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

Filing 49

MEMORANDUM Opinion and Order Signed by the Honorable John J. Tharp, Jr on 11/9/2018. Mailed notice(air, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DONALD J. KINSELLA and
JULIE A. KINSELLA,
Plaintiffs,
v.
CAPITAL ONE, N.A.,
Defendant.

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No. 17 C 05236
Judge John J. Tharp, Jr.

MEMORANDUM OPINION AND ORDER
Plaintiffs Donald and Julie Kinsella allege that Capital One misrepresented itself as the
proper party to foreclose on the Kinsellas’ mortgage in order to fraudulently induce the Kinsellas
to negotiate with Capital One to resolve the foreclosure matter. Capital One responds that by
acquiring ING Bank—the bank that held the Kinsellas’ mortgage—Capital One became ING’s
successor in interest and was entitled to foreclose on the mortgage; hence, there was no
misrepresentation. The Court takes judicial notice of an Office of Comptroller of the Currency
certification of merger showing that Capital One acquired ING, which disallows as a matter of law
any plausible inference that Capital One lied about being the proper plaintiff in the foreclosure
matter. The Kinsellas attempt to change their theory in their briefs, but that effort only highlights
the implausibility of a claim predicated on Capital One’s actions. The Amended Complaint is
therefore dismissed.

BACKGROUND1
ING Bank, FSB (“ING”) initiated a foreclosure action against the Kinsellas in 2012. The
Circuit Court of Will County (“Circuit Court”) entered a default judgment and order of foreclosure
later that year. Am. Compl., ECF No. 30, ¶¶ 3–4. Consistent with those orders, ING scheduled a
sheriff’s sale of the underlying property for March of 2013. Id. ¶ 5. The day before the scheduled
sale, however, the Circuit Court entered an order vacating the default judgment and withdrawing
the sheriff’s sale. Id. ¶ 8. For reasons unexplained, the sale nevertheless proceeded as scheduled,
and ING submitted a successful bid at half the value of the mortgage. Id. ¶ 9. Although the sale
was recorded with the Will County Recorder of Deeds (“Recorder’s Office”), the Kinsellas were
not aware of or given notice of the sale at the time. Id. ¶¶ 10–11. The certificate of sale that was
recorded is a publicly available document that is reviewed by credit reporting agencies, lenders,
and appraisers to determine a borrower’s creditworthiness and determine appraisal values. Id. ¶ 12.
In July of 2013, ING, having become aware that the foreclosure sale had proceeded in violation of
the Circuit Court’s order, moved to void the sale. Id. ¶¶ 13–14. The Court entered an order voiding
the foreclosure sale, but the order voiding the sale was not recorded with the Recorder’s Office.
Id. ¶¶ 15–16. The Kinsellas allege that ING’s failure to record the order voiding the sale harmed
the Kinsellas’ ability to obtain a loan modification and lowered subsequent appraisal values of the
property. Id. ¶¶ 17.
ING filed a motion with the Circuit Court in September of 2013 to substitute Capital One,
N.A. as the plaintiff based on Capital One’s 2012 acquisition of ING. Id. ¶¶ 20–21; see also Def.’s
Mem. of Law in Supp. of its Mot. to Dismiss Pls.’ Am. Compl., Ex. A, ECF No. 34-1, Office of

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As this is a motion to dismiss, the Court accepts all well-pleaded facts as true and
construes all inferences in favor of the plaintiff. Zemeckis v. Global Credit & Collection Corp.,
679 F.3d 632, 634 (7th Cir. 2012).
2

