” 735 ILCS
5/2-606. The statute of limitations on a written contract is
ten years. 735 ILCS 5/13-206. The statute of limitations on
an unwritten contract is five years. 735 ILCS5/13-205.
Illinois courts “follow a strict interpretation of the
meaning of a written agreement for purposes of the statute of
limitations, ” with a contract only deemed
“written if parties are identified and all the
essential terms are in writing and ascertainable from the
instrument itself.” Portfolio Acquisitions, LLC v.
Feltman, 909 N.E.2d 876, 880 (Ill.App.Ct. 2009). Thus,
if these requirements are not met, the contract is assumed to
not attach the Contract to his Complaint and does not explain
whether the alleged terms that Citi breached were terms of
the Contract or part of some other, unwritten contract that
allegedly exists between Ray and Citi. Because Ray did not
attach the contract or otherwise meet the pleading standards
required by Illinois law to establish the existence of a
written agreement, the Court must assume that the contract
was unwritten. Ramirez v. Palisades Collection, LLC,
250 F.R.D. 366, 368 (N.D. Ill. 2008). Ray alleges in his
Complaint that the breach occurred in October 2012 and filed
this lawsuit in August 2019. For an unwritten contract, the
deadline to file a breach of contract claim was in 2017.
Therefore, the Complaint on its face states a claim that is
time-barred. Accordingly, the breach of contract claim must
be dismissed without prejudice.
Fair Credit Reporting Act
also brings a claim under the FCRA, alleging that Citi
willfully provided inaccurate information about his loan to
consumer reporting agencies. The FCRA requires that any suit
be brought the earlier of two years after the date the
plaintiff discovered the alleged violation or five years
after the date of the violation that is the basis of the
claim. 15 U.S.C. § 1681p. Ray claims he did not discover
the violation until January 2019. However, he also alleges
that he began missing payments on or around October 2012 and
that Citi began reporting those missed payments around that
date. This means that under the statute, the latest he could
bring his FCRA claim was October 2017. Accordingly, the FCRA
claim must be dismissed without prejudice.