Stephens et al v. Capital One, N.A.

Filing 20

MEMORANDUM OPINION AND ORDER Signed by the Honorable Robert M. Dow, Jr. on 9/7/2016. Mailed notice(cdh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

SEAN STEPHENS and LINDA STEPHENS,
Plaintiffs,
CAPITAL ONE, N.A.,
Defendant.

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Case No. 15-cv-9702
Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Capital One, N.A.’s motion to dismiss [16]. For the
reasons set forth below, Defendant’s motion [16] is granted in part and denied in part. This case
is set for further status on September 21, 2016, at 9:00 a.m to discuss whether Plaintiff seeks to
pursue an amended complaint.
I.

Background
The Court accepts as true the facts alleged in Plaintiffs’ complaint and makes all

reasonable inferences in their favor. See McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 879
(7th Cir. 2012). On July 31, 2007, Plaintiffs entered into an adjustable rate mortgage to purchase
the property at 741 Hillside Avenue, Elmhurst, Illinois 60126 (the “Property”). The lender was
ING Bank, FSB, predecessor-in-interest to Capital One (“Defendant”). On December 12, 2013,
Defendant filed a foreclosure complaint alleging that Plaintiffs had missed payments from April
1, 2013 through June 30, 2013. However, due to a mistake by Defendant, Plaintiffs made
multiple overpayments on the mortgage. Defendant communicated this mistake to Plaintiffs in a
letter dated September 4, 2014. [1-1] at 26. Consequently, the mortgage was not in default
during this period.

Plaintiffs’ account was credited $8,673.21 towards the April 1, 2013 through June 30,
2013 payments and $2,845.81 towards the principal balance. Id. The parties then engaged in
negotiations regarding a potential loan modification, yet were unsuccessful. On July 30, 2015,
Defendant voluntarily dismissed its Complaint. [1-1] at 27-34.
On September 29, 2015, Plaintiffs filed the instant lawsuit [1-1] against Defendant in the
Circuit Court for the 18th Judicial District in DuPage County, Illinois (Case No. 2015L000924).
The complaint (“Complaint”) alleges the following seven counts: wrongful foreclosure based on
mistake (Count I), breach of contract (Count II), violations of § 5(a) of the Federal Trade
Commission Act (“FTC”), 15 U.S.C. §45(a) (Count III), violations of §623(a)(1)(A) of the Fair
Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681s-2(a) (Count IV), violations of § 807 of the
Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692e (Count V), violations of the
Illinois Consumer Fraud Act (“ICFA”), 815 ILCS 505/1 et seq. (Count VI), and violations of the
Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2605(f)(1)(A) (Count VII). On
October 30, 2015, Defendant removed [1] the instant lawsuit, pursuant to 28 U.S.C. §§ 1441 and
1446, from the 18th Judicial District, DuPage County, Illinois to this Court.
On December 10, 2015, Defendant filed a motion [16] to dismiss six of the seven counts
(all but Count V) alleged in the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).
Defendant argues that Counts I, II, III, IV, VI, and VII must be dismissed for the following
reasons: (1) the cause of action for “wrongful foreclosure” does not exist; (2) Plaintiffs’ nonperformance necessitates dismissal of breach of contract claim; (3) there is no private right of
action under the FTC act; (4) there is no private right of action for furnishing inaccurate
information under the FCRA; and (5) Plaintiffs fail to state a claim for a violation of both ICFA
and RESPA. In response to Defendant’s motion to dismiss, Plaintiffs voluntarily dismissed

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Counts I, III, and IV on January 15, 2016.

[17] at 1. The remaining counts at issue in

Defendant’s motion to dismiss are Counts II, VI, and VII. Plaintiffs ask the Court to deny
Defendant’s motion to dismiss or, in the alternative, to grant leave to file an amended complaint.1
II.

Legal Standard
To survive a Rule 12(b)(6) motion to dismiss, the complaint first must comply with Rule

8(a) by providing “a short and plain statement of the claim showing that the pleader is entitled to
relief,” Fed. R. Civ. P. 8(a)(2), such that the defendant is given “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) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the
complaint must be sufficient to raise the possibility of relief above the “speculative level.”
E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly,
550 U.S. at 555). “A pleading that offers ‘labels and conclusions’ or a ‘formulaic recitation of
the elements of a cause of action will not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Twombly, 550 U.S. at 555). However, “[s]pecific facts are not necessary; the statement
need only give the defendant fair notice of what the * * * claim is and the grounds upon which it
rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Twombly, 550 U.S. at 555) (ellipsis in
original).