the Comptroller of the Currency Certification of National Bank Merger (“Certification of
Merger”). So far as the record in this case reveals, the state court never ruled on that motion, but
thereafter Capital One filed pleadings in the foreclosure case as “Capital One, N.A., as Successor
by Merger to ING, Bank FSB,” including a motion for summary judgment that was granted in June
of 2015 and resulted in another foreclosure sale order. Id. ¶¶ 22–24, 26–28. In or around August
of 2015, during negotiations with Capital One for a loan modification, the Kinsellas became aware
of the second foreclosure order. Id. ¶ 32. The Kinsellas filed an emergency motion to vacate the
order, which was granted in November of 2015. Id. ¶¶ 33–34.
In a letter dated December 8, 2016, Capital One identified itself as the “Servicer of” and
“Investor on” the loan (as opposed to the “Holder of the Note”) and notified the Kinsellas that they
were approved for a loan reinstatement or modification. Id. ¶¶ 36–37, 45; see also Am. Compl.,
Ex. 3, ECF No. 30-3, Letter from Capital One to Donald J. Kinsella, Dec. 8, 2016. The Kinsellas
allege that they did not receive the letter until January 12, 2017, by which time the offer contained
therein had expired. Am. Compl. ¶ 38. Throughout the pendency of the foreclosure matter, the
Kinsellas have been negotiating with Capital One to obtain a loan modification, to discuss
refinancing options, and to request the paperwork necessary to conduct a short sale of the property.
Id. ¶ 29. The Kinsellas say that they were notified on multiple occasions that they had been
approved for a loan modification, but Capital One refused to provide the approved loan
modification terms, saying that it was merely the servicer of the loan. Id. ¶¶ 30–31.
The Kinsellas allege that Capital One falsely represented itself as the proper foreclosure
plaintiff both to induce the Kinsellas to continue negotiating with Capital One regarding the
foreclosure matter and to obtain judgment against them. Id. ¶¶ 43, 46. The Kinsellas allege that
they relied on those representations while attempting to obtain a loan modification and resolve the

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foreclosure matter, which prevented them from selling the home or refinancing or modifying the
loan, damaged their credit rating, and diminished the value of their home. Id. ¶¶ 44, 47.
In May 2017, the Kinsellas filed this action in the Circuit Court of Will County, Illinois.
Notice of Removal, Ex. A, Compl., ECF No. 1-1. Capital One removed the case to this Court,
premised on diversity jurisdiction.2 Notice of Removal, ECF No. 1. The Kinsellas filed, but
subsequently abandoned, a remand motion premised on the relationship between this case and the
long-running state foreclosure action, ECF Nos. 20, 32, instead filing the Amended Complaint on
which this case now proceeds, ECF No. 30.
DISCUSSION
I.

Pleading Standard
Prevailing federal pleading standards require complaints to contain allegations that, if taken

as true, plausibly suggest that the plaintiff is entitled to relief. Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555–56 (2007). And to prevail on a common law fraud claim under Illinois law, 3 a plaintiff
must show that 1) the defendant made a false statement of material fact; 2) the defendant knew the
statement was false; 3) the defendant intended that the false statement induce the plaintiff to act;
4) the plaintiff relied on the truth of the statement; and 5) the plaintiff suffered damages resulting
from reliance on the statement. Connick v. Suzuki Motor Co., 675 N.E.2d 584, 591 (Ill. 1996). To
survive a motion to dismiss, however, a plaintiff is not obligated to plead “facts that bear on the
2

Defendant Capital One is a citizen of Delaware and Virginia. Am. Compl. ¶ 2. The
Kinsellas’ complaints plead only that the plaintiffs are residents of Illinois, but the removal notice
asserts, without contradiction by the plaintiffs, that they are citizens of Illinois. Notice of Removal,
ECF No. 1, ¶ 7. Accordingly, and in view of the nature of this case, which involves a long-running
foreclosure action involving the residence where the plaintiffs continue to reside, the Court is
satisfied that there is diversity of citizenship between the parties. The complaints plead that
damages are in excess of $500,000. Notice of Removal, Ex. A, Compl, ECF No. 1-1, ¶ 47; Am.
Compl., ECF No. 30, at 5.
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The parties do not suggest that the law of any other jurisdiction applies.
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statutory elements of a claim. Instead, the Federal Rules of Civil Procedure require plaintiffs to
plead claims rather than facts corresponding to the elements of a legal theory.” Rowlands v. United
Parcel Serv. - Fort Wayne, 901 F.3d 792, 800 (7th Cir. 2018) (emphasis in original) (internal
citation and quotations omitted). Ordinarily, a complaint need contain only allegations sufficient
to show that there is “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). When a claim sounds in fraud, however, it is subject to the
heightened pleading standard set forth in Federal Rule of Civil Procedure 9(b). Newman v. Metro.
Life Ins. Co., 885 F.3d 992, 998 (7th Cir. 2018) (“[C]ommon-law and statutory fraud claims must
be pleaded with the detail required under Rule 9(b)’s heightened standard.”). Under Rule 9(b), “a
party must state with particularity the circumstances constituting fraud.” See also Borsellino v.
Goldman Sachs Group, Inc., 477 F.3d 502, 507 (7th Cir. 2007) (“This heightened pleading
requirement is a response to the great harm to the reputation of a business firm or other enterprise
a fraud claim can do.”) (internal quotations omitted). A plaintiff must state the “who, what, when,
where, and how” of the fraudulent conduct. Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 569
(7th Cir. 2012). To satisfy Rule 9(b), the factual allegations must present “a sufficiently detailed
and cohesive theory of the fraud.” Webb v. Frawley, No. 18-1607, 2018 WL 4924354, at *8 (7th
Cir. Oct. 11, 2018) (affirming dismissal of complaint that failed to allege specifics of the allegedly
fraudulent misrepresentations or provide an explanation for how they furthered the objectives of
the alleged scheme).
II.

