Zuber v. Bayview Loan Servicing, LLC et al
MEMORANDUM Opinion and Order: For the reasons stated in the accompanying Memorandum Opinion and Order, Defendant Bayview's Partial Motion to Dismiss 43 is granted. Count II against Bayview is dismissed. Signed by the Honorable James B. Zagel on 11/14/2016. Mailed notice(ep, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
SHERRIE L. ZUBER,
No. 15 C 10976
Judge James B. Zagel
BAYVIEW LOAN SERVICING, LLC;
KOVITZ SHIFRIN NESBIT, a Professional
Corporation; MANOR HOMES OF SPRING
LAKE CONDOMINIUM ASSOCIATION
NO. 2; BANK OF AMERICA, N.A. &
MANAGEMENT, INC. a/k/a ACM
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Bayview Loan Servicing, LLC’s Partial Motion to Dismiss
Pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiff Sherrie Zuber filed a nine-count Complaint against
Bayview Loan Servicing, LLC (“Bayview”) and other Defendants, alleging violations of the Fair
Debt Collection Practices Act (“FDCPA”) and Illinois Consumer Fraud and Deceptive Business
Practices Act (“ICFA”). Counts I and II are FDCPA and ICFA claims respectively, both against
Bayview. Bayview seeks to dismiss Count II. For the following reasons, Defendant Bayview’s
Motion is granted.
Sherrie Zuber obtained a mortgage on property located at 310 Primrose Court in Aurora,
Illinois on July 1, 2009. She defaulted on the mortgage in May 2013 and filed for Chapter 13
bankruptcy that November.
After the bankruptcy filing, Zuber alleges that Bayview, a loan servicing company that
purchases mortgage loans in default, acquired the servicing rights to the debt associated with the
Primrose Court property. In December 2014 and January 2015, Bayview sent Zuber mortgage
statements, including payment coupons and monthly payment amounts, and a debt validation
letter stating that Zuber owed Bayview a total of $150,490.83. Bayview filed for a Motion for
Relief from the Automatic Stay in Zuber’s bankruptcy case on March 12, 2015. Hon. Donald R.
Cassling modified the stay on March 20, 2015, granting Bayview permission “to pursue all non
bankruptcy remedies and work out options” with regard to the Primrose Court property.
Bayview sent Zuber a notice of default and intent to accelerate on April 2, 2015, and
continued to attempt to collect the debt throughout April and May. Zuber alleges that all of these
attempts were made with full knowledge of her bankruptcy filing and argues that Bayview
engaged in deceptive practices to collect an uncollectible debt from her. Her complaint states that
she “has expended time and incurred costs consulting with her attorneys as a result of
Defendant’s deceptive collection actions,” and that she was “unduly inconvenienced and
harassed by Defendants’ unlawful attempts to collect the subject debt.”
II. LEGAL STANDARD
A motion to dismiss under Fed. R. Civ. P. 12(b)(6) does not test the merits of a claim, but
rather the sufficiency of the complaint. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.
1990). In deciding a 12(b)(6) motion, the court accepts all well-pleaded facts as true and draws
all reasonable inferences in favor of the plaintiff. Id. at 1521. To survive a 12(b)(6) motion, “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 (2009). In addition to the complaint, a
court may also consider documents attached to or referenced in the complaint. Levenstein v.
Salafsky, 164 F.3d 345, 347 (7th Cir.1998) (quoting Wright v. Associated Ins. Cos., Inc., 29 F.3d
1244, 1249 (7th Cir.1994)). “A complaint should not be dismissed for failure to state [a] claim
unless it appears beyond doubt that the plaintiff is unable to prove any set of facts which would
entitle the plaintiff to relief.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 546 (2007).
To state a claim under ICFA, a plaintiff must show: “(1) a deceptive or unfair act or
promise by the defendant; (2) the defendant’s intent that the plaintiff rely on the deceptive or
unfair practice; and (3) that the unfair or deceptive practice occurred during a course of conduct
involving trade or commerce.” Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 739 (7th
Cir. 2014). ICFA claims are subject to the heightened pleading standard of Fed. R. Civ. P. 9(b),
which requires the circumstances of fraud to be stated “with particularity.” Id. at 736-737. When,
as here, the plaintiff is a private party, he must also show that he suffered “actual damage” from
the alleged violation. See 815 ILCS 505/10a(a); Kim v. Carter’s Inc., 598 F.3d 362, 364 (7th Cir.
2010). The Seventh Circuit has said that “actual damages” means the plaintiff must have suffered
“actual pecuniary loss”—in other words, actual damages are economic and calculable, not
emotional or intangible. Kim, 598 F.3d at 365 (citing Mulligan v. QVC, Inc., 888 N.E.2d 1190,
1197 (2008)); Morris v. Harvey Cycle & Camper, Inc., 911 N.E.2d 1049, 1053-54 (2009)
(plaintiff cannot state ICFA claim when he alleges damages consisting only of “emotional
distress, inconvenience, and aggravation”).
Here, Plaintiff has only pleaded emotional disturbance and inconvenience in the form of
the distress brought on by the collection letters and the time expended to bring this lawsuit.
Plaintiff argues that she has incurred costs in the administration of this lawsuit and cites a case in
this district in which Judge Gottschall commented, “Some courts have found a plaintiff’s
expenditure of time and money incident to defending a debt collection effort to suffice as damages
under the ICFA.” Thompson v. CACH, LLC, 14 CV 0313, 2014 WL 5420137, (N.D. Ill. Oct. 24,
2014). Yet that is not the circumstance we have here. There is no indication in the complaint or
Plaintiff’s subsequent filings that she has defended the debt collection effort, let alone that she
expended money to do so. On the contrary, Bayview points to a more analogous case in this district
where the plaintiff alleged damages in the form of the time and money expended when consulting
with his attorneys. Judge Kendall “decline[d] to read the actual damages prong so broadly as to allow
for the requirement to be met simply by a plaintiff’s spending time consulting with his attorney,”
especially since “attorney’s fees are reimbursed pursuant to a different part of the statute.” Price v.
Seterus, Inc., 15 C 7541, pp. 13 – 14, 2016 WL 1392331, at *7 (N.D. Ill. Apr. 8, 2016) (citing
Armbrister v. Pushpin Holdings, LLC, 896 F. Supp. 2d 746, 756 (N.D. Ill. 2012); Garcia v.
Receivables Performance Mgmt., LLC, No. 14 C 5367, 2014 WL 5543885, at *2 (N.D. Ill. Nov. 3,
2014)). I agree. Plaintiff has not pleaded actual damages, either generally or with the required
specificity. Her ICFA claim against Bayview must therefore be dismissed.
For the foregoing reasons, Defendant Bayview’s Motion is granted. Count II against
Bayview is dismissed.
James B. Zagel
United States District Judge
DATE: November 14, 2016
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