Dismissal for failure to state a claim under Rule 12(b)(6) is proper “when the

allegations in a complaint, however true, could not raise a claim of entitlement to relief.”
Twombly, 550 U.S. at 558. The Court reads the complaint and assesses its plausibility as a
whole. See Atkins v. City of Chicago, 631 F.3d 823, 832 (7th Cir. 2011).
III.
Analysis

1 The Court notes at the outset that Plaintiffs claim that the Court has subject matter jurisdiction over
Counts III, IV, V, and VII under 28 U.S.C. § 1331. However, with the voluntarily dismissal of Counts I,
III, and IV, the only claims that remain are Count II, V, VI, and VII. As it stands, The Court has
jurisdiction over Counts V and VII under 28 U.S.C. § 1331 and supplemental jurisdiction over Counts II
and VI under 28 U.S.C. § 1367(a).

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A.

Count VII (RESPA)

Count VII alleges a violation of 12 C.F.R. § 1024.41(f), a federal regulation pursuant to
the Real Estate Settlement Procedures Act, 12 U.S.C. § 2605(f)(1)(A), which states the
following: “A servicer shall not make the first notice or filing required by applicable law for any
judicial or non-judicial foreclosure process unless: (i) A borrower’s mortgage loan obligation is
more than 120 days delinquent * * * *” Plaintiffs’ complaint alleges a violation of 12 C.F.R. §
1024.41(f) based on the claim that from April 1, 2013 through June 30, 2013 Plaintiffs were not
in default. This allegation stems from Defendant filing a foreclosure complaint against Plaintiffs
on December 12, 2013. Defendant argues that Plaintiffs have failed to make any claim that
Plaintiffs were in default for less than 120 days. Furthermore, Defendant asserts that Plaintiffs
have failed to adequately allege actual damages and that Plaintiffs’ RESPA claim is not ripe. In
response, Plaintiffs claim that it is “inexcusable” for Defendant to claim that the foreclosure
complaint was proper and just because Plaintiffs allegedly stopped making their payments postJune 30, 2013. [17] at 6.
1.

RESPA, 12 C.F.R. § 1024.41

In ¶ 12 of the complaint, Plaintiffs claim that the mortgage was not in default from April
1, 2013 through June 30, 2013. The mortgage foreclosure complaint was filed on December 12,
2013. From June 30, 2013 until December 12, 2013, 164 days passed. In order to comply with
12 C.F.R. § 1024.41(f)(1), “a servicer shall not make the first notice or filing required by
applicable law for any judicial or non-judicial foreclosure process unless a borrower’s mortgage
loan obligation is more than 120 days delinquent * * * *” The lapse in time presented here
exceeds the statutory minimum laid out in 1024.41(f)(1).

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Plaintiffs fail to allege any claim that they were in default for less than 120 days when
Defendant filed the foreclosure complaint on December 12, 2013. Although detailed factual
allegations are unnecessary, the complaint must have “enough facts to state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). It is true that
after the December 2013 complaint was filed, Defendant realized a mistake regarding the interest
rates that admittedly allowed Plaintiffs to avoid defaulting on the loan during the April, 2013 –
June, 2013 period. This mistake was communicated in a letter from Defendant to Plaintiffs on
September 4, 2014. [1-1] at 26. However, the fact that Plaintiffs were not in default as of June
30, 2013 does not exclude the possibility of a later default that could meet RESPA’s 120-day
delinquency requirement. While Plaintiffs argue that 12 C.F.R. § 1024.41(f) has been violated,
no facts have been provided that would allow the Court to draw any inferences that the mortgage
was not more than 120 days in default at the time that the foreclosure complaint was filed.
Accordingly, the Court finds that Plaintiffs have failed to state a claim under Fed. R. Civ. P.
12(b)(6).
2.