The Alleged Fraud
As the Court understands the Amended Complaint, the Kinsellas claim that they were

defrauded because Capital One falsely represented itself as “the proper party plaintiff in the
foreclosure matter.” Am. Compl. ¶ 44. The purpose of this ruse, they allege, was to obtain a default

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judgment against the Kinsellas by inducing them to negotiate with Capital One concerning
modification of the loan or a short sale of the property—efforts that were doomed to fail, they
contend, because as Capital One then explained, it could not renegotiate the loan terms because it
was only the servicer of the loan rather than the note holder. As a result, the Kinsellas allege that
they were prevented from selling or refinancing the home, the appraised value of the home
declined, and their credit rating suffered. These allegations founder, however, because it is clear
that Capital One is “the proper party” in the foreclosure matter.
Recognizing as much, the Kinsellas have in their briefs essentially flipped their theory on
its head. In defending the Amended Complaint, the Kinsellas now concede that Capital One “had
the sole authority to negotiate and resolve the foreclosure action [and that] any statements to the
contrary made by the Defendant to the Plaintiff [sic] were simply not true.” Pls.’ Resp. to Def.’s
Mot. to Dismiss Am. Compl. (“Resp.”), ECF No. 41, at 5. In other words, the alleged
misrepresentation that the Kinsellas now assert is Capital One’s alleged statement that it was only
the loan servicer and had no authority to grant a loan modification. That about-face comes too late,
but even were it permissible, the Kinsellas’ revised theory would still fall well short of stating “a
sufficiently detailed and cohesive theory of the fraud,” Webb, supra, to satisfy the requirements of
Rule 9(b).
A.

Appropriate Foreclosure Plaintiff

To begin, to the extent that the Amended Complaint rests on the premise that Capital One
misrepresented itself as “the proper party” to enforce the terms of the Kinsellas’ mortgage loan, it
fails as a matter of law. The Kinsellas concede that ING, the original noteholder, merged into
Capital One in 2012, Resp., ECF No. 41, at 2, and this Court takes judicial notice of the U.S.
Treasury Department’s Office of the Comptroller of the Currency Certification of National Bank

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Merger (“Certification of Merger”) showing that Capital One acquired ING in 2012, Def.’s Mem.
of Law in Supp. of its Mot. to Dismiss Pls.’ Am. Compl., Attach. A, ECF No. 34-1, Office of the
Comptroller of the Currency Certification of National Bank Merger. Federal Rule of Evidence
201(b) allows a court to “judicially notice a fact that is not subject to reasonable dispute because
it can be accurately and readily determined from sources whose accuracy cannot reasonably be
questioned.” Judicial notice may be taken of facts contained in reports of administrative bodies,
such as the Treasury Department’s Office of Comptroller of the Currency. See Menominee Indian
Tribe of Wisconsin v. Thompson, 161 F.3d 449, 456 (7th Cir. 1998) (“Judicial notice of historical
documents, documents contained in the public record, and reports of administrative bodies is
proper.”). Taking judicial notice of the Certification of Merger is particularly appropriate here
given that Capital One’s status vis-à-vis ING is central to the Kinsellas’ fraud claim, with the
merger specifically referred to in paragraphs 21 through 27 of the Amended Complaint. See
Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690 (7th Cir. 2012) (“It is well settled
that in deciding a Rule 12(b)(6) motion, a court may consider documents attached to a motion to
dismiss . . . if they are referred to in the plaintiff’s complaint and are central to his claim.”) (citing
Wright v. Assoc. Ins. Cos. Inc., 29 F.3d 1244, 1248 (7th Cir. 1994)) (internal quotations omitted).
Capital One became ING’s successor in interest with respect to the mortgage when the
merger was consummated. See 735 ILCS 5/15-1208 (“‘Mortgagee’ means . . . any person claiming
through a mortgagee as successor.”); see also Olympic Fed. v. Whitney Dev. Co., 447 N.E.2d 1371,
1378 (Ill. App. Ct. 1983) (holding that successor by merger to mortgage “properly established
itself as the current owner of the note and mortgage”). As ING’s successor in interest, Capital One
had no duty of which the Court is aware—or to which the Kinsellas have pointed—to assign the
mortgage from ING to Capital One. Instead, the transfer of the mortgage occurred by operation of

