Griffin v. Safeguard Props. Mgmt., LLC

LAURA GRIFFIN, TONY PARSONS,and SANDY KLOSTER, Plaintiffs, v. SAFEGUARD PROPERTIES MANAGEMENT, LLC;ALLY BANK; CENLAR FSB; KAYLA ENTERPRISES, LLC;MLPROPERTY INSPECTIONS, INC.;ALISSA LLC; MARIO LOPEZ;and MOHAMMAD AL ISSA, Defendants.

Case No. 18 C 5755

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

October 16, 2020

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

The plaintiffs filed suit against the defendants asserting claims for: violations of the Illinois Consumer Fraud and Deceptive Practices Act (Count 1); trespass to real property and chattels (Count 2); conversion (Count 3); invasion of privacy (Count 4); breach of contract (Count 5); negligent hiring/retention (Counts 6, 7, and 8); negligent hiring (Count 9); fraudulent misrepresentation (Count 10); civil conspiracy (Count 11); and violations of the Fair Debt Collection Practices Act (Count 12).¹ The defendants move for summary judgment on all counts.

Facts

Laura Griffin owned the three-floor Chicago home at the center of this dispute. She leased that home to Tony Parsons, who lived alone on the basement floor from 2016 to 2017. Ally Bank held the mortgage to the home. Ally subcontracted to Cenlar FSB, which serviced the mortgage. Cenlar subcontracted to Safeguard Properties Management, which provided mortgage field services, including property preservation and repair services. And Safeguard subcontracted to Alissa LLC, which provided property preservation services. Alissa is owned and operated by Mohannad Al Issa.²

In 2015, Cenlar informed Griffin that she had defaulted on her mortgage and, in November of that year, she was served with a summons and a mortgage foreclosure complaint. By the terms of the mortgage, in case of default or abandonment, Ally was empowered to secure and repair the home. On August 20, 2017, Mario Lopez—a Safeguard subcontractor since dismissed from this suit—inspected the exterior of the home and determined it was vacant. He made this determination based, in part, on an unmaintained backyard, discontinued electrical service, and no personal items visible through the windows. Lopez left a sticker on the home that indicated that the property was vacant and instructed the reader to call Safeguard. He also reported his findings to Safeguard. But the home wasn't vacant; Parsons still lived there. And both Parsons and Griffin testified that, contrary to Lopez's report, the electricity was still on at the home.

Based on Lopez's report, Safeguard sent Alissa an order to "lock" and "winterize"the home. The order was dated August 23, 2017, and stated that no work should be completed if the home was occupied. Alissa performed interior property preservation work on August 23, 2017, and reported that although the first two levels were vacant, the basement appeared occupied. Alissa employees changed the locks for all exterior doors to the home. A handwritten note was left on the property: "Please take your stuff and leave the house ASAP. Bongard have new owner."

On August 24, many things happened. Parsons wasn't at home when the Alissa employees changed the locks, so when he returned on August 24, he wasn't able to access the property. He contacted Griffin, who contacted her attorney. Griffin's attorney sent a cease and desist letter to Safeguard and to Ally's attorneys in the foreclosure action against Griffin. Cenlar reported the home as occupied, and a Safeguard employee placed an internal flag on the loan to cease any further property preservation activity.

Despite this, property preservation activity did not stop. On August 26, Al Issa of Alissa and two other individuals returned to the home and performed additional property preservation work, including taking photos of the basement. When Parsons returned home, he found a handwritten note on his apartment's front door. The note read: "Please take your stuff and Leave the Hous ASAP. Bangard Have New Owner. Thank yous." The note was written on the back of what the plaintiffs allege is a Safeguard work order. On August 29, Griffin's attorney sent another cease and desist letter, and the account was again flagged to note that all property preservation work should end. Despite this, on September 5, Al Issa returned to the home to perform further property preservation work.

Parsons alleges several encounters with a man whose name he could not remember at the deposition, but who he later named as "Mo." When Parsons first spoke to him, "Mo" told him that he "needed to take [his] stuff and get out and move out." When he encountered "Mo" again, "Mo" had accessed the home without Parsons's permission and later pushed open the door to the basement unit and took pictures of the unit before Parsons could give his permission. Parsons further alleges that some of his personal property was destroyed during "Mo's" visits. Other witnesses testified about this destruction. Each of the defendants still in the case denies removing or destroying any of Parsons's personal property.