Actual Damages under RESPA

Defendant also claims that Plaintiffs fail to adequately allege actual damages. [16] at 8.
Under Federal Rule of Civil Procedure 8(a)(3), a pleading must contain a demand for relief
sought. Plaintiffs respond that relief sought was sufficiently pled in ¶¶ 13 - 15 of the complaint.
[17] at 7-8.
Under § 6 of RESPA, 12 U.S.C. § 2605(f), a plaintiff’s demand for relief is limited to
damages that are derived from any violations of actual damages and the borrower’s costs and
attorneys fees. However, the requirement of actual damages does not confine a plaintiff to
pecuniary losses only. See Catalan v. GMAC Mortg. Corp., 629 F.3d 676, 696 (7th Cir. 2011);

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Hrubec v. Nat’l R.R. Corp., 829 F. Supp. 1502, 1505 (N.D. Ill. 1993). If properly stated in the
complaint, non-pecuniary damages are available as actual damages under RESPA because of the
statute’s purpose as a consumer protection statute. See Ploog v. HomeSide Lending, Inc., 209 F.
Supp. 2d 863, 870 (N.D. Ill. 2002); cf. Konieczka v. Wachovia Mortg. Corp., 2012 WL 1049910,
at *4 (N.D. Ill. Mar. 28, 2012) (quoting Aiello v. Providian Fin. Corp., 239 F.3d 876, 881 (7th
Cir. 2001) (holding that because Plaintiffs did not allege a pecuniary loss, Plaintiffs had
consequently not pled actual damages sufficient to raise the possibility of relief above the
speculative level)); Lane v. Vitek Real Estate Industries Group, 713 F. Supp. 2d 1092 (E.D. Cal.
2010) (“Although [§ 2605(f)] does not explicitly make a showing of damages part of the
pleading standard, a number of courts have read the statute as requiring a showing of pecuniary
damages in order to state a claim.”) (quoting Allen v. United Fin. Mortg. Corp., 660 F. Supp. 2d.
1089, 1097 (N.D. Cal. 2009)).
Additionally, when basing a claim on actual damages, the plaintiff has the responsibility
to set forth a causal link between the defendant’s violation and the plaintiff’s injuries. McLean v.
GMAC Mortg. Corp., 398 Fed. Appx. 467, 471 (11th Cir. 2010); Straker v. Deutsche Bank Nat’l
Trust, 2012 WL 7829989, at *11 (M.D. Pa. Apr. 26, 2012); Gorbaty v. Wells Fargo Bank, N.A.,
2012 WL 1372260, at *5 (E.D.N.Y. Apr. 18, 2012) (“A plaintiff seeking actual damages under §
2605 must allege that the damages were proximately caused by the defendant’s violation of
RESPA.”) In sum, failing to plead actual damages is fatal to a RESPA claim. Konieczka v.
Wachovia Mortg. Corp., 2012 WL 1049910 at *4 (N.D. Ill. Mar. 28, 2012). This fatality occurs
when a court is unable to find an allegation of actual damages causally connected to the alleged
RESPA violation.

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Plaintiffs cite Johnstone v. Bank of America, 173 F. Supp. 2d 809 (N.D. Ill. 2001),
claiming that § 2605(f) allows a plaintiff to recover for time spent attempting to resolve issues
raised by a wrongfully filed foreclosure action and for their inconvenience. Johnstone, 173 F.
Supp. at 816. In Johnstone, the court held that the plaintiff had stated a claim for actual damages
under 12 U.S.C. § 2605(f), “…with regard to mental anguish, late fees, the foreclosure, and her
time spent on the case.” Id. at 817. However, the complaint in Johnstone concretely alleged a
causal connection between the defendant’s alleged RESPA violation:
As a result of Bank of America violating § 2605(e) by (1) failing to correct her problem
within 60 days and (2) reporting plaintiff as delinquent to a credit bureau or bureaus
within 60 days from receiving Ms. Johnstone’s letter which disputed the amount of the
debt. Ms. Johnstone has … (3) has paid late fees; (4) Bank of America has foreclosed on
her property, which seeks attorney fees.
Id. at 814 (emphasis added).
When determining whether a plaintiff has plausibly alleged actual damages, the Court
draws all reasonable inferences in Plaintiffs’ favor for the purpose of this motion. However, in
¶¶ 13-15, Plaintiffs fail to state how the alleged RESPA violation was causally connected to the
claimed actual damages.
Furthermore, in ¶ 13 of the complaint, Plaintiffs fail to make any claim that could allow
the Court to make an inference that Defendant’s pursuit of foreclosure was in violation of
RESPA. Section 13 merely states that Defendant “continued its pursuit of foreclosure while
simultaneously engaging the Stephens in loan modification review.” [1-1] at ¶ 13. The Court is
unable to draw any inference in Plaintiffs’ favor that this conduct is connected to a RESPA
violation or that there are any actual damages alleged. In ¶ 14, the complaint simply states that
“…[Defendant] voluntarily dismissed its Complaint on July 30, 2015.” [1-1] at ¶ 14. Here,
there are no actual damages that could be inferred nor any alleged RESPA violation that could be

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inferred to have been causally connected to any actual damages. In ¶ 15, the complaint states,
“To date, Capital One has not corrected the Mortgage to remove late fees, attorneys fees, and
foreclosure fees for its wrongful foreclosure.

