Frazier v. US Bank National Association et al

Filing 92

WRITTEN Opinion entered by the Honorable Amy J. St. Eve on 4/4/2013: The Court grants in part and denies in part Applebrook Realty, Inc.'s Motion to Dismiss and Motion for a More Definite Statement pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(e) and Motion to Strike under Federal Rule of Civil Procedure 12(f) 55 . The deadline for the close of personal jurisdiction discovery is 4/26/13 and for fact discovery is 9/03/13. [For further details, see minute order.] Mailed notice(kef, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Amy J. St. Eve

CASE NUMBER

11 C 8775

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

4/4/2013

Frazier vs. U.S. Bank National Association et al

DOCKET ENTRY TEXT

The Court grants in part and denies in part Applebrook Realty, Inc.'s Motion to Dismiss and Motion for a
More Definite Statement pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(e) and Motion to
Strike under Federal Rule of Civil Procedure 12(f) [55]. The deadline for the close of personal jurisdiction
discovery is 4/26/13 and for fact discovery 9/03/13.

O[ For further details see text below.]

Notices mailed by Judicial staff.

STATEMENT
Before the Court is Defendant Applebrook Realty, Inc.’s (“Applebrook”) Motion to Dismiss and
Motion for a More Definite Statement pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(e) and
Motion to Strike under Federal Rule of Civil Procedure 12(f). For the following reasons, the Court grants in
part and denies in part the Motions.
BACKGROUND
Plaintiff Samuel Frazier filed this putative class action suit against Defendants US Bank National
Association as “Trustee for the C-Bass Mortgage Loan Asset-Backed Certificates, Series 2006-CB1 (“US
Bank”), Ocwen Financial Corporation, LP (“Ocwen”), Litton Loan Servicing, LP, (“Litton”), Applebrook
Realty, Inc., and Does 1-20, alleging violations of the federal Fair Debt Collection Practices Act (“FDCPA”),
15 U.S.C. § 1692 et seq., and the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”),
815 ILCS 505/2 et seq., as well as common law conversion and trespass to land and chattels claims. (R.1,
Compl. ¶¶ 67-115.) Plaintiff further seeks injunctive relief. (Id. ¶ 3.) Applebrook moves to dismiss
Plaintiff’s ICFA and FDCPA claims pursuant to Rule of Civil Procedure 12(b)(6), to strike the request for
attorney’s fees pursuant to Federal Rule of Civil Procedure 12(c), and for a more definite statement under
Federal Rule of Civil Procedure 12(e). The Court assumes familiarity with the factual background for the
case as set forth in its Opinion granting in part and denying in part US Bank’s, Ocwen’s, and Litton’s Motion
to Dismiss (the“Joint Motion to Dismiss”). (R. 90.)
Courtroom Deputy
Initials:

11C8775 Frazier vs. U.S. Bank National Association et al

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LEGAL STANDARDS
I.

Federal Rule of Civil Procedure 12(b)(6)

“A 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). Under Rule 8(a)(2), a complaint must include “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The short and plain statement under Rule 8(a)(2) must “give
the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (citation omitted). Under the federal
notice pleading standards, a plaintiff’s “factual allegations must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555. Put differently, 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, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Indep. Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d
930, 934-35 (7th Cir. 2012) (citing Iqbal, 556 U.S. at 678 (internal quotation marks omitted)). “The complaint
‘must actually suggest that the plaintiff has a right to relief, by providing allegations that raise a right to relief
above the speculative level.’” Id. at 935 (citing Windy City Metal Fabricators & Supply, Inc. v. CIT Tech. Fin.
Servs., 536 F.3d 663,668 (7th Cir. 2008)). “[A] plaintiff’s claim need not be probable, only plausible: ‘a
well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable,
and that a recovery is very remote and unlikely.’” Id. (citing Twombly, 550 U.S. at 556 (internal quotation
omitted)). “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer
evidence to support the claims.” AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2007) (internal
quotation and citation omitted). “To meet this plausibility standard, the complaint must supply ‘enough fact[s] to
raise a reasonable expectation that discovery will reveal evidence’ supporting the plaintiff’s allegations.” Id.
(citing Twombly, 550 U.S. at 556). “In evaluating the sufficiency of the complaint, [courts] view it in the light
most favorable to the plaintiff, taking as true all well-pleaded factual allegations and making all possible
inferences from the allegations in the plaintiff’s favor.” See AnchorBank, 649 F.3d at 614.
II.

