IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DAMARIS WALKER,

                                                 Plaintiff,

              v.

WELLS FARGO BANK, N.A.; U.S. BANK,

N.A.; and MORTGAGE ELECTRONIC

REGISTRATION SYSTEMS, INC.,

                                                Defendants.

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12 C 3120

Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff DamarisWalker brings this suit against Defendants Wells Fargo Bank, U.S.

Bank, and Mortgage Electronic Registration Systems (hereafter “MERS”) for Wells Fargo’s

alleged violation of the Fair Debt Collection Practices Act (hereafter “FDCPA”), 15 U.S.C.

§ 1692, et seq. (Count I); unjust enrichment (Count III); violation of the Illinois Consumer

Fraud and Deceptive Business Practices Act (hereafter “ICFA”), 815 ILCS 505/1,etseq., and

the Uniform Deceptive Trade Practices Act (hereafter “DTPA”), 815 ILCS 510/1, et seq.

(Count IV); and to quiet title against Wells Fargo, U.S. Bank, and MERS (Count II).  Walker

attempts to assert an additional claim for “Violation of Illinois Fair Debt Collection Act,”

but Illinois has no such act on record.  Walker’s claim in Count V of her Complaint alleges

wilful, malicious, and egregious violations of the ICFA and DTPA on the part of Wells

Fargo.  

1
This suit arises out of the securitization of a Mortgage and Note on Walker’s

property, which weredepositedinto a securitizedtrust called CSFBMortgage‐BackedPass‐

Through Certificates, Series 2005‐10.  Wells Fargo was the servicerfor Walker’s loan, along

with other loans in the Trust.  Walker alleges that the Trust was terminated and dissolved

on March 30, 2006, based on a document entitled “Form 15 Certification and Notice of

Termination of Registration under Section 12(g) of the Securities Exchange Act of 1934 or

Suspension of Duty to File Reports under Sections 13 and 15(d) of the Securities Exchange

Act of 1934” (hereafter “Form 15”), a copy of which Walker attached as an Exhibit to her

Complaint.  Walker argues that as a result of the alleged dissolution, the Trust no longer

owns the Note andWells Fargo, as servicerforthe Trust, is no longerWalker’s servicer and

lost all rights to collect payments under the Note.  As a result, Walker alleges that the

Defendants’ subsequent activities with respect to the Note and Mortgage were illegal.  

The Defendants argue that Form 15, which is attached to the Complaint, flatly

establishes that the Trust was not terminated or dissolved.    Thus, according to the

Defendants, Walker’s claims underthe FDCPA, the ICFA, the DTPA, as well as her claims

for unjust enrichment and to quiet title are scotched because all of her claims rely on the

presumptionthattheTrust was terminated.  Accordingly,theDefendants’ move todismiss

Walker’s Complaint pursuantto FederalRule of Civil Procedure 12(b)(6)forfailure to state

2
a claim upon which relief can be granted.  Forthe reasons set forth herein, the Defendants’

Motion is granted and Walker’s Complaint is dismissed with prejudice.

I.  Background  

In deciding the instant Motion, the Court assumes the veracity of the well‐pleaded

facts in the Complaint and construes all reasonable inferences in favor of Walker, the

nonmoving party. See Killingsworth v. HSBC Bank, 507 F.3d 614, 619 (7th Cir. 2007) (citing

Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006)); accord Murphy v. Walker, 51 F.3d 714, 717

(7th Cir. 1995).  Although the well‐pleaded facts are entitled to the presumption of truth,

documents attached to the Complaint control over contrary pleadings and where an

Exhibit conflicts with the allegations of the Complaint the Exhibit controls.  See Massey v.

Merrill Lynch & Co., Inc., 464 F.3d 642, 645 (7th Cir. 2006) (citing Centers v. Centennial Mortg.,

Inc., 398 F.3d 930, 933 (7th Cir. 2005)); see, e.g., McClinton El v. Potter, Nos. 06 C 5329 and 06

C 6839, 2008 WL 5111182,*4 (N.D. Ill. Dec. 4, 2008).  Therefore a plaintiff may plead herself

out of court by attaching documents to her complaint that indicate that she is not entitled

to relief.  See Massey, 464 F.3d at 645.  