Nor has Capital One removed the negative

reporting to the credit bureaus.” [1-1] at ¶ 15. Plaintiffs fail to show how not removing any late,
attorney, or foreclosure fees equate to actual damages causally connected to and based upon a
violation of RESPA.
Consequently, Plaintiffs’ complaint lacks any claim of actual damages under RESPA.
While non-pecuniary damages (like those plaintiff claims are stated in ¶¶ 13 - 15) can be
recovered if they are actual damages that are causally connected to an alleged RESPA violation,
Plaintiffs have failed to adequately allege such damages.
3.

Ripeness

Defendant argues that Plaintiffs’ RESPA claim is not ripe due to Defendant’s voluntary
dismissal of the original foreclosure complaint and the fact that foreclosure of Plaintiffs’ home is
still a future possibility. Ripeness is a justiciability doctrine derived from “Article III limitations
on judicial power and from prudential reasons for refusing to exercise jurisdiction.” Nat’l Park
Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 807-08 (2003) (quoting Reno v. Catholic
Social Servs., Inc., 509 U.S. 43, 53 (1993)); see Sprint Spectrum L.P. v. City of Carmel, Ind., 361
F.3d 998, 1002 (7th Cir. 2004). The Supreme Court has held that a “claim is not ripe for
adjudication if it rests upon contingent future events that may not occur as anticipated, or may
not occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998).

Despite Defendant

requesting dismissal under Fed. R. Civ. P. 12(b)(6), the issue of ripeness is a question of subject
matter jurisdiction, and best analyzed under Rule 12(b)(1). See Union Tank Car Co. v. AerojetGeneral Corp., 2005 WL 2405802 at *2 (N.D. Ill. Sept. 27, 2005). Under 12(b)(1) analysis, the

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Court “must accept the complaint’s well-pleaded factual allegations as true and draw reasonable
inferences from those allegations in plaintiff’s favor.”

United Transp. Union v. Gateway

Western Ry. Co., 78 F.3d 1208, 1210 (7th Cir. 1996).
As Plaintiffs’ response clarifies, Defendant fails to cite authority that illustrates 12 C.F.R.
§ 1024.41(a) has a requirement of losing property in order to be deemed ripe. The Court
therefore finds no requirement. Under 12 U.S.C. § 2605(f), damage occurs when a party fails to
comply with any provision of RESPA. There is no text that indicates the taking of property is
the only way to fail to comply with any of RESPA’s provisions. Additionally, “the express
terms of RESPA clearly indicate that [RESPA] is, in fact, a consumer protection statute.”
Johnstone, 173 F. Supp. 2d at 816. Numerous courts have held that “consumer protection
statutes are to be interpreted broadly in order to give effect to their remedial purposes.” Katz v.
Dime Sav. Bank, FSB, 992 F. Supp. at 255-56. Therefore, the Court concludes that the taking of
property is not required for Plaintiffs’ claimed violation of RESPA to be ripe.
B.

Count II (Breach of Contract)

Plaintiffs claim that Defendant materially breached the mortgage contract with Plaintiffs
when Defendant prematurely accelerated the Interest Only Adjustable Rate Note (the “Note”)
and this breach effectively released Plaintiffs from their contractual obligation. See [1-1] at 52
(showing the actual Note acceleration provision in the contract between Plaintiffs and
Defendant). Defendant contends that Plaintiffs have failed to allege that Plaintiffs themselves in
fact performed (i.e., paid requisite payments under the mortgage contract). Plaintiffs respond
that they pled sufficient facts in Count II that would allow the Court to “reasonably infer that the
Stephens made each of their payments for April 1, 2013 through June 30, 2013” and that a

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“failure to allege that they made each of their payments under the mortgage since June 30, 2013
also does not warrant dismissal of Count II.” [17] at 3.
Plaintiffs properly allege that they performed their obligations under the mortgage during
the April 1, 2013 through June 30, 2013 period. However, Plaintiffs’ claim offers no allegations
regarding the period following June 30, 2013. The complaint is void of any factual allegations
concerning that period other than the conclusory assertion in ¶ 24 that the mortgage note was
accelerated “without a proper basis to do so.” “[A] pleading that offers ‘labels and conclusions’
or ‘a formulaic recitation of the elements of a cause of action will not do.’” Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. 554 at 555.

