Mohammad v. Johnson-Seck et al
MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 3/12/18.Mailed notice(ca, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
INDYMAC BANK, F.S.B./ONE WEST
ERICA A. JOHNSON-SECK,
FELICIA M. SWAIN, and
COMMERCIAL INVESTMENT TRUST,
16 C 7241
Judge John Z. Lee
MEMORANDUM OPINION AND ORDER
Plaintiff Aalim Mohammad (“Mohammad”) brings this suit pro se against
Commercial Investment Trust (“CIT”) and its employees Erica A. Johnson-Seck and
Felicia M. Swain (together, “Defendants”), alleging a number of federal and statelaw claims arising out of allegedly fraudulent and deceptive conduct surrounding
mortgage foreclosure proceedings in Illinois state court. Mohammad also alleges
that Defendants violated the Fair Debt Collection Practices Act (“FDCPA”), 15
U.S.C. § 1692 et seq., and the Telephone Consumer Protection Act (“TCPA”), 47
U.S.C. § 227. Defendants move to dismiss Mohammad’s FDCPA and TCPA claims
pursuant to Rules 12(b)(6) and for judgment on the pleadings as to the remaining
claims pursuant to Rule 12(c).
Mohammad has also filed motions for entry of
default and to convert Defendants’ motion to a motion for summary judgment.
For the reasons set forth herein, Defendants’ Rule 12(b)(6) motion is granted
as to the FDCPA and TCPA claims. Additionally, in light of the issues raised in
Defendants’ Rule 12(c) motion and the Court’s continuing obligation to ensure that
it has subject matter jurisdiction over this matter, the Court construes Defendants’
motion as one requesting dismissal of the remaining claims for lack of subject
matter jurisdiction under Rule 12(b)(1) and grants the motion.
motions for entry of default and to convert Defendants’ motion to a motion for
summary judgment are denied.
Factual and Procedural Background
Prior State Proceedings
In 2007, Mohammad refinanced his mortgage with Quicken Loans in the
amount of $192,000. 2d Am. Compl. ¶ 7, ECF No. 20. At some time thereafter,
Quicken Loans “allegedly”—as Mohammad puts it—assigned or sold Mohammad’s
mortgage to IndyMac Bank, F.S.B. Id. Sometime after the financial downturn in
2008, Mohammad asked IndyMac to refinance his mortgage, but his request was
denied. Id. The bank then filed for foreclosure in Illinois state circuit court on July
15, 2008. Id.; Indymac Bank v. Mohammad, No. 1-13-37778, 2015 WL 3618301, at
*1 (Ill. App. Ct. 2015). Under threat of eviction, Mohammad then moved out of his
house. 2d Am. Compl. ¶ 8.
On July 18, 2008, Mohammad was served with a summons and complaint,
but he never responded. Mohammad, 2015 WL 3618301 at *1. On January 5, 2009,
the Illinois circuit court entered an order of default against Mohammad and entered
a judgment for foreclosure in the bank’s favor. Id. The circuit court found that it
had subject matter and personal jurisdiction and that IndyMac had standing to
maintain the action, and it ordered a judicial sale of the property. Id. On February
1, 2011, the property was sold at a judicial sale. Id. On August 29, 2011, the circuit
court entered an order confirming and approving the judicial sale of the property,
“which marked the final judgment order entered in the foreclosure action.” Id.
After the circuit court’s January 2009 foreclosure judgment, but before the
August 29, 2011 final judicial sale order, Mohammad “papered the court with
multiple . . . motions and petitions making repetitive allegations in an attempt to
vacate the judgment of foreclosure.” Id. “Some of Mohammad’s documents seeking
to vacate the judgment for foreclosure raised challenges to the Bank’s standing to
foreclose on the property and took issue with the court’s subject matter jurisdiction.”
Id. at *1 n.5.
Then, on September 19, 2011, Mohammad filed another motion to declare the
judgment void, “alleging substantially the same arguments as those set forth in his
previous motions to vacate judgment,” including that the bank lacked standing to
foreclose on the home. Id. at *1. On November 8, 2011, the circuit court denied this
On February 8, 2013, Mohammad filed a motion for preliminary injunction,
requesting that the circuit court require the bank to return the original promissory
note to him. Id. at *2. The circuit court struck this motion because Mohammad
failed to appear and, given that the case had been finally decided in 2011,
determined that it lacked subject matter jurisdiction. Id. The court later denied a
motion for reconsideration of this decision on October 29, 2013, and noted that it
would consider imposing sanctions for any future filings of motions. Id.