Walker owns and possesses the Subject Property, which is identified by its PIN 20‐

10‐110‐006‐0000, in Cook County, Illinois.  On July 5, 2005, Walker signed a mortgage Note

in favor of RBC Mortgage Company (hereafter “RBC”), the original mortgagee of the

Subject Property.  On the same date, to secure this loan Walker signed the Mortgage that

3
conveyed a security interest in the Subject Property to RBC, as lender, with MERS “as a

nominee.”    Soon thereafter, RBC endorsed, sold, and transferred the Note and the

Mortgage to Credit Suisse First Boston Mortgage Securities Corporation (hereafter “Credit

Suisse”).

On or about September 1, 2005, Credit Suisse securitized and transferred the Note

and the Mortgage to CSFB Mortgage‐Backed Pass‐Through Certificates, Series 2005‐10

(hereafter “Trust 2005‐10”), a mortgage‐backed‐securities trust settled under the laws of

the State of New York and registered with the Securities and Exchange Commission

(hereafter “the SEC”).  The SEC publishes Trust 2005‐10’s founding agreement and itsRule

424(b)(5) Registration Prospectus online through its EDGAR system.    The 424(b)(5)

Registration Prospectus identifies the servicer of the loan as Wells Fargo, the Trustee as

U.S. Bank, and the date on which the Note and the Mortgage were transferred to Trust

2005‐10.  Thus, Wells Fargo was the servicer for loans secutitized in the Trust, including

Walker’s loan.

On January 26, 2006, Trust 2005‐10 allegedly filed its Form 15‐15D, “Notice and

Certification of Termination” with the SEC.  Walker alleges that on March 20, 2006, Trust

2005‐10 filed its final 10‐K Annual Report and was terminated and dissolved.  The final

Form 10‐K states that, as of the alleged date of termination, the Trust allegedly had no

business, no public trading market, no select financial date, no disclosures, no financial

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statements and supplementary date, no directors and executive officers, no relationships

and related transactions, and no account services.    Walker alleges that therefore, on

information and belief, Trust 2005‐10 was dissolved on or before January 26, 2006.

On the same date, under the laws of the State of New York, all of the assets of Trust

2005‐10 were allegedly distributed to the certificateholders of the Trust, and they allegedly

became the only mortgagees—the only legal holders of the Note and Mortgage.  After the

Trust was allegedly terminated, Wells Fargo, allegedly without any interest in the Note or

the Mortgage, and without any privity of contract with the mortgagees, held itself out as

the servicer of the Note and Mortgage and sent purported mortgage bills to Walker each

month.  Walker, relying on Wells Fargo’s allegedly false representation that it was the

servicer of the Note, paid many of these bills.

On December 30, 2006, Wells Fargo, through its America’s Servicing Company

division, sent a Form 1098 to the IRS showing the amount Walker paid to it in 2006.  On

February 28, 2012, Wells Fargo, through its America’s Servicing Company division, sent

a lettertoWalker andencloseda “Payment History/CustomerAccountActivity Statement”

showing all amounts paid by Walker to Wells Fargo since March 1, 2009.

Walker alleges that there is no evidence that MERS was ever a “holder” of eitherthe

Note orthe Mortgage in this case.  According to Walker, MERS exists—in accordance with

its name—simply as an electronic registration system to track the transfer of notes and

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mortgages.  Walker claims that MERS, pursuant to its standard practices and procedures,

does not exercise physical control or custody over actual notes or mortgages.  Walker

alleges that there is no recorded or other evidence that Trust 2005‐10 ever sold the Note or

the Mortgage to any other entity.

Walker alleges that beginning on or about March 30, 2006, Wells Fargo knowingly

and intentionally communicated, and continued to communicate, deceptive, false,

fraudulent, and misleading statements to Walkerrepresenting orimplying that it was and

is the servicer of the Note and the Mortgage.  At this time, Walker alleges that Wells Fargo

in its communications with herfalsely represented that the mortgage debt payments were

owed to it.  Furthermore, Walker alleges that Wells Fargo falsely represented that it had

standing and authority to foreclose on the Mortgage.  She also alleges that Wells Fargo

used false, deceptive, and misleading representations in connection with the collection of

the alleged debt and falsely represented to Walker the character, amount, and legal status

of the alleged debt.    Walker alleges that Wells Fargo falsely represented to her that

nonpayment of the alleged debt would result in the sale of the Subject Property.  Walker

alleges that Wells Fargo has used false representations and deceptive means to collect or

attempt to collect the alleged debt from her in an amount not expressly authorized by the

agreement creating the debt and not permitted by law.  Walker further alleges that Wells

Fargo has failed to validate her alleged debt as required by 15 U.S.C. § 1692g.