“While legal conclusions can provide the

complaint’s framework, they must be supported by factual allegations.” Iqbal, 556 U.S. at 664.
Consequently, the Court concludes, pursuant to Fed. R. Civ. P. 12(b)(6), that Plaintiffs have
failed to state a claim under Count II for which relief can be granted.
C.

Count VI (ICFA)

To state a claim under the Illinois Consumer Fraud Act (“ICFA”), Plaintiffs “must allege
five elements: (1) a deceptive act or unfair practice occurred, (2) the defendant intended for
plaintiff to rely on the deception, (3) the deception occurred in the course of conduct involving
trade or commerce, (4) the plaintiff sustained actual damages, and (5) the damages were
proximately caused by the defendant’s deception.” Blankenship v. Pushpin Holdings, LLC, 2016
WL 212933, at *2 (N.D. Ill. Jan. 19, 2016); Parkside at Kilani, LLC v. Tremont Realty Capital,
2015 WL 1515483, at *13 (Ill. App. Ct. Mar. 31, 2015).
In Plaintiffs’ complaint, Plaintiffs assert Defendant committed “unfair and/or deceptive
acts declared unlawful under § 2 of the ICFA. [1-1] at 10 (emphasis added). A complaint
alleging violation of the ICFA based on fraud or deception must satisfy the heightened pleading

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requirements of Rule 9(b). Bartucci v. Wells Fargo Bank N.A., 2015 WL 6955482, at *5 (N.D.
Ill. Nov. 10, 2015). Under 9(b), the plaintiff “must state with particularity the circumstances
constituting fraud or mistake.” Fed. R. Civ. P. 9(b). This requires the complaint specifically
alleging the “who, what, when, where, and how” of the alleged deceptive conduct. Bartucci,
2015 WL 6955482 at *5 (quoting Pirelli Armstrong Tire Corp. Retiree Med. Benefits Trust v.
Walgreen Co., 631 F.3d 436, 441 (7th Cir. 2011)).
Admittedly, a plaintiff may allege that conduct is unfair under the ICFA without alleging
that the conduct is deceptive. If the plaintiff alleges unfair conduct, the complaint “need only
meet the notice pleading standard of Rule 8(a), not the particularity requirement in Rule 9(b).”
Windy City Metal Fabricators & Supply, Inc. v. CIT Technology Financing Serv., 536 F.3d 663,
670 (7th Cir. 2008) (reversing the district court after it had erroneously dismissed an ICFA claim
under a heightened pleading standard). This standard requires Plaintiffs’ complaint to only
provide “a short and plain statement of the [unfair practice] claim showing that [Plaintiffs] [are]
entitled to relief.” Fed. R. Civ. P. 8(a)(2).
A defendant has acted unfairly if its practice: (1) offends public policy; (2) is immoral,
unethical, oppressive or unscrupulous; or (3) causes substantial injury to consumers. Bartucci,
2015 WL 6955482 at *5 (citing F.T.C. v. Sperry & Hutchinson Co., 405 U.S. 233, 244 n.5
(1972). All three criteria need not be met for a practice to be deemed unfair. See Miner v. Gov.
Payment Serv., Inc., 2015 WL 3528242, at *7 (N.D. Ill. June 4, 2015); see also Batson v. Live
Nation Entertainment, Inc., 746 F.3d 827, 830 (7th Cir. 2014) (“Illinois recognizes the Sperry
test, and so we too will use it as our point of departure.”). In essence, if one of the three factors
is not alleged, the remaining factors must be alleged to an even greater extent. Rodriguez v.
Chase Home Finance, LLC, 2011 WL 5076346, at *4 (N.D. Ill. Oct. 25, 2011). As for the first