Mohammad then filed an appeal of the October 29, 2013, motion for
reconsideration with the Illinois appellate court. Id. In that appeal, the appellate
court observed that Mohammad had made “voluminous amounts of baseless
motions and filings in the circuit court that repeatedly made the same
unsubstantiated arguments,” wasting “significant judicial time and resources.” Id.
The appellate court also observed that Mohammad had failed to file a timely notice
of appeal of the circuit court’s November 8, 2011, ruling, which had disposed of
Mohammad’s postjudgment motion as to the August 29, 2011, final order approving
the judicial sale of the property. Id. at *3. “Instead . . ., however, Mohammad spent
the next 15 months bombarding the circuit court with multiple filings of motions
and petitions which repeatedly attacked all of the court’s prior orders on the bases
that the Bank allegedly lacked standing to foreclose on the property and that the
circuit court allegedly lacked subject matter jurisdiction to enter any judgment in
the foreclosure action.” Id. at *4. Because Mohammad had failed to timely appeal
the 2011 final judgment, the appellate court found it lacked jurisdiction to hear his
late appeal. Id.
Claims in this Case 1
The events underlying Mohammad’s claims in this case are as follows.
According to Mohammad, the Office of Thrift Supervision shut down IndyMac in
July 2008 for having committed some unidentified illegality, three days before
IndyMac filed its foreclosure complaint against Mohammad in Illinois state court.
2d Am. Compl. ¶¶ 8, 9.
After initiating its foreclosure proceeding, IndyMac then
acted unlawfully by failing to file with the state court the necessary documents to
prove that it owned the mortgage, and it fraudulently presented a copy of the
promissory note to the property to the court, rather than the original note. Id.
Defendants Johnson-Seck and Swain also conspired with IndyMac to “robo sign”
and file an illegal assignment of the mortgage in the Cook County Recorder of
Deeds. Id. ¶ 10. Moreover, IndyMac deceived the relatively new judge in the state
proceeding and fraudulently prevented the judge from making a clear decision. Id.
Defendant OneWest Bank, F.S.B. (now known as CIT) then acquired the
mortgage from IndyMac, and it knew or should have known about IndyMac’s illegal
behavior. Id. ¶ 10.
In addition to the events in state court, Mohammad alleges that Defendants
called his cell phone on a number of occasions in the more recent past, making the
phone ring, and that, in the most recent call, Defendants failed to leave a message
after Mohammad did not pick up the phone. Id. ¶¶ 13, 23. Mohammad did not
The following facts are taken from Mohammad’s Second Amended Complaint and
are accepted as true on review of Defendants’ motion to dismiss. See Tamayo v.
Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).
consent to these calls, and the calls harassed him.
In his response to
Defendants’ motion to dismiss, he clarifies that the calls were made in 2016 or 2017.
Pl.’s Resp. at 4, ECF No. 4.
Based on these events, Mohammad brings claims of: 1) extrinsic fraud (Count
I); 2) wrongful foreclosure (Count II); 3) violation of the Illinois Deceptive Practices
Act, 815 Ill. Comp. Stat. 505, (Count III); 4) violation of UCC-3-305c (Count IV); 5)
violation of UCC 3-203(b) (Count V); 6) civil conspiracy (Count VI); 7) fraud upon
the state court (Count VII); 8) declaratory and injunctive relief for all claims (Count
VIII); and 9) violation of Fifth Amendment due process rights (Count IX). Finally,
in Counts X and XI, Mohammad alleges violations of the FDCPA and TCPA,
Rules 12(c), 8(a)(2), and 12(b)(6)
Rule 12(c) permits a party to move for judgment on the pleadings where the
complaint and answer have been filed. See Fed. R. Civ. P. 12(c); R.J. Corman
Derailment Servs., LLC v. Int'l Union of Operating Engineers, Local Union 150,
for judgment on the pleadings under Rule 12(c) is governed by the same standards
as a motion to dismiss under Rule 12(b)(6). Adams v. City of Indianapolis, 742 F.3d
720, 727–28 (7th Cir. 2014). A motion under both rules challenges the sufficiency of
the complaint. See Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570
F.3d 811, 820 (7th Cir. 2009); Joao Control & Monitoring Sys., LLC v. Telular Corp.,
173 F. Supp. 3d 717, 723 (N.D. Ill. 2016).
Additionally, as with a motion for
judgment on the pleadings, “documents attached to a motion to dismiss are
considered part of the pleadings if they are referred to in the plaintiff's complaint
and are central to his claim.” Adams, 742 F.3d at 729.