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law when the merger was consummated. See Standard Bank & Tr. Co. v. Madonia, 964 N.E.2d
118, 123 (Ill. App. Ct. 2011) (“Because the original mortgagee merged with a bank that ultimately
merged with Standard Bank, Standard Bank succeeded to the mortgage rights possessed by the
original mortgagee . . . as a matter of law.”).
A successor in interest to a mortgage has the right to exercise its rights and privileges with
respect to that mortgage, including foreclosing on a homeowner in default. See Olympic Fed., 447
N.E.2d at 1378 (holding that a “merged savings and loan association . . . is an ongoing entity that
retains all of its liabilities, rights, and interests in property without the need for a transfer”).
Another court has found specifically with respect to the ING-Capital One merger that evidence of
the Capital One-ING merger properly established a chain of ownership of a mortgage. See In re
Jackson, No. 10-11716-MSH, 2013 WL 6903752, at *5–7 (Bankr. D. Mass. Dec. 31, 2013). No
assignment of mortgage needed to take place because Capital One became ING’s successor in
interest as a matter of law as of the merger. Considering the Amended Complaint in light of the
Certification of Merger, there is no plausible basis upon which to conclude that Capital One
misrepresented that it was the proper plaintiff to prosecute the foreclosure action. The Kinsellas
certainly offer none; indeed, they concede in their Response that “as early as November 1, 2012,
the defendant had sole authority to negotiate and resolve the foreclosure action.” ECF No. 41, at
5; see also id. at 4 (acknowledging that Capital One “may be able to show that, subsequent to its
acquisition of ING, [it] was the appropriate party to pursue the foreclosure action against the
Plaintiffs and therefore did not lie in open court about its status”).4 The Court concurs that it is

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In their Surreply, the Kinsellas take issue with Capital One’s characterization of this
statement as a concession. They ignore, however, their unequivocal statement that “as early as
November 1, 2012, the defendant had sole authority to negotiate and resolve the foreclosure
action.” ECF No. 41, at 5.
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implausible to infer that Capital One misrepresented its right to enforce the mortgage against the
Kinsellas.5
B.

Approval for Loan Modification

The Kinsellas also allege that Capital One identified itself as the servicer of and investor
in the loan rather than the holder of the note. Am. Compl. ¶¶ 31, 37, 45. As presented in the
Amended Complaint, the Kinsellas seem to allege that these statements about the bank’s lack of
authority were true and that the fraud lay with the bank’s claim that it was the legal successor to
the rights of ING as the original mortgagee. Persisting in the position that Capital One’s
representations regarding its lack of authority with respect to the mortgage were true, however,
would preclude the Kinsellas from asserting fraud based on Capital One’s failure to grant them
loan modifications: If Capital One were telling the truth when it said it could not grant a
modification, there could be no fraud claim arising from its failure to grant such a modification.
Accordingly, the Kinsellas have done an about-face with respect to their fraud allegations; now
they argue that any statements by the bank that it did not have authority to modify the terms of the
loan were fraudulent.
As an initial matter, there are no such fraudulent misstatements adequately alleged in the
Amended Complaint. There are only three paragraphs in which there are any references to Capital