Federal Rule of Civil Procedure 12(e)

Under Federal Rule of Civil Procedure 12(e), a party may move for a more definite statement of a
pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot
reasonably prepare a response. Fed. R. Civ. P. 12(e). Rule 12(e) motions are appropriate when a “pleading fails
to specify the allegations in a manner that provides sufficient notice.” Swierkiewicz v. Sorema N.A., 534 U.S.
506, 513-14, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002). The rule “is designed to strike at unintelligibility rather than
want of detail.” Gardunio v. Town of Cicero, 674 F. Supp. 2d 976, 992 (N.D. Ill. 2009). Accordingly, motions
for a more definite statement are generally disfavored. Metz v. Joe Rizza Imports, Inc., 700 F. Supp. 2d 983, 992
(N.D. Ill. 2010).
III.

Federal Rule of Civil Procedure 12(f)

“Rule 12(f) provides that a district court ‘may strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.’” Delta Consulting Grp., Inc. v. R. Randle Const., Inc.,
554 F.3d 1133, 1141 (7th Cir. 2009) (quoting Fed. R. Civ. P. 12(f)). Motions to strike are appropriate if they
serve to expedite litigation. See Heller Fin., Inc. v. Midwhey Powder, 883 F.2d 1286, 1294 (7th Cir. 1989); see
also Talbot v. Robert Matthews Distrib. Co., 961 F.2d 654, 664 (7th Cir. 1992) (allegations may be stricken if
matter bears no possible relation to controversy). District courts have considerable discretion to strike allegations
under Rule 12(f). See Delta, 554 F.3d at 1141-42.
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ANALYSIS
I.

Motion for a More Definite Statement

Applebrook argues that Plaintiff’s complaint improperly lumps together Defendants and fails to
distinguish between those actions committed by Defendants and their agents. The issue here, however, is whether
under Federal Rule of Civil Procedure 8(a) Plaintiff has set forth sufficient facts to provide fair notice of his
claims such that Applebrook may frame a responsive pleading. Here, Plaintiff provides a specific address for the
property at issue and alleges specific dates and time periods in which Defendants unlawfully dispossessed and
locked Plaintiff and his family from his home, performed property services, and showed Plaintiff’s home to
potential real estate investors. (Compl. ¶¶ 34-43.) With respect to the longer time period of September 2009 to
July/August 2010, Plaintiff further alleges that Defendants and their agents “removed, damaged, and/or destroyed
Plaintiff’s personal property and fixtures at Plaintiff’s premises” and threw Plaintiff’s property into the street.
(Id. ¶¶ 45, 46.) Moreover, Plaintiff has alleged some facts about each Defendant’s type of business and role in
the alleged conduct. (Id. ¶¶ 5-8; 24-25.) Specifically, Plaintiff alleges that Applebrook “provide[s] lender field
services” for lenders like US Bank, and that US Bank, Litton, and Ocwen order such field services when a
borrower is delinquent or in default to secure the property. (Id. ¶¶ 24-25.) Therefore, Plaintiff’s allegations are
not so “vague or ambiguous that Defendants cannot reasonably frame a responsive pleading.” Fed. R. Civ. P.
12(3); Criddell v. Transunion LLC, No. 09 C 6235, 2010 WL 1693093, at *2 (N.D. Ill. Apr. 27, 2010) (granting
motion for more definite statement of FDCPA allegations lacking “time or place” details); see also Lemp v.
Ocwen Loan Serv., LLC, No. 08 C 35, 2008 WL 2276935, at *2 (D. Neb. May 30, 2008) (“While the complaint
does not specifically allege which defendant committed which particular acts in violation of the FDCPA,
additional detail and specificity can be obtained in discovery.”) Thus, the Court denies Applebrook’s Motion for
a More Definite Statement.
II.

Motion to Dismiss for Failure to State a Claim

In its Rule 12(b)(6) Motion, Applebrook challenges Plaintiff’s ICFA claim in Count V and request for
declaratory and injunctive relief in Count VI.1 The Court will consider each argument in turn.
A.