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 Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (citation omitted).
Under federal notice pleading
standards, a plaintiff’s “[f]actual allegations must be enough to raise a right to relief
above the speculative level.” Id.; see also Tamayo v. Blagojevich, 526 F.3d 1074,
1083 (7th Cir. 2008). 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 (2009) (quoting Twombly, 550 U.S. at 570).
“In reviewing the sufficiency of a complaint under the plausibility standard,
[courts] accept the well-pleaded facts in the complaint as true,” Alam v. Miller
Brewing Co., 709 F.3d 662, 665–66 (7th Cir. 2013), and courts must draw all
reasonable inferences in the plaintiff’s favor. See Cole v. Milwaukee Area Tech.
Coll. Dist., 634 F.3d 901, 903 (7th Cir. 2011).
Courts also construe pro se
complaints liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).
A Rule 12(b)(1) motion to dismiss contends that a court lacks subject matter
jurisdiction to adjudicate a claim. Fed. R. Civ. P. 12(b)(1). “The party asserting
jurisdiction bears the burden of establishing that it exists.” Montgomery v. Markel
Int'l Ins. Co. Ltd., 259 F. Supp. 3d 857, 861 (N.D. Ill. 2017) (citing Farnik v.
F.D.I.C., 707 F.3d 717, 721 (7th Cir. 2013)).
jurisdiction can be either “facial” or “factual.”
Challenges to subject matter
See Apex Digital, Inc. v. Sears,
Roebuck & Co., 572 F.3d 440, 443–44 (7th Cir. 2009).
In a factual challenge, “[t]he district court may properly look beyond the
jurisdictional allegations of the complaint and view whatever evidence has been
submitted on the issue to determine whether in fact subject matter jurisdiction
exists.” Id. (citation omitted). “[N]o presumptive truthfulness attaches to plaintiff's
allegations,” and the Court is “free to weigh the evidence and satisfy itself as to the
existence of its power to hear the case.” Id. (citation omitted); see also Garcia v.
Farmers Ins. Exch., 121 F.Supp.2d 667, 668 (N.D. Ill. 2000) (“The presumption of
correctness . . . accord[ed] to a complaint's allegations on the jurisdictional issue
falls away once a defendant proffers evidence that calls the court’s jurisdiction into
Defendants seek judgment on the pleadings, based on the Rooker-Feldman
doctrine or res judicata, as to all of Mohammad’s claims related to events
surrounding the state foreclosure proceedings. Defendants also seek dismissal of
Mohammad’s TCPA and FDCPA claims on the basis that they fail to satisfy Rule 8
In response, Mohammad contends that these doctrines are not operative
because Defendants are not the rightful owner and possessor of the mortgage.
Because of this, Mohammad argues, they lacked standing to bring suit in state
court, and the state court therefore lacked jurisdiction to render any decision.
As a threshold matter, Defendants’ motion for judgment on the pleadings is
premature because they have not yet filed an answer. See R.J. Corman, F.3d at
645. Accordingly, the typical course would be to construe Defendants’ motion for
judgment on the pleadings as a 12(b)(6) motion to dismiss. See, e.g., Arch Ins. Co. v.
Stone Mountain Access Sys., Inc., No. 16 C 514, 2016 WL 3671466, at *3 (N.D. Ill.
July 11, 2016); Seber v. Unger, 881 F. Supp. 323, 325 (N.D. Ill. 1995).
Here, however, the basis for Defendants’ Rule 12(c) motion is that
Mohammad’s claims related to his state foreclosure proceedings are barred by res
Additionally, in their reply, Defendants assert that, under the Rooker-
Feldman doctrine, the Court lacks subject matter jurisdiction over these claims
because the claims challenge the final state court judgment in the foreclosure
Defendants’ arguments implicate the Court’s subject matter
jurisdiction, and the Court must consider Rooker-Feldman arguments before res
judicata. 2 See Garry v. Geils, 82 F.3d 1362, 1364–65 & n.3 (7th Cir. 1996) (applying
Moreover, “[i]f Rooker–Feldman applies, [federal courts] lack jurisdiction to
consider” whether res judicata applies. 4901 Corp. v. Town of Cicero, 220 F.3d 522, 527
(7th Cir. 2000) (citing Geils, 82 F.3d at 1365 (7th Cir. 1996); Centres, Inc. v. Town of
Brookfield, Wis., 148 F.3d 699, 703 (7th Cir. 1998)); see also, e.g., Frances v. Fed. Nat.