Discussion

Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A disputed material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "To determine whether any genuine fact issue exists, the court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record." Mighty v. Safeguard Properties Mgmt., LLC, No. 16 C 10815, 2018 WL 5619451, at *5 (N.D. Ill. Oct. 30, 2018); see also Fed. R. Civ. P. 56(c).

The party seeking summary judgment bears the initial responsibility of proving there is no genuine issue of material fact, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), and must "affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact which requires trial." Day v. N. Ind. Pub. Serv. Co., 987F. Supp. 1105, 1109 (N.D. Ind. 1997). In determining a motion for summary judgment, courts view the facts "in the light most favorable to the party opposing the . . . motion." Scott v. Harris, 550 U.S. 372, 378 (2007).

A. Agency relationships

An overarching issue affecting many of the plaintiffs' claims is whether an agency relationship existed between the defendants. Safeguard, Ally, and Cenlar repeatedly argue that they cannot be held liable for the conduct of Alissa, which they say was merely an independent contractor of Safeguard. Although vicarious liability typically is not imposed upon a party that hires an independent contractor, it "may . . . be imposed for the actions of independent contractors where an agency relationship is established." Petrovich v. Share Health Plan of Illinois, Inc., 188 Ill. 2d 17, 719 N.E.2d 756, 765 (1999).

"A principal-agent relationship exists when the principal has the right to control the manner in which the agent performs his work and the agent has the ability to subject the principal to personal liability." Santana v. State Bd. of Elections, 371 Ill. App. 3d 1044, 1054, 864 N.E.2d 944, 952 (2007). "An agent's authority may be either actual or apparent, and actual authority may be either express or implied." Amigo's Inn, Inc. v. License Appeal Comm'n of City of Chicago, 354 Ill. App. 3d 959, 965, 822 N.E.2d 107, 113 (2004). "Only the alleged principal's words and conduct, not those of the alleged agent, establish the agent's authority." Id.

"A person or entity that is appointed by an agent to perform functions assigned to the agent by the principal is known as a 'subagent.'" Thakkar v. Ocwen Loan Servicing, LLC, No. 15 C 10109, 2019 WL 2161544, at *7 (N.D. Ill. May 17, 2019); see alsoRestatement (Third) of Agency § 3.15. Agents authorized to do so may "appoint subagents to perform those tasks or functions the agent has undertaken to perform for the principal." Id. (citing AYH Holdings, Inc. v. Avreco, Inc., 357 Ill. App. 3d 17, 33, 826 N.E.2d 1111, 1126 (2005)). Consequently, "an action taken by a subagent carries the legal consequences for the principal that would follow were the action instead taken by the appointing agent." Id. (citing Restatement (Third) of Agency § 3.15, cmt. d.)

The question of whether an agency or subagency relationship exists—along with the scope of the purported agent or subagent's authority—is a question of fact "based on the particular circumstances of the case." See AYH Holdings, 357 Ill. App. 3d at 34, 826 N.E.2d at 1127. Under Illinois law, that question is improper for summary judgment "unless the relationship is so clear as to be undisputed." Thakkar, 2019 WL 2161544, at *5, *7; see also AYH Holdings, 357 Ill. App. 3d at 34, 826 N.E.2d at 1127; Santana, 371 Ill. App. 3d at 1054, 864 N.E.2d at 952.

In this case, there are genuine disputes regarding the existence and scope of the agency relationships. Ally does not argue that Cenlar was prohibited from appointing a subagent, and Cenlar does not argue that Safeguard was prohibited from appointing a subagent. See Thakkar, 2019 WL 2161544, at *7. A jury could reasonably find that Safeguard, Ally, and Cenlar were linked through a cascade of agent and subagent relationships and therefore are each liable for Alissa's purported actions. See id. To the extent the defendants rely on this argument for summary judgment, it is rejected.

B. ICFA violation (Count 1)

Each defendant moves for summary judgment on Count 1, the alleged violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA). Theymainly argue that the plaintiffs do not qualify as "consumers" and cannot demonstrate that the alleged deceptions "occurred in the course of conduct involving trade or commerce."³ Blankenship v. Pushpin Holdings, LLC, No. 14 C 6636, 2015 WL 5895416, at *6 (N.D. Ill. Oct. 6, 2015). Specific...