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Defendants Wells Fargo, U.S. Bank, and MERS are joined as they are allegedly

claimants to an interest in the Subject Property adverse to that of Mr. and Mrs. Pirard.

MERS’s name appears on the title as “nominee,” and Walker alleges that its interest has

never been properly and formally released.  Walker alleges that the claim of MERS, as

“nominee,” and the claims of Wells Fargo and U.S. Bank, as servicer and former holder of

the Note, constitute a cloud on the title of the Subject Property.  Wells Fargo and U.S. Bank

are not named anywhere on the Note or the Mortgage.  

Trust 2005‐10 was the only owner and legal holder of the Note and the Mortgage

from September 1, 2005, until the moment the Trust was allegedly terminated.  The title

abstract reveals that no assignment of the Note or the Mortgage from Trust 2005‐10 to any

party was ever recorded on the Subject Property.  Walker alleges that Wells Fargo, U.S.

Bank, and MERS have no legal interest in the Note or the Mortgage that could allow them

to collect payments underthe Note and the Mortgage.  She alleges that there is no genuine

evidence of ownership: no valid assignment, no allonge, no bill of sale, no contract, no

receipt, no substitution of trustee, and no payment.  Walker claims that mortgagors have

a duty to make payments to the correct mortgagee and a right to negotiate with the true

owner of their mortgage.  Walker alleges that only with a declaratory judgment from this

Court can she know to which party to make her mortgage payments; payments which she

does not dispute she owes.

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Walker also alleges that Wells Fargo, without having purchased either the Note or

the Mortgage, without any servicing rights, and without privity of contract with the

mortgagees, sent Walker false monthly statements purporting to have authority to collect

mortgagepayments.  Walker,relying on these representations,paid many ofthe purported

mortgage bills sent by Wells Fargo.  Walker alleges that Wells Fargo, by collecting funds

from her without authority, has unjustly retained a benefit to the detriment of herself.

Walker alleges that Wells Fargo accepted and retained the mortgage payments without

applying them to the balance she owed to the true mortgagees.  

Walker alleges that Wells Fargo willfully passed off its services as those of

another—as those of the mortgagee of the Note and Mortgage.  She further alleges that

Wells Fargo has wilfully caused a likelihood of confusion and misunderstanding as to the

source, sponsorship, approval, or certification of its services.  She claims that Wells Fargo

pretends to be a lender where it is not.   Walker alleges that Wells Fargo has wilfully

represented that its services have approval, characteristics, uses, and benefits that they do

not have.  She alleges that Wells Fargo is not authorized by the mortgagee, and that Wells

Fargo cannotrelease the Mortgage if Walker were to make all payments underthe Note to

it.  In short, Walker alleges that Wells Fargo has willfully engaged in conduct that creates

a likelihood of confusion and misunderstanding as to who the true mortgagee of the

Subject Property is.

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Finally, Walker alleges that Wells Fargo acted as a debt collector, not as a creditor,

because it was not providing credit to her and because she allegedly owes it no debt as a

result of the alleged termination of the Trust.  She claims that Wells Fargo’s actions in

allegedly wrongfully collecting mortgage loan payments from her constitute willful,

malicious, andegregious violations ofthe Illinois Consumer FraudandDeceptiveBusiness

Practices Act and the Uniform Deceptive Trade Practices Act.  Walker alleges that Wells

Fargo committed these wrongs in the manner described above, by, for example, using

false, deceptive, and misleading representations in connection with the collection of the

alleged debt and falsely representing to Walker the character, amount, and legal status of

the alleged debt.

II.  The Standard of Review

When considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all of

the well‐plead facts alleged in the complaint and construes all reasonable inferences in

favor of the nonmoving party.  See Killingsworth, 507 F.3d at 618 (citing Savory, 469 F.3d at

670); accord Murphy, 51 F.3d at 717.  To properly state a valid claim, the complaint must

contain a “short and plain statement of the claim showing that the pleader is entitled to

relief.”  Fed. R. Civ. P. 8(a)(2).  “Detailed factual allegations” are not required, but the

plaintiff must allege facts that, when “accepted as true. . .state a claim to relief that is

plausible on its face.”  Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.