the Rooker-Feldman doctrine where defendant had made res judicata argument
instead and stating that subject matter jurisdiction “can be raised at any time, by
either party”); Long v. Shorebank Dev. Corp., 182 F.3d 548, 553 (7th Cir. 1999)
(“Because the Rooker-Feldman doctrine is jurisdictional in nature, its applicability
must be determined before considering the defendants’ arguments regarding the
applicability of res judicata.”).
For these reasons, the Court construes Defendants’ Rule 12(c) motion as a
factual challenge to the Court’s jurisdiction over these claims under Rule 12(b)(1).
See Toyos v. Northwestern Univ., No. 01 C 5407, 2002 WL 252731, at *1 (N.D. Ill.
Feb. 21, 2002) (construing 12(b)(6) motion as Rule 12(b)(1) motion for lack of
jurisdiction); Parker v. Ind. High Sch. Athletic Ass’n, No. 09 CV 885, 2009 WL
4806943, at *2 n.2 (S.D. Ind. Dec. 2, 2009) (same); see also See Acevedo v.
CitiMortage, Inc., No. 11 C 4877, 2013 WL 1283807, at *2 (N.D. Ill. Mar. 26, 2013)
(considering a 12(b)(1) motion based on Rooker-Feldman as a factual challenge to
subject matter jurisdiction).
Accordingly, the Court will proceed to consider whether it has subject matter
jurisdiction over Counts I–IX under Rule 12(b)(1), as well as Defendants’ motion to
dismiss Counts X and XI (the FDCPA and TCPA claims) under Rule 12(b)(6).
Claims Barred by the Rooker-Feldman Doctrine
Mortg. Ass’n, No. 14 CV 00288, 2014 WL 2109892, at *2 (N.D. Ill. May 20, 2014) (“The
Seventh Circuit has repeatedly instructed . . . that ‘where Rooker–Feldman applies, the res
judicata claim must not be reached.’”) (quoting Geils, 82 F.3d at 1365).
Under the Rooker-Feldman doctrine, federal district courts lack subject
matter jurisdiction over claims that seek to directly challenge a state court
judgment (a “de facto appeal”) or that seek to redress injury that was allegedly
caused by the state court judgment. Jakupovic v. Curran, 850 F.3d 898, 902 (7th
Cir. 2017) (citing Rooker v. Fidelity Trust Co., 263 U.S. 413, 415–16 (1923); D.C.
Court of Appeals v. Feldman, 460 U.S. 462, 482–86 (1983)). However, where the
claim “alleges an independent prior injury that the state court failed to remedy,”
Rooker-Feldman does not bar the claim. Id.
It is well-established that claims that seek review of a state court foreclosure
judgment in federal court are barred by the Rooker-Feldman doctrine. See Nora v.
Residential Funding Co., LLC, 543 F. App'x 601, 602 (7th Cir. 2013) (stating that
Rooker-Feldman bars “asking a federal district court to review and reject the state
court's judgment of foreclosure of [plaintiff’s] property”); Frances v. Fed. Nat. Mortg.
Ass’n, No. 14 CV 00288, 2014 WL 2109892, at *1 (N.D. Ill. May 20, 2014) (stating
that Rooker-Feldman barred claims that would “invite this Court to invalidate, or
negate” the state foreclosure judgment); see also, e.g., Lietha v. Bank of Am., N.A.,
No. 14 CV 442, 2015 WL 1457428, at *4 (W.D. Wis. Mar. 30, 2015) (“[Plaintiff]
unambiguously asks this court to set aside the state court's judgment of foreclosure
on his residence. This is precisely the type of review that Rooker–Feldman
prohibits.”) (citing Crawford v. Countrywide Home Loans, Inc., 647 F.3d 642, 646–
47 (7th Cir. 2011); Taylor v. Fed. Nat’l Mortg. Ass’n, 374 F.3d 529, 533 (7th Cir.
