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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

ROBERT JAIMES and BEATA JAIMES, ) 

 ) 

 Plaintiffs, ) 

 v. ) Case No. 12 C 3162 

 ) 

JPMORGAN CHASE BANK, N.A. and ) 

WASHINGTON MUTUAL BANK, F.A. ) 

 ) 

 Defendant. ) 

MEMORANDUM OPINION AND ORDER 

Plaintiffs Robert and Beata Jaimes (“Plaintiffs”) have sued Defendants JPMorgan Chase 

Bank, N.A. (“Chase”) and Washington Mutual Bank, F.A. (“WaMu”) alleging that Chase 

fraudulently held itself out as the creditor and servicer of the mortgage debt on Plaintiffs’ house 

and sought and received payments from Plaintiffs when Chase knew that it had no interest in the 

debt. Plaintiffs bring claims under the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et 

seq., the Illinois Fair Debt Collection Practices Act, 225 Ill. Comp. Stat. 425 et seq., the Illinois 

Consumer Fraud and Deceptive Business Practices Act, 815 Ill. Comp. Stat. 505/1 et seq., the 

Uniform Deceptive Trade Practices Act, 815 Ill. Comp. Stat. 510/1 et seq., and common law 

claims of quiet title and unjust enrichment. Chase moves to dismiss Plaintiffs’ claims alleging 

that it owned Plaintiffs’ debt. For the reasons provided herein, the Court grants Chase’s motion. 

Chase is dismissed as a defendant, but Plaintiffs are granted leave to file an amended complaint 

within twenty-eight (28) days of this Order. 

Facts 

The following facts are taken from Plaintiff’s Complaint and are accepted as true for 

purposes of resolving this Motion to Dismiss. See Reger Dev., LLC v. Nat’l City Bank, 592 F.3d 
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759, 763 (7th Cir. 2010). On March 26, 2004, Plaintiffs entered into a mortgage loan agreement 

with WaMu and signed a promissory note (“Note”) secured by a mortgage (“Mortgage”) for 

property located at 1759 East Cree Lane, Mount Prospect, Illinois. (Compl. ¶ 1.) On May 1, 

2004, WaMu sold and transferred the Note and Mortgage to a mortgage-backed-securities trust, 

the “WaMu Mortgage Pass-Through Certificates, Series 2004-AR5” (“Trust”). (Id. ¶ 15.) Under 

the terms of the Trust, WaMu retained possession of the notes and mortgages as custodian for the 

Trust and remained the servicer of the mortgage loans in the Trust. (Id. Ex. C, Trust Prospectus 

Supplement S-12.) On March 30, 2005, the Trust was terminated. (Compl. ¶ 17.) 

Beginning on or about September 25, 2008, Chase sent, and Plaintiffs paid, many bills in 

which Chase asserted that it was the creditor and servicer of Plaintiffs’ Note and Mortgage. 

(Compl. ¶ 1.) 

According to public records, which the Court may consider in a motion to dismiss, see

U.S. v. Wood, 925 F.2d 1580, 1582 (7th Cir. 1991),1

 on September 25, 2008, the federal 

government’s Office of Thrift Supervision closed WaMu and the Federal Deposit Insurance 

Corporation (“FIDC”) was named receiver. (Purchase and Assumption Agreement between JP 

Morgan Chase Bank, NA and the FDIC (“P&A Agreement”) 1.)2

 That same day, Chase and the 

 

1

 The Court may also consider public court documents at the motion to dismiss stage without 

converting a motion to dismiss into a motion for summary judgment. See Henson v. CSC Credit 

Servs., 29 F.3d 280, 284 (7th Cir. 1994). 

2

 The P&A Agreement is publicly available on the FDIC’s website: 

www.fdic.gov/about/freedom/Washington_Mutual_P_and_A.pdf. Other courts have taken judicial 

notice of the P&A Agreement because it is a public record and not the subject of reasonable dispute. 

See e.g., Yetiv v. Chase Home Fin. LLC, No. 4:11-cv-01250, 2012 WL 112597, at *4 n.1 (S.D. Tex. 

Jan. 11, 2012) (taking judicial notice of the P&A Agreement and collecting cases in which other 

courts also took judicial notice of the P&A Agreement and its provisions); Nguyen v. Bank of Am. 

Nat. Ass’n, 11-CV-03318, 2011 WL 5574917, at *3-4 (N.D. Cal. Nov. 15, 2011); McCann v. Quality 

Loan Service Corp., 729 F. Supp. 2d 1238, 1241 (W.D. Wash. 2010); Molina v. Wash. Mut. Bank, 

No. 09-CV-00894, 2010 WL 431439, at *3 (S.D. Cal. Jan. 29, 2010); Allen v. United Fin. Mortgage 

Corp., 660 F. Supp. 2d 1089, 1093-94 (N.D. Cal. 2009). Additionally, Plaintiffs acknowledge the 

P&A Agreement in their Response Brief and recognize that the P&A Agreement “transferred 
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FDIC entered into an agreement pursuant to which Chase purchased “all right, title, and interest 

of the Receiver in and to all of the assets” of WaMu and its subsidiaries. (Id. § 3.1.) The P&A 

Agreement also stated that Chase “specifically purchases all mortgage servicing rights and 

obligations of [WaMu].” (Id.) 

On August 8, 2011, a law firm sent Plaintiffs a letter identified as “an attempt to collect a 

debt.” (Id. ¶ 21.) The letter stated that the firm “represents the holder of a Mortgage and Note” 

for Plaintiffs’ house. (Compl., Ex. H, Debt Collection Letter ¶ 3.) The letter also stated that “the 

current creditor is JP Morgan Chase Bank” and “[t]he current servicer of the loan is JP Morgan 

Chase Bank.” (Id. ¶ 4.) 