9
v. Twombly, 550 U.S. 544, 555 (2007)) (internal quotations omitted).  To determine whether

a complaint meets this standardthe “reviewing court[must]draw onits judicial experience

and common sense.” Iqbal, 556 U.S. at 678.  If the factual allegations are well‐plead, the

Court assumes their veracity and then proceeds to determine whether they plausibly give

rise to an entitlement to relief.  Id. at 679.  A claim has facial plausibility when its factual

content allows the Court to draw a reasonable inference that the defendant is liable forthe

misconduct alleged.  See Id. at 678.  In deciding a motion to dismiss “courts should not

accept as adequate abstract recitations of the elements of a cause of action or conclusory

legal statements.”  Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009).  Furthermore, although

the well‐plead facts alleged in a complaint are entitled to the presumption of truth,

documents attached to a complaint control over contrary pleadings and where an exhibit

conflicts with the allegations of a complaint the exhibit controls over the contrary

pleadings.  See Massey, 464 F.3d at 645 (citing Centers, 398 F.3d at 933); see, e.g., McClinton

El, 2008 WL 5111182 at*4.  Therefore a plaintiff may plead herself out of court by attaching

documents to the complaint that indicate that she is not entitled to relief.  See Massey, 464

F.3d at 645.      

Federal Rule of Civil Procedure 8(a)(2) thus imposes two requirements on every

complaint in order for it to survive a motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6).  See EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir.

10
2007) (citing Twombly, 550 U.S. at 555); accord Iqbal, 556 U.S. at 678.  First, a complaint must

describe the plaintiff’s claims and the grounds supporting them in “sufficient detail to give

the defendant fair notice” of the claims alleged against it, which requires more than mere

“labels and conclusions” or a “formulaic recitation of the elements of a cause of action.”

Concentra, 496 F.3d at 776.  Notice to the defendant alone, however, is not sufficient.  To

survive a motion to dismiss, the complaint must, in addition to providing notice to the

defendant of the claims alleged against it,  include factual allegations which “plausibly

suggest a right to relief, raising that possibility above a speculative level.”  See Id. “The

plausibility standard. . .asks for more than a sheer possibility that a defendant has acted

unlawfully.  Where a complaintpleads facts that were merely consistent with adefendant’s

liability, it stops short of the line between possibility and plausibility of entitlement to

relief.”   Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557) (internal quotations

omitted).  Accordingly,Rule 8 “does not unlock the doors of discovery for a plaintiff armed

with nothing more than conclusions.”  Iqbal, 556 U.S. at 678‐679.  Thus, a motion to dismiss

may be properly granted in favor of the moving party where the plaintiff does not allege

a plausible entitlement to relief either by failing to provide the defendant with notice of the

claims alleged against it or by asserting only speculative or conclusory allegations in the

complaint.

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III.  Discussion

All five of the Counts alleged in Walker’s Complaint are premised on her allegation

that Trust 2005‐10 was “terminated and dissolved” in March 2006.  Walker bases that

assertion on the Form 15 that the Trust filed with the SEC, and which she attached as

Exhibit D to her Complaint.   A review of the Form 15 shows that the Trust was not

dissolved or terminated.    As exhibits attached to a complaint control over contrary

allegations in the pleadings, the Court must read Form 15 according to its terms, even if

that means drawing inferences against Walker.  See Massey, 464 F.3d at 645.

Form 15 is an SEC form that serves two purposes.  Neither of those purposes is the

termination of the entity filing the form.  Form 15 is used to notify the SEC if (1) an entity

is going to terminate its registration with the SEC, or(2) an entity is going to suspend filing

of its required quarterly reports with the SEC because the entity’s securities no longer fall

under the SEC’s filing requirements.  See 15 U.S.C. § 78o(d)(2)(A); 17 C.F.R. § 249.323.  In

this case the Trust filed its Form 15 to notify the SEC that it intended to suspend the filing

of its quarterly reports.  The Form 15 that is attached to Walker’s Complaint states that it

was filed undertwo SEC rules:Rule 15d‐6 andRule 12h‐39b)(1)(i). Rule 15d‐6 relates to the

suspension of the duty to file reports pursuant to Title I of the Securities Exchange Act of

1934.  See 17 C.F.R. § 240.15d‐6.  Rule 12h‐3(b)(1)(i) states that the duty to file quarterly

reports may be suspended if the subject securities are held by less than three‐hundred