Additionally, “a request for review of a state-court foreclosure decision that
includes a claim for damages based on charges of defrauding the state court” is not
an allegation of independent injury but rather seeks to redress injury allegedly
caused by the state court judgment. Nora, 543 F. App'x at 602. “[A]llegations of
fraud and conspiracy [surrounding state foreclosure proceedings] fit the mold of the
general rule.” Id.; see also Taylor, 374 F.3d at 534 (stating that claims for “extrinsic
fraud and fraud on a court” allege injuries that “arose not from an independent
violation of [a plaintiff’s] rights but from the extrinsic fraud upon the state court
and intentional deprivation of her property that [plaintiff] claims occurred due to
Finally, if a court determines that a claim seeks to redress injury caused by a
state court judgment, “then [it] must determine whether the plaintiff had
a reasonable opportunity to raise the issue in state court proceedings. If so, the
claim is barred [by Rooker-Feldman].” Jakupovic, 850 F.3d at 902.
Wrongful Foreclosure and Fifth Amendment Claims
Count II for wrongful foreclosure and Count IX for violation of Fifth
Amendment due process explicitly ask the Court to overturn the Illinois state
court’s foreclosure judgment, see 2d Am. Compl. ¶¶ 15, 22, and therefore are barred
See, e.g., Nora, 543 F. App’x at 602; Frances, 2014 WL
2109892, at *1.
Although Mohammad argues that the state court lacked jurisdiction because
Defendants are (he contends) not the rightful mortgage owners, the Illinois
appellate court found that he had a reasonable opportunity to make this argument
several times: first, when Defendants brought the foreclosure action and he failed to
appear, and then on appeal—but he failed to timely file an appeal. 3 Mohammad,
2015 WL 3618301, at *1–4; see also Bartucci v. Wells Fargo Bank N.A., No. 14 CV
5302, 2016 WL 1161283, at *5 (N.D. Ill. Mar. 24, 2016) (citing 735 Ill. Comp. Stat.
5/15–1508(b) for the proposition that the plaintiff “was entitled to raise any claims
as to fraud in the state foreclosure action”); Byrd v. Homecomings Fin. Network, 407
F. Supp. 2d 937, 945 (N.D. Ill. 2005) (“[Plaintiff] could have raised any claim that
[defendant] violated Illinois common law or the Illinois Consumer Fraud and
Deceptive Business Practices Act during the state court foreclosure proceedings.”).
Therefore, because the Court lacks subject matter jurisdiction over these
claims, Defendants’ motion to dismiss Counts II and IX is granted.
Claims Based on Injury from the State Court Judgment
The remainder of Mohammad’s claims related to the state foreclosure
proceedings are also barred by the Rooker-Feldman doctrine. Count I alleges that
Defendants committed fraud by filing incomplete mortgage assignments with the
Cook County Recorder of Deeds, filing an incomplete foreclosure complaint, and
presenting a copy of a promissory note while pretending it was original. According
to Mohammad, these fraudulent acts “prevent[ed] the [state court] judge from
making a correct and true decision in the case.” See 2d Am. Compl. ¶¶ 1, 14. The
same conduct, Mohammad alleges, gives rise to the claims asserted in Counts III,
What is more, the Seventh Circuit has declined to recognize a fraud-based exception
to the Rooker-Feldman doctrine. See Iqbal v. Patel, 780 F.3d 728, 729 (7th Cir. 2015).
IV, and VI (respectively, a violation of the Illinois Deceptive Practices Act, see id. ¶
16, “UCC 3-305c,” id. ¶ 17, and a civil conspiracy, id. ¶ 19).
In much the same vein, in Count V, which alleges a violation of UCC 3203(b), and Count VII, which alleges fraud upon the court, Mohammad contends
that Defendants “robo sign[ed]” and filed an illegal mortgage assignment and
refused to produce the original promissory note in the state court. Id. ¶¶ 10–13, 18,
20. As to each of these Counts, Mohammad contends that the Rooker-Feldman
doctrine does not apply because he does not seek reversal of the state judgment and
because he alleges that the Defendants, rather than the judgment, caused him
harm. Pl.’s Surreply at 6, ECF No. 93.
But the gravamen of the allegations in these claims “is that the judgment of
foreclosure entered by the state court was procured by the misconduct, fraud, and
deceptive acts of [Defendants] in the course of that proceeding[, and] . . . [a]ll of
[these] claimed damages flow from entry of the foreclosure judgment.” Accordingly,
they, too, are barred by the Rooker-Feldman doctrine.