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factor, Plaintiffs do not allege that Defendant violated public policy when it represented that
Plaintiffs’ debts were valid. This leaves the remaining two factors at issue.
In regards to the second factor, Plaintiffs admit that the complaint lacks specific
allegations that Defendant conduct was “immoral, unethical, oppressive, or unscrupulous.” Yet
such specific allegations are not required. Windy City Metal, 546 F.3d at 672 (holding that
plaintiffs had adequately stated a claim for relief despite not specifically using the words
“immoral, unethical, oppressive, or unscrupulous” in the complaint.). The Court finds that Count
VI of the complaint has alleged facts that, if proven, make relief more than merely speculative.
Plaintiffs’ complaint specifically alleges Defendants represented that Plaintiffs’ debts were valid
despite Plaintiffs disputing the validity or accuracy of the alleged debt.

[1-1] at 10.

Furthermore, the complaint alleges that Defendant failed to review information substantiating the
accuracy of the debt. [1-1] at 10. If proven, the only reasonable alternatives for Plaintiffs were
to pay inflated payments or risk losing their property.
Regarding the third factor, “a practice causes substantial injury to consumers if it causes
significant harm to the plaintiff and has the potential to cause injury to a large number of
consumers.” Wilson v. Harris N.A., 2007 WL 2608521, at *8 (N.D. Ill. Sept. 4, 2007) (quoting
Garrett v. RentGrow, Inc., 2005 WL 1563162, at *4 (N.D. Ill. July 1, 2005). In Wilson, the court
denied the defendant’s motion to dismiss based upon the defendant’s more than two hundred
Chicago and northwest Indiana branches. That court could reasonably infer, based on the
defendant’s large consumer base, that the aggregate consumer base may have been at risk for
similar unauthorized transactions like the one that was at issue. Id. Here, the Court notes that
Capital One, N.A. is a national bank with generated operating earnings of $4.39 billion in 2013.
See Capital One, N.A., 2013 Annual Report, at 5 (Feb. 27, 2014). Defendant’s expansive

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consumer base similarly allows the Court to reasonably infer that a large consumer base may be
at risk for similar conduct that has been alleged to qualify as “unfair” under the ICFA.
Consequently, Plaintiffs have sufficiently stated a claim under Count VI. While the first factor
of the unfairness test has not been alleged, not all three factors need to be met in order to be
deemed unfair under the ICFA. See, e.g., Miner, 2015 WL 3528242, at *7. The second and
third factors have sufficiently been pled.
Finally, the Court must consider Defendan’s argument that its alleged conduct was an
isolated incident that is not actionable under the ICFA. A minority of jurisdictions have held that
the ICFA was intended to protect consumers against fraud and unfair or deceptive acts or
practices in the conduct of trade or commerce, and not to create a cause of action based on
isolated errors. Skyline International Development v. Citibank, 302 Ill. App. 3d 79, 85 (1st Dist.
1998). However, in Illinois, “a plaintiff/consumer may bring a claim under the ICFA based upon
a single, isolated injury, and [ ] need not [allege] wide-spread effect on consumers generally.”
Birnberg v. Milk St. Residential Associates Ltd. Partnership, 2003 WL 151929, at *17 (N.D. Ill.
Jan. 21, 2003) (quotation marks and citation omitted); see also ABN AMRO, Inc. v. Capital
Intern. Ltd., 595 F. Supp. 2d 805, 849 (N.D. Ill. 2008) (citing Athey Prods. Corp. v. Harris Bank
Roselle, 89 F.3d 430, 436 (7th Cir. 1996)) (“A plaintiff suing under [ICFA] may state a claim
based upon a single, isolated injury, and based solely upon the plaintiff’s own injury.”).
Plaintiffs are not required to allege more than a single, isolated injury and need not demonstrate a
wide-spread effect on consumers generally. Accordingly, the Court denies Defendant’s motion
to dismiss Count VI.

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IV.

Conclusion
For the foregoing reasons, Defendant Capital One, N.A.’s motion to dismiss [16] is

granted in part and denied in part. Defendant’s motion to dismiss is granted as to Counts II and
VII, but denied as to Count VI. Considering Plaintiffs have voluntarily dismissed Counts I, III,
and IV, the only claims that remain are Counts V and VI. This case is set for further status on
September 21, 2016, at 9:00 a.m to discuss whether Plaintiff seeks to pursue an amended
complaint.
.

Date: September 7, 2016
Robert M. Dow, Jr.
United States District Judge

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