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persons.  See 17 C.F.R. § 240.12h‐3(b)(1)(i).  Neither of these rules, nor any part of Form 15,

provide for the termination of the filing entity.  Thus, the Form 15 attached to Walker’s

Complaint did not terminate the Trust;ratherit simply provided notice to the SEC that the

Trust was suspending its reporting duties because less than three‐hundred persons held

securitized interests in the Trust.  Indeed, the document attached to Walker’s Complaint

as Exhibit E describes the Trust’s Form 15 as a “Notice of Suspension of Duty to File

Reports.”    Form 15 does not establish that the Trust was terminated, and Walker’s

allegations to the contrary are baseless and contradicted by the Exhibits attached to her

Complaint, which control over her contrary pleadings.  See Massey, 464 F.3d at 645.   

Walker alleges that Form 15 is entitled “Notice and Certification of Termination,”

thus evidencing that the Trust was terminated and dissolved.  This is not the case.  Because

the plain language of the Form 15 attached to Walker’s Complaint controls over her

allegations to the contrary, the Court rejects as true Walker’s assertion that the Trust was

terminated and dissolved.  Walker has therefore failed to plausibly allege that the Trust

was terminated and dissolved.  Furthermore, the February 28, 2012 letter sent by Wells

Fargo’s servicing unit, America’s Servicing Corporation, which is attached to Walker’s

Complaint as part of her Exhibit F, establishes that the Trust still exists and owns the Note.

Because the contents of an exhibit control over contrary allegations in the pleadings, see

Massey, 464 F.3d at 645,Exhibit F controls andestablishes the ongoing existence ofthe Trust

13
and the Trust’s continued ownership of the Note.  This in turn establishes Wells Fargo’s

right to collect on the debt from Walker as the servicer of her loan.  

In Walker’s response to the Defendants’ Motion to Dismiss she argues that the

question of the existence of the Trust is an issue of fact that can only be resolved through

discovery.  But this argument ignores Walker’s failure to satisfy her threshold pleading

obligation to assert sufficient factual matter to state a plausible entitlement to relief.  See

Iqbal, 556 U.S. at 678.  Walker is merely speculating that the Trust was terminated, both in

her Complaint and in her response to the Defendants’ Motion to Dismiss.  The SEC Form

15 attached to the Complaint shows that there is no factual basis for the claim contained

in Walker’s pleadings that the Trust was terminated and dissolved.  The speculation that

the Trust was terminated contained in Walker’s response is not adequate to meet her

pleading requirements.  As a result, the Defendants should not be forced to incur the time

and expense of discovery based on Walker’s speculative and conclusory assertions which

do not give rise to a plausible entitlement to relief.  See Brooks, 578 F.3d at 581.

Walker’s claims for violations ofthe FDCPA,the ICFA, and the DTPA, as well as her

claims for unjust enrichment and quiet title are all premised on the mistaken assertion that

the Trust was terminated and that therefore Wells Fargo had no right to collect mortgage

payments as the servicer of the loan.  No other conduct is alleged that could plausibly give

rise to liability under any of the claims asserted in the Complaint.  Walker acknowledges

14
that, assuming the Trust exists, U.S. Bank is the Trustee and Wells Fargo is her loan

servicer.  Because theExhibits attached to the ComplaintrefuteWalker’s allegation thatthe

Trust has been terminated and dissolved, the acts that allegedly form the basis for Counts

I through V, namely the collection and application of payments for Walker’s loan by Wells

Fargo, were lawfully taken by it as the servicer of the loans in the Trust.  There are no other

allegations that can satisfy the pleading requirements for any of the five Counts asserted,

and the conclusion that the Trust did not terminate or dissolve scotches any claim

contained in Walker’s Complaint upon which relief can be granted.

In herresponse to theDefendants’Motion toDismissWalker claims thatthe FDCPA

claim contained in Count I of her Complaint should not be dismissed because the Act

applies to mortgage loan servicers and because Wells Fargo fraudulently uses its status as

servicer of an allegedly dissolved Trust in order to unjustly profit to the detriment of

Walker and the true mortgagee.  Walker argues that Wells Fargo pretends to enforce the

security interest of a Trust which no longer exists.  She claims that such activity defrauds

not only herself, but also the true mortgagee and this Court.  In addition to the fact that the

Court concludes based on the Exhibits attached to the Complaint that the Trust did not

dissolve or terminate, Walker’s claim under the FDCPA must be dismissed for the

additionalreasonthather Complaintdoesnot contain sufficient allegations to establishthat

the FDCPA applies in this case.  