See Frances, 2014 WL
2109892, at *1 (citing Taylor, 374 F.3d at 533–34; Geils, 82 F.3d at 1368–69); Nora,
543 F. App’x at 602 (stating that “allegations of fraud and conspiracy” surrounding
the foreclosure proceedings are barred). For these reasons, the Court concludes that
the Rooker-Feldman doctrine precludes Mohammad from pursuing Counts I, III, IV,
V, VI, and VII here, and Defendants’ motion to dismiss these claims is granted.
Count VIII (Declaratory and Injunctive Relief)
In Count VIII, Mohammad seeks declaratory and injunctive relief. 2d Am.
Compl. ¶ 21. Because Mohammad does not state an independent cause of action in
this Count, it appears that Mohammad’s intention is to seek this relief based upon
all of the other Counts. Therefore, the Court, sua sponte, dismisses Count VIII for
failure to state an independent claim upon which relief can be granted. See, e.g.,
TABFG, LLC v. Pfeil, No. 08 C 6979, 2009 WL 1209019, at *3 (N.D. Ill. May 1, 2009)
(dismissing claim, sua sponte, for failure to state a claim).
Count X: FDCPA Claims
In Count X, Mohammad alleges that Defendants have harassed him by
making phone calls to him, despite his request for them to stop. 2d Am. Compl. ¶
Defendants have also made Mohammad’s phone ring, without leaving a
message. Id. According to Mohammad, this violates 15 U.S.C. §§ 1692d(5) and d(6);
1692e; and 1692f. Id.
Defendants contend that Mohammad alleges insufficient facts to state a
claim and that the alleged facts fail to provide adequate notice as to which of the
Defendants called Mohammad. Defs.’ Mot. at 7–9. Additionally, Defendants argue
that the complaint fails to allege that: 1) they were calling in collection of a debt; 2)
CIT called with intent to harass Mohammad; and 3) Defendants are debt collectors
within the meaning of the statute. Id. Finally, Defendants argue that the FDCPA
claim should be dismissed as to all Defendants because it is time-barred. Id. at 8.
The Court agrees that Mohammad has failed to allege sufficient facts to
plausibly suggest that Defendants were contacting him in connection with collection
of a debt, as is required by 15 U.S.C. §§ 1692d; 1692e; and 1692f. “A communication
is made in connection with the collection of a debt” if “the unsophisticated consumer
recognizes [the communication] as such.” Ruth v. Triumph P'ship, 577 F.3d 790, 798
(7th Cir. 2009). Several courts in this district have found that the FDCPA “reaches
actions taken in connection with foreclosure proceedings.” Saccameno v. Ocwen
Loan Servicing, LLC, No. 15 C 1164, 2015 WL 7293530, at *5 (N.D. Ill. Nov. 19,
2015) (citing Kabir v. Freedman Anselmo Lindberg, LLC, No. 14 C 1131, 2015 WL
4730053, at *3 (N.D. Ill. Aug. 10, 2015)).
But Mohammad’s complaint states nothing about the alleged purpose of
Defendants’ calls, which he asserts occurred at least three years after the
foreclosure proceedings had concluded. 2d Am. Compl. ¶ 23; see Pl.’s Resp. at 4,
ECF No. 4 (stating that the alleged calls occurred in 2016 or later). And, although
Defendants raised this argument in their motion, Mohammad has provided no
Pl.’s Resp. at 4, ECF No. 54.
Further, alternative explanations for
Defendants to have called Mohammad in 2016 or 2017 are far more plausible, such
as the need to communicate with him with regard to the present litigation. Given
the above, and even construing the complaint liberally in Mohammad’s favor, the
Court cannot conclude, without some further factual support in his complaint, that
Mohammad has plausibly alleged that Defendants contacted him in connection with
the collection of a debt within the meaning of the statute. As this is a threshold
requirement for each of Mohammad’s claims under 15 U.S.C. § 1692, see Gburek v.
Litton Loan Servicing LP, 614 F.3d 380, 384 (7th Cir. 2010), Defendants’ motion to
dismiss each of the FDCPA claims is granted. See Asufrin v. Roundpoint Mortg.