Count V: ICFA Claim

Applebrook argues that Plaintiff fails to state a claim under the ICFA for two reasons: (1) Plaintiff does
not satisfy the requirement to plead its allegations with particularity under Federal Rule of Civil Procedure 9(b)
(“Rule 9(b)”); and (2) Plaintiff fails to allege a nexus between Applebrook’s alleged conduct and consumer
protection concerns. (Def.’s Mem. 7.)
Applebrook’s reliance on Rule 9(b) is misplaced. When a plaintiff alleges unfair conduct as opposed to
fraud as the basis for an ICFA claim, the pleading standards of Rule 8, and not 9(b) govern. Pirelli Armstrong
Tire Corp. Retiree Med. Benefits Trust v. Walgreen Co., 631 F.3d 436, 446 (7th Cir. 2011) (“When a claim
alleges an unfair practice, the relaxed pleading standards of Rule 8 do indeed govern.”); Windy City Metal
Fabricators & Supply, Inc. v. CIT Tech. Fin. Servs., Inc., 536 F.3d 663, 670 (7th Cir. 2008). Here, Plaintiff
asserts that he “brings a claim of unfair conduct or practice under the ICFA.” (Pl.’s Mem. 8.) Thus, the standard
in Rule 8 applies.

1

Because the Court has already addressed Applebrook’s arguments against Plaintiff’s
FDCPA claim and request for a declaratory judgment in its Order granting in part and denying in
part the Joint Motion to Dismiss, the Court denies as moot the remainder of Applebrook’s
Motion with respect to Plaintiff’s FDCPA claim.
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Next, Applebrook argues that Plaintiff has failed to sufficiently allege that he is a “consumer” within the
meaning of the ICFA. Specifically, Applebrook contends that Plaintiff’s claim fails because Plaintiff is not a
direct “consumer” of Applebrook’s services or similar to other Applebrook consumers, and in the alternative, that
Plaintiff has failed to plead a “consumer nexus” with the alleged conduct. (Def.’s Mem. 8.)
An ICFA claim requires a showing of the following: “(1) a deceptive or unfair act or practice by the
defendant; (2) the defendant’s intent that the plaintiff rely on the deceptive or unfair practice; and (3) the unfair or
deceptive practice occurred during a course of conduct involving trade or commerce.” Wigod, 673 F.3d at 574
(citing Siegel v. Shell Oil Co., 612 F.3d 932, 934 (7th Cir. 2010)). The ICFA defines a consumer as “any person
who purchases or contracts for the purchase of merchandise not for resale in the ordinary course of his trade or
business but for his use or that of a member of his household.” ILCS 815 § 505/1(e). Courts should construe the
ICFA “liberally . . . to effect its purposes.” Avery v. State Farm Mut. Auto. Ins. Co., 216 Ill. 2d 100, 186-87, 835
N.E.2d 801, 853 (2005) (internal quotations omitted).
Applebrook’s contention that Plaintiff must allege that he directly consumes Applebrook’s services to
state an ICFA claim is unpersuasive. In the context of an ICFA claim based upon a breach of contract between
two businesses, courts have rejected this argument. Lake County Grading Co. of Libertyville, Inc. v. Advance
Mech. Contractors, Inc., 275 Ill. App. 3d 452, 458, 654 N.E.2d 1109, 1115 (Ill. App. Ct. 1995) (“Rather, as
Downers Grove recognized, there are some cases where the Act applies despite the fact that the parties are not
consumers of each other’s goods or services.”). Rather, in these circumstances, a non-consumer plaintiff may
prevail by alleging a consumer nexus with the alleged conduct. Leonel & Noel Corp. v. Cerveceria Centro
Americana, S.A., No. 08 C 5556, 2009 WL 981384, at *4 (N.D. Ill. Apr. 13, 2009) (citing Athey Prods. Corp. v.
Harris Bank Roselle, 89 F.3d 430, 437 (7th Cir. 1996)) (“A plaintiff that is not a consumer can only maintain an
ICFA claim by sufficiently alleging a ‘consumer nexus.’”)
Although Illinois courts are split as to whether the “consumer nexus” test applies to claims by individual
as well as business non-consumers, Thrasher-Lyon v. Ill. Farmers Ins. Co., 861 F. Supp. 2d 898 (N.D. Ill. 2012)
is instructive. In recognizing the split in authority, the Thrasher-Lyon court applied the consumer nexus test to an
individual consumer and noted that “[a] contrary holding, that businesses have standing to vindicate such
concerns while natural persons do not, would be anomalous . . . and [there is] no basis in the [ICFA] itself or
elsewhere for drawing such a distinction.” Thrasher, 861 F. Supp. 2d at 911 (quoting Bank One Milwaukee v.
Sanchez, 336 Ill. App. 3d 319, 324, 270 Ill. Dec. 642, 642, 783 N.E.2d 217, 221 (Ill. App. Ct. 2003)).
Accordingly, the Court will apply the consumer nexus test to Plaintiff’s claim.
Applebrook’s argument that Plaintiff has failed to allege a consumer nexus similarly fails. A consumer
nexus requires a showing of “trade practices directed to the market generally” or that the conduct “otherwise
implicates consumer protection concerns.” Athey, 89 F.3d at 438; Leonel & Noel Corp., 2009 WL 981384, at *4.
Here, Plaintiff alleges that as an “established” practice Defendants tracked Plaintiff and other borrowers’ loans en
masse and unlawfully ordered property services during periods when Plaintiff and other borrowers had a right to
remain in their homes. (Compl. ¶¶ 3, 25, 27, 62, 91, 97.) Thus, viewing the allegations in the light most
favorable to Plaintiff, Plaintiff’s allegations are sufficient to survive a motion to dismiss. See Boyd v. U.S. Bank,
N.A., ex rel. Sasco Aames Mortg. Loan Trust, Series 2003-1, 787 F. Supp. 2d 747, 756 (N.D. Ill. 2011)
(allegations that defendants broke into plaintiff’s home and dispossessed him of his property without notice or
court approval was sufficient factual predicate for ICFA claim); CustomGuide v. CareerBuilder, LLC, 813 F.
Supp. 2d 990, 1001 (N.D. Ill. 2011) (allegations that defendant “intended that general consumers and the general
public rely on its unfair, unlawful and deceptive business practices” sufficient). Contrary to Applebrook’s
argument, Thrasher-Lyon is distinguishable, because there the plaintiff failed to allege “how Defendants’ actions
or representations concerned consumers other than Plaintiff or how their actions involved consumer protection
concerns.” 861 F. Supp. 2d at 912. The Court, therefore, denies Applebrook’s Motion as to Plaintiff’s ICFA
claim.
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III.