15
The Act only applies to debt collectors, which includes persons or entities whose

principal business purpose is to collect the debts of others, or loan servicers that receive

servicing rights after a debt is in default.   See 15 U.S.C. § 1692c(a); Obi v. Chase Home

Finance, LLC, No. 10 C 5747, 2011 WL 529481 (N.D. Ill. Feb. 8, 2011) (Kendall, J.) (dismissing

with prejudice plaintiff’s FDCPA claim against defendant loan servicer because the loan

was not in default when the defendant began servicing it and the FDCPA excludes loan

servicers of debts not in default at the time it was obtained); see, e.g., Cocroft v. HSBC Bank

USA, N.A., No. 10 C 3408, 2012WL 1378645,*11 (N.D.Ill.July 19, 2004)(dismissing FDCPA

claim where plaintiff did not allege any facts demonstrating that the defendants were debt

collectors).  Walker’s allegation thatWells Fargo acted as a debt collector underthe FDCPA

is asserted in the most conclusory way possible.  Her only allegation with respect to this

issue asserted in her Complaint is that “Wells Fargo acted as debt collector, not as a

creditor, under the FDCPA.”  (Compl. ¶ 30).  The Complaint therefore lacks any plausible

allegations that rise above a purely speculative level to establish that Wells Fargo was a

debt collector and this is therefore fatal to Walker’s claim pursuant to the FDCPA.

Furthermore, the district court decisions from otherjurisdictions cited by Walkerin

her response do not support her claim, but rather undermine it.  In two of the three cases

cited in Walker’s response the courts dismissed the FDCPA claims pursuant to Rule

12(b)(6) because, as here, the plaintiffs in those cases failed to plead sufficient facts to state

16
a plausible claim to relief.  See Friend v. Fryberg, Buchanan, Smith & Frederick, P.A., No. 11‐

CV‐1584 PJS/LIB, 2012 WL 503796, *6‐*7 (D. Minn. Feb. 14, 2012) (plaintiff’s FDCPA claim

could not survive a motion to dismiss where the plaintiff set forth nothing more than

“nakedassertions” thatthe defendant violatedthe FDCPA without alleging sufficientfacts

as to how the Act was allegedly violated); Katz v. Aurora Loan Serv., LLC, No. 11‐cv‐1806‐

IEG (POR), 2012 WL 78399,*4‐*5 (S.D. Cal. Jan. 10, 2012) (where a plaintiff’s claims provide

no more than conclusions without any factual support they fail to state a claim under the

FDCPA).  Furthermore, in both Katz and Williams v. Wells Fargo Bank, N.A., the third case

cited in response by Walker, the courts explicitly acknowledged that a mortgage servicer

is exempt from liability underthe FDCPA where it obtained the servicing rights of the loan

before the loan was in default.  See Katz, 2012 WL 78399 at *2; Williams v. Wells Fargo Bank,

N.A., No. C10‐5880BHS, 2012 WL 72727, *5 (W.D. Wash. Jan. 10, 2012).  These cases are in

accord with those decided in this District; indeed by this Court.  See Obi, 2011 WL 529481

at *5‐*6.  In this case Walker alleges that Wells Fargo obtained the servicing rights for her

loan in 2005 and nowhere in the Complaint does she allege that her loan was in default at

that time.  Nor does Walker allege that Wells Fargo’s principal business purpose is to

collect the debts of others.    Walker’s Complaint therefore fails to state a plausible

entitlement to relief under the FDCPA and her claim in Count I is dismissed for this

additional reason.

17
Walker’s claim to quiet title fails because she has not alleged that there is a cloud on

her title, and because she admits that there is a valid mortgage on the Subject Property for

which she owes a debt and therefore there is no cause in this case to remove the mortgage

from the title of the Subject Property.  “A ‘cloud on title’ is the semblance of title, either

legal or equitable, appearing in some legal form but which is, in fact, unfounded or which

it would be inequitable to enforce.”  Gambino v. Boulevard Mortg. Corp., 922 N.E.2d 380, 410

(Ill. App. Ct. 2010);see also El‐Bey v. Housing & Urban Development,et al., No. 11 C 7260, 2012