Servicing Corp., No. 15 C 9077, 2016 WL 1056669, at *6 (N.D. Ill. Mar. 17, 2016)
(granting motion to dismiss FDCPA claim where plaintiff failed to plausibly allege
that defendant’s communications were made in connection with a debt collection);
Preuher v. Seterus, LLC, No. 14 C 6140, 2014 WL 7005095, at *2 (N.D. Ill. Dec. 11,
What is more, Mohammad’s claims under §§ 1692(d)(6), 1692e, and 1692f fail
for additional reasons. For example, 15 U.S.C. § 1692d(6) prohibits “the placement
of telephone calls without meaningful disclosure of the caller’s identity.”
Defendants observe, Mohammad fails to allege any facts indicating that Defendants
did not disclose their identity in their alleged calls. He alleges only that the calls
made his phone ring, but he did not answer and the caller did not leave a message.
This is insufficient to state a claim under that provision.
See Mino v. Credit
Protection Ass’n, LP, No. 12 CV 1446, 2013 WL 4039453, at *2–4 (S.D. Ind. Aug. 7,
2013) (requiring plausible allegation of this element on a motion to dismiss).
Along similar lines, 15 U.S.C. § 1692e prohibits a debt collector from “using a
false deceptive, or misleading representation or means in connection with the
collection of any debt.” Although Mohammad alleges that he received phone calls,
he does not allege any facts about the contents of the phone call. Therefore, he fails
to state a claim under § 1692e for this additional reason.
See Bednarkski v.
Potestivo & Assocs., P.C., No. 16 CV 02519, 2017 WL 896777, at *3–4 (N.D. Ill. Mar.
7, 2017) (requiring plausible allegation of this element on a motion to dismiss).
Finally, Mohammad does not allege that Defendants have engaged in any of
the numerous activities prohibited by § 1692f. And so Mohammad’s allegations are
insufficient to state a claim under this provision on this basis as well.
Count XI: TCPA Claim
In Count XI, Mohammad alleges that Defendants violated the TCPA by
calling him without his express consent. Defendants contend that Mohammad fails
to state a claim because he does not identify against which Defendant the claim is
asserted and because he does not allege that the calls were made using an
“automatic telephone dialing system or an artificial or prerecorded voice.” 4 U.S.C.
The Court agrees that Mohammad has not presented facts
suggesting that an automatic dialing system was used and, therefore, grants
Defendants’ motion to dismiss Mohammad’s TCPA claim. See Sterk v. Path, Inc.,
No. 13 C 2330, 2013 WL 5460813, at *2 (N.D. Ill. Sept. 26, 2013) (stating that a
complaint, to survive a motion to dismiss, needs to suggest an automatic dialing
system was used); Torres v. Nat’l Enter. Sys., Inc., No. 12 C 2267, 2012 WL
3245520, at *3 (N.D. Ill. Aug. 7, 2012) (same).
Motion for Entry of Default
Next, Mohammad has filed two motions for entry of default. ECF Nos. 34,
93. In an order dated February 22, 2017, ECF No. 32, the Court denied the same
motion, ECF No. 27, for the reasons stated on the record. For the same reasons
stated during the February 22, 2017 hearing, Mohammad’s motions for entry of
default are denied.
Motion to Convert Defendants’ Motion to a Motion for Summary
Finally, Mohammad moves to convert Defendants’ motion to dismiss to a
motion for summary judgment because Defendants’ briefing refers to certain
information contained in records of Mohammad’s state foreclosure proceedings. See
ECF No. 93 at 3–4. However, that information is relevant only to Defendants’ Rule
12(b)(1) motion, and the Court “may properly . . . view whatever evidence has been
submitted on the issue to determine whether in fact subject matter jurisdiction
exists,” without converting Defendants’ motion to a motion for summary judgment.
See Apex Digital, 572 F.3d at 443–44. Mohammad’s motion is therefore denied.
For the reasons stated herein, Counts I through VII, IX and X are dismissed
for lack of subject matter jurisdiction. Count VIII, which provides no independent
basis for a claim but consists entirely of a request for declaratory and injunctive
relief, is dismissed sua sponte. Defendants’ Rule 12(b)(6) motion  to dismiss
Counts X and XI is granted without prejudice. Mohammad’s motions for entry of
default   are denied, as is his motion  to convert Defendants’ motion to
dismiss to a motion for summary judgment. If Mohammad wants to proceed with
this lawsuit, he must submit an amended complaint by April 2, 2018, that comports
with the rulings herein. Failure to file an amended complaint by that date will
result in dismissal of this case.
IT IS SO ORDERED.
John Z. Lee
United States District Judge
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