Lee v. Wells Fargo Bank, N.A.

Filing 19

WRITTEN Opinion entered by the Honorable Harry D. Leinenweber on 3/12/2013:Defendant Wells Fargo Bank, N.A.'s Motion to Dismiss is GRANTED without prejudice. Mailed notice(wp, )

Order Form (01/2005)

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

Harry D. Leinenweber

CASE NUMBER

12 C 04721

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

3/12/2013

Theaplus Lee, Jr. Vs. Wells Fargo Bank, N.A.

DOCKET ENTRY TEXT

Minute Entry before Honorable Harry D. Leinenweber: Defendant Wells Fargo Bank, N.A.’s Motion to
Dismiss is GRANTED without prejudice.

O[ For further details see text below.]

Docketing to mail notices.
Mailed AO 450 form.

STATEMENT
Before the Court is Defendant Wells Fargo Bank, N.A.’s Motion to Dismiss. For the reasons stated below,
the motion is granted.
Pro se Plaintiff Theaplus Lee, Jr. (“Lee”) filed this lawsuit against Wells Fargo Bank, N.A. (“Wells Fargo”)
on June 15, 2012. While the complaint is somewhat unclear, Lee seems to assert that he sought a loan from
third party Chase Bank. It appears Mr. Lee received a line of credit, though it is unclear from whom. He
alleges that Chase and Wells Fargo later cut his credit, which made him unable to sustain his business or pay
his mortgage. He claims that despite not having a mortgage with Wells Fargo, it threatened to foreclose on
his house.
Wells Fargo now moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(4) for insufficient
process and Rule 12(b)(5) for insufficient service of process. Wells Fargo argues first that the summons was
improper under Rule 4(a)(1), because it was directed to the address of Pierce and Associates, not Wells Fargo.
Wells Fargo also argues that service was not proper under Rule 4(m). Plaintiff filed no response to the
motion, and Defendant claims it has been unsuccessful in attempts to contact Plaintiff.
Rule 4 requires that a summons must be directed to the defendant. Fed. R. Civ. P. 4(a)(1). Service can be
made according to state law or by (1) delivering a copy of the summons and complaint personally, (2) leaving
a copy of each at the individual’s dwelling with someone of suitable age who resides there, or (3) by
delivering copies to an authorized agent. Fed. R. Civ. P. 4(e). A domestic or foreign corporation must be
served according to state law or “by delivering a copy of the summons and the complaint to an officer,
managing or general agent, or any other agent authorized by appointment or by law to receive service of
process . . . .” Fed. R. Civ. P. 4(h)(1). In Illinois, a private corporation may be served by leaving a copy of
the process with its registered agent, any officer or agent found anywhere within the state, or by any other
12C04751 Theaplus Lee, Jr. Vs. Wells Fargo Bank, N.A.

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STATEMENT
manner permitted by law. 735 Ill. Comp. Stat. 5/2-204.
If the plaintiff does not serve defendant within 120 days of filing the complaint, the court may dismiss the
action without prejudice, unless the plaintiff shows good cause for the failure. Fed. R. Civ. P. 4(m). Once a
defendant has challenged the sufficiency of service of process with a motion to dismiss under Rule 12(b)(5),
the burden is upon the plaintiff to make a prima facie showing that there was proper service. Manjarrez v.
Georgia-Pacific LLC, No. 12 C 1257, 2012 U.S. Dist. LEXIS 129752 at *7 (N.D. Ill. Sept. 12, 2012).
Lee issued summons to “Well [sic] Fargo/Pierce and Associates, 1 N. Dearborn Suite 1300, Chicago, IL
60602” on June 15, 2012. See Summons, ECF No. 7. Lee filed a return of service on June 29, 2012,
indicating that he had served the summons to that address via certified mail. Wells Fargo states that the
summons violated Rule 4 because it was directed to the address of Pierce and Associates, and not any address
for Wells Fargo. Wells Fargo states that Pierce and Associates is a foreclosure law firm not authorized to
accept service on its behalf. Indeed, Wells Fargo claims it has no registered agent in Illinois. See Def’s. Mot.
to Dismiss Ex. C, ECF No. 14-3 (Secretary of State website showing no registered agent for Wells Fargo
Bank, N.A. in Illinois).
The Court is convinced that the summons was not properly directed to Defendant, as both the name of the
Defendant and address on the summons appear incorrect. It also appears that Wells Fargo was not properly
served. Lee indicated he served the summons via certified mail, but nothing in Rule 4 authorizes service by
certified mail only. See Tolley v. Illinois, No. 06-627-GPM, 2006 U.S. Dist. LEXIS 92155 at *6 (S.D. Ill.
Dec. 20, 2006). Even if that were a proper means of service, Pierce and Associates is not an authorized agent
of Wells Fargo and could not accept on its behalf.
Plaintiff, by failing to respond to the motion, has provided no argument to the contrary. Thus, Plaintiff’s
summons and service were both insufficient, and Plaintiff has provided no good cause for those
insufficiencies. As more than 120 days have passed since Lee filed this action, the Court grants Wells
Fargo’s motion to dismiss.

12C04751 Theaplus Lee, Jr. Vs. Wells Fargo Bank, N.A.

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