WL 1378680,*3‐*4 (N.D. Ill. April 20, 2012) (dismissing claim to quite title where there was

a valid mortgage on the property).   A “cloud” on title is thus an unfounded legal or

equitable semblance of title to property.   Walker does not carry her burden to plead

sufficient factual allegations establishing the Wells Fargo, U.S. Bank, and MERS have put

a cloud on her title to the Subject Property because she admits that the Mortgage correctly

secures a valid loan that was undisputably provided to her. See El‐Bey, 2012 WL 1378680

at *3‐*4.  Walker admits that she executed the Mortgage and allowed it to be recorded on

the title of the Subject Property in order to secure repayment of a loan of approximately

$350,000.00.  Walker does not allege that she has paid back the balance of the loan, nor does

she allege that she is prepared to do so.  In her response, Walker admits that “it is not the

existence of the mortgage that Mrs. Walker disputes.  She alleges she owes the debt.  She

acknowledges and reaffirms it.”  (Resp. at 4).  Walker cannot state a claim to quite title

18
seeking to remove a lien createdby herMortgage to secure a debtthat she admits she owes.

See Id.  Thus, Walker fails to state a claim to quiet title because she fails to allege any facts

that would establish that the Mortgage is “unfounded or. . .would be inequitable to

enforce.”  Gambino, 922 N.E.2d at 410; accord El‐Bey, 2011 WL 1378680 at *3‐*4.  Walker has

failed to plausibly allege that the Defendants are clouding her title.  Therefore, there is no

cause here to remove the Mortgage from the title to Walker’s property.   In response,

Walker argues that the Defendants should “welcome” an action to quiet title as an

opportunity to prove that they are in fact the appropriate parties to hold and service

Walker’s debt.   This argument turns Walker’s requirement under the relevant federal

pleading standardon its headby forcing theDefendants todefendagainst a claim thatdoes

not first meet the threshold plausibility requirement to state a claim to relief under Rule

8(a)(2).  Thus, Walker’s claim to quiet title is dismissed.

IV.  Conclusion

The Exhibits that Walker attached to her Complaint establish that, contrary to her

assertion of the opposite, Trust 2005‐10 was not terminated or dissolved when the Trust

filed its Form 15 with the SEC.  This scotches Walker’s claims forrelief, because each of her

claims rely on the unfounded premise that the Trust was terminated and that therefore

Wells Fargo had no right to collect on her debt as the servicer of her loan.  Furthermore,

notwithstanding the fact that the Trust was not terminated, Walker’s claim under the Fair

19
Debt Collection Practices Act additionally fails to state a plausible claim that Wells Fargo

was a debt collector, and in any event, a servicer of a loan can only be liable under the Act

where it attempts to collect a debt that is already in default, which Wells Fargo did not do

in the present case.    Walker’s claim for quiet title does not plausibly allege that the

Defendants have created a cloud over the title of the Subject Property because Walker

admits that the Mortgage correctly secures a valid loan that was undisputably provided

to her, and she cannot state a claim to quite title seeking to remove a lien created by her

mortgage to secure a debt that she admits she owes.  Therefore, there is no cause in this

case to remove the Mortgage from the title toWalker’s property.  In addition,Walkerfailed

to timely file her response to the Defendants’ Motion on July 10, 2012, as required by an

order of this Court.  Thus, Walker’s claims are dismissed forthe additionalreason that her

failure to file a timely response operates as a forfeiture, which is a valid and independent

basis for dismissal.  See Lekas v. Brilley, 405 F.3d 602, 614‐615 (7th Cir. 2005) (where plaintiff

“did not present legal arguments or cite relevant authority to substantiate his claim in

responding to defendants’ motion to dismiss” his “claim has been waived”); Kirksey v. R.J.

Reynolds Tobacco Co., 168 F.3d 1039, 1042 (7th Cir. 1999) (Posner, J.) (“Our system of justice

is adversarial, and ourjudges are busy people. . .An unresponsive response is no response.

In effect the plaintiff was defaulted for refusing to respond to the motion to dismiss. And

rightly so. . .by failing to reply responsively to the motion to dismiss. . .[plaintiff] forfeited

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her right to continue litigating her claim.”).  For all of the reasons set forth above, the

Defendants’ Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) is

granted and Walker’s Complaint is dismissed with prejudice.

________________________________________

Virginia M. Kendall

United States District Court Judge

Northern District of Illinois

Date: September 5, 2012

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