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Having found that Capital One’s statements about its right to enforce the mortgage were
not misstatements, the Court need not address the applicability of Illinois’s absolute litigation
privilege, which affords immunity to litigants for statements made in connection with litigation.
Steffes v. Stepan Co., 144 F.3d 1070, 1074 (7th Cir. 1998). But the Court notes that the litigation
privilege would likely shield some or all of Capital One’s statements—depending on the nexus
between those statements and the underlying foreclosure litigation—from giving rise to a fraud
claim. Cf. Kurczaba v. Pollock, 742 N.E.2d 425, 438 (Ill. App. Ct. 2000) (stating that litigation
privilege was available in libel context if statement “was made in a judicial proceeding; had some
connection or logical relation to the action; was made to achieve the objects of the litigation; and
involved litigants or other participants authorized by law”) (internal citation and quotations
omitted).
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One’s role as servicer of the loan. The first appears in paragraph 31, where the Kinsellas allege
only that Capital One “refused and failed to provide” terms of the approved loan modifications,
“stating that they were servicers of the loan.” Rule 9(b) requires plaintiffs to provide the “who,
what, when, where, and how” as to allegedly fraudulent misstatements, Wigod, 673 F.3d at 569,
but these allegations fail to provide anything more than a bare summary of what was said and no
information about when the conversation occurred, who was involved, or when it took place. This
communication has not been pleaded with particularity and cannot serve as the basis of a fraud
claim.
The other two references, in paragraphs 37 and 45, relate to a letter dated December 8,
2015, from Capital One to the Kinsellas and do not suffer from the same particularity problem.
Nevertheless, those references cannot support a fraud claim because there is no inconsistency
between Capital One’s status as note holder, investor, and loan servicer; one relationship does not
preclude the others. Indeed, the letter in which Capital One identified itself as the investor in and
servicer of the loan is same the letter in which Capital One approved the Kinsellas for a
reinstatement or modification of the loan. Am. Compl. ¶¶ 36–37. Moreover, it is evident on the
face of the December 8 letter that Capital One is the entity that approved the loan modification
options offered to the Kinsellas; Capital One clearly was in a position to grant loan modifications
regardless of the label used to describe its relationship to the mortgage. See Am. Compl., Ex. 3,
ECF No. 30-3, at 1 (“We reviewed the information you provided . . . You’re approved . . . .”).
Beyond these threshold deficiencies, the Kinsellas’ contention that Capital One was
engaging in sham negotiations with the Kinsellas goes nowhere. The sham negotiation hypothesis

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makes no sense when it is acknowledged that Capital One had authority to modify the loan.6 In
that case, it had no need to engage in sham negotiations; if it wanted to preclude a loan modification
for the Kinsellas, it could simply decline to enter into one. How then, one is compelled to ask,
would it have served Capital One’s interests to mislead the Kinsellas about the availability of a
potential loan modification? The Amended Complaint is no help in answering that question (again,
its premise is that statements to the effect that it did not have authority to modify the loan were
true, not false). As noted, the theory that statements about Capital One’s inability to grant loan
modifications appears not in the Amended Complaint but in the Kinsellas’ briefs. See Resp., ECF
No. 41, at 4–5; Surreply, ECF No. 46. But those briefs also fail to offer any basis at all to infer that
misleading the Kinsellas about Capital One’s authority to approve loan modifications furthered
some interest of the bank’s. The Kinsellas’ briefs simply ignore this obvious hole in their new
theory. And while Rule 9(b) does not require pleading state of mind, a “complaint must afford
some basis for believing that plaintiffs can prove scienter.” Borsellino v. Goldman Sachs Grp.,
Inc., 477 F.3d 502, 508 (7th Cir. 2007) (affirming dismissal of complaint that did not “shed any
light on the fundamental implausibility of the fraud”).
Finally, the Court discerns no basis to rescue the Kinsellas’ claim by looking beyond its
fraud theory. Though a plaintiff need not identify a legal theory in pleading his claim, he must be
able to point to a plausible theory in response to a motion to dismiss. Here, the Kinsellas have
defended the viability of their Amended Complaint solely on the basis of a common law fraud

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This is not to suggest that the sham negotiation hypothesis makes any sense in the context
of the complaint’s allegations either. The premise of the complaint, again, is that Capital One
lacked authority to approve loan modifications because the loan had not been assigned to it. The
theory discernible in the Amended Complaint, if barely, is that having no authority to approve or
deny loan modifications, Capital One was stringing the Kinsellas along in hopes of obtaining a
judgment against them. How pretending to negotiate a loan modification would help a bank obtain
a judgment against a borrower in default, however, is an unexplained mystery.
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theory, which fails for the reasons discussed above, and the Court sees no basis to believe that
there is any other legal theory that would plausibly support their claim. To the extent that the
Kinsellas’ claim can be construed as simply asserting that Capital One failed to provide them with
the terms for a loan modification during the course of negotiations, it fails as well. The Court is
aware of no duty—and certainly the Kinsellas have not pointed to one—that would require Capital
One to provide the Kinsellas with a loan modification or to permit a short sale.
II.