Injunctive Relief

In Count VI, Plaintiff seeks “corresponding injunctive relief,” including “equitable relief” and “a Court
order directing Defendants to refrain from their unlawful premature entry into and/or control over Class member
homes.” (Compl. ¶ 103.) Applebrook challenges Plaintiff’s request for injunctive relief on the ground that he has
failed to plead “that he is threatened with irreparable harm.” (Def.’s Reply 12.) As the issue of Plaintiff’s
entitlement to injunctive relief is premature at this stage, Applebrook’s argument fails. Stevens v. Interactive Fin.
Advisors, Inc., No. 11 C 2223, 2012 WL 689265, at *6 (N.D. Ill. Mar. 2, 2012). Nonetheless, because injunctive
relief is not properly pled as an independent cause of action, the Court instead construes it as a request for relief
and strikes any references to it in Plaintiff’s Complaint as a cause of action. Artistic Framing, Inc. v. Hospitality
Res., Inc., No. 12-CV-6997, 2013 WL 317019, at *2 (N.D. Ill. Jan. 24, 2013); Hanover Ins. Grp. v. Singles
Roofing Co., Inc., No. 10 C 611, 2012 WL 2368328, at *9 (N.D. Ill. June 21, 2012) (noting preliminary injunction
not appropriately pled as substantive cause of action).
IV.

Motion to Strike Request for Attorney’s Fees

Lastly, Applebrook argues that the Court should strike Plaintiff’s request for attorney’s fees because
Plaintiff fails to sufficiently allege his FDCPA and ICFA claims, which are the only claims for which Plaintiff
may be entitled to fees. See ILCS § 505/10a(c); 15 U.S.C. § 1692k(a)(3). Because Plaintiff’s ICFA claim and
FDCPA claim in part survive Applebrook’s Motions and the Joint Motion to dismiss, the Court denies
Applebrook’s Motion to Strike Attorney’s Fees.
CONCLUSION
For the foregoing reasons, the Court grants in part and denies in part the Motions.

11C8775 Frazier vs. U.S. Bank National Association et al

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