Causation and Damages
Even if the Amended Complaint adequately alleged a plausible misrepresentation by

Capital One, it would still fail because the Kinsellas have not alleged, nor does the Court have a
sufficient basis upon which to infer, a plausible link between any fraudulent misrepresentation by
Capital One and harm to the Kinsellas. The Kinsellas do not allege that Capital One fraudulently
induced the Kinsellas to default on their mortgage; their original default predates Capital One’s
merger with ING, and ING filed the foreclosure action in April 2012. The Amended Complaint
alleges damages arising from the foreclosure action, but it does not allege that either of the
foreclosure orders were entered as the result of unlawful conduct by Capital One. Although the
March 2013 sheriff’s sale was conducted in violation of the Circuit Court’s order, the Kinsellas
have not alleged that Capital One fraudulently procured such a result, and ING successfully moved
to void the sale. Am. Compl. ¶¶ 13–15. Further, although the Kinsellas allege they suffered
damages as a result of ING’s failure to file the Circuit Court’s order voiding the sheriff’s sale with
the Recorder’s Office, id. ¶¶ 16–19, the Kinsellas have not alleged any affirmative duty requiring
ING or Capital One to do so. All of these events occurred before Capital One filed its motion to
substitute for ING in September 2013 and Capital One had nothing to do with them so far as the
Amended Complaint alleges.

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The question as it relates to damages is therefore whether Capital One’s alleged
misrepresentation about its authority to enforce the mortgage exacerbated the harm that had
occurred or would naturally have occurred as a consequence of the underlying default. In that
regard, too, the Amended Complaint is entirely inadequate. The Amended Complaint alleges that
“as a result of the actions of Capital One”—that is, as a result of Capital One’s assertion that it is
now the note holder on the Kinsellas’ loan—that the Kinsellas have been prevented from selling
or refinancing the home, that their credit rating was damaged, and that the appraised value of the
home diminished. Am. Compl. ¶ 47. These conclusory allegations, unsupported by any factual
detail or explanation, are simply implausible. As Capital One argues, even accepting arguendo the
premise that Capital One lied about being the proper party plaintiff in the foreclosure matter, the
Amended Complaint provides no basis to infer that the lie prevented the Kinsellas from selling
their home or refinancing their loan. Buyers would not know who the Seller’s lender was and the
evaluation by other banks of the Kinsellas’ credit-worthiness would have nothing to do with the
identity of their lender. Nor would the identity of one’s mortgage lender affect one’s credit rating
or the appraisal of one’s home. The damages to which the Kinsellas’ point have nothing to do with
the identify of their lender and everything to do with the erroneous entries of default judgments
against them. But those events, while unfortunate, were not caused by Capital One.
*

*

*

For the reasons stated above, Capital One’s Motion to Dismiss Plaintiffs’ Amended
Complaint [33] is granted. The Kinsellas have requested leave to file a second amended complaint
in the event Capital One’s motion were granted. Although a claim based on a theory that Capital
One lacked authority to enforce the mortgage against the Kinsellas would be futile, the Court
cannot, on the basis of this ruling, exclude entirely the possibility that the Kinsellas may be able

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to allege other facts that give rise to a claim against Capital One. As yet, the Kinsellas have not
had the opportunity to consider the Court’s view of the deficiencies in their claim and, as a general
matter, they should be given at least one opportunity to replead after the grant of a motion to
dismiss. See generally Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago and Nw.
Indiana, 786 F.3d 510, 519–20 (7th Cir. 2015) (“Unless it is certain from the face of the complaint
that any amendment would be futile or otherwise unwarranted, the district court should grant leave
to amend after granting a motion to dismiss.”) (emphasis in original). Accordingly, the dismissal
is without prejudice and the Kinsellas are given leave, consistent with the requirements of Federal
Rule of Civil Procedure 11, to file a second amended complaint on or before December 7, 2018.
Absent timely amendment, the Court will enter judgment on behalf of Capital One.

___________ ____________
_
John J. Tharp, Jr.
United States District Judge

Date: November 9, 2018

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