According to public court documents, on August 11, 2011, Chase filed a complaint for 

foreclosure against Plaintiffs in the Circuit Court of Cook County. See Circuit Court of Cook 

County, County Dep’t, Chancery Division, case number 11-CH-28430. 

On April 27, 2012, Plaintiffs filed this suit alleging that Chase never acquired an interest 

in their Note or Mortgage and, therefore, that Chase’s attempts to collect payments from them 

were fraudulent. Chase contends that it owned Plaintiffs’ debt and moves to dismiss Plaintiffs’ 

claims pursuant to Federal Rules of Civil Procedure (“Rule”) 12(b)(6) and 9(b). 

Legal Standard 

A motion under Rule 12(b)(6) challenges the sufficiency of the complaint. Christensen v. 

Cnty. Of Boone, 483 F.3d 454, 457 (7th Cir. 2007). Under the federal notice pleading standards, 

“a plaintiff’s complaint need only provide a short and plain statement of the claim showing that 

the pleader is entitled to relief, sufficient to provide the defendant with fair notice of the claim 

 

servicing rights and obligations of WaMu to Chase.” (Pl.’s Resp. Opp’n Mot. 5.) Plaintiffs deny, 

however, that the P&A Agreement transferred rights related to their Note and Mortgage to Chase 

because, Plaintiffs argue, “WaMu lost all interest in the loan” when the Trust was terminated in 

March 2005. (Id.) 
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and its basis.” Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008) (internal quotations 

omitted). When considering a motion to dismiss under Rule 12(b)(6), the Court must “accept[] 

as true all well-pleaded facts alleged, and draw[] all possible inferences in [the plaintiff’s] favor.” 

Id.

However, a complaint must allege “enough facts to state a claim to relief that is plausible 

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

550 U.S. 544, 570 (2007)). For a claim to have facial plausibility, a plaintiff must plead “factual 

content that allows the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Iqbal, 556 U.S. at 678. 

Additionally, Rule 9(b) provides that “[i]n all averments of fraud or mistake, the 

circumstances constituting fraud or mistake shall be stated with particularity.” Fed. R. Civ. P. 

9(b). This heightened pleading standard for claims involving fraud requires a party to plead “the 

who, what, when, where, and how: the first paragraph of any newspaper story.” U.S. ex rel. 

Lusby v. Rolls-Royce Corp., 570 F.3d 849, 853 (7th Cir. 2009). The particularity requirement of 

Rule 9(b) is designed to discourage a “sue first, ask questions later” philosophy. Pirelli 

Armstrong Tire Corp. Retiree Med. Benefits Trust v. Walgreen Co., 631 F.3d 436, 441 (7th Cir. 

2011). 

Discussion

I. Chase’s Interest in Plaintiffs’ Debt 

All of Plaintiffs’ claims in their five-count complaint are grounded on their theory that 

Chase had no interest in their Note or Mortgage.3 If Chase had an interest in their debt, either 

 

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 In Count I, Plaintiffs allege that Chase violated the Fair Debt Collection Practices Act (“FDCPA”), 

which imposes civil liability on debt collectors who use misrepresentation in debt collection, 15 

U.S.C. §§ 1692e, by seeking and receiving mortgage debt payments from Plaintiffs which “were 

actually “owed . . . to another,”” and by “knowingly and intentionally communicat[ing] . . . false . . . 
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equitably as servicer or legally as owner, none of Plaintiffs’ claims can survive a motion to 

dismiss.

A. Transfer to Trust 

To support their contention that Chase had no interest in their debt, Plaintiffs allege that 

after they signed the Note and Mortgage in March 2004 with WaMu, the original mortgagee, 

WaMu sold the Note and Mortgage to the Trust in May 2004. (Compl. ¶ 15.) Plaintiffs attach to 

the Complaint a Prospectus Supplement the Trust filed with the Securities and Exchange 

Commission (“SEC”) in May 2004 that describes the assets of the Trust. (Id., Ex. C, Trust 

Prospectus Supplement S-18.) According to the Prospectus Supplement, the Trust held 725 

mortgage loans, each of which had (1) a first payment date between September 2003 and June 

2004; (2) an original term to maturity of not more than thirty years; (3) payments due on the first 

day of each month; and (4) a conventional mortgage loan evidenced by a mortgage note with a 

fixed interest rate for approximately the first five years after origination and an adjustable 

interest rate after that. (Id.) The Prospectus Supplement also indicates that 19 of the 725 

mortgage loans in the Trust were Illinois mortgage loans. (Id. S-60.) 

 

statements to Mr. and Mrs. Jaimes representing or implying that JPMorgan Chase was and is the 

servicer of the Note.” (Compl. ¶¶ 28-42.) Plaintiffs also allege that Chase violated the FDCPA 

provisions that prohibit harassment and nondisclosure, §§ 1692d-g, by using “unfair and 

unconscionable means to collect the alleged debt,” by sending “threatening correspondence” to 

Plaintiffs regarding the debt, and by failing to properly validate the debt. (Id.) In Count II, Plaintiffs 

allege that Chase “falsely asserted that JPMorgan Chase was the “creditor” and “servicer” of the 

Note and the Mortgage” and that these “false claims” cloud title on their home. (Id. ¶¶ 45-50.) In 

Count III, Plaintiffs allege that Chase was unjustly enriched when it collected debt payments from 

Plaintiffs because “JPMorgan Chase has no legal interest in the Note or the Mortgage.” (Id. ¶¶ 51-

58.) In Count IV, Plaintiffs allege that Chase violated the Illinois Consumer Fraud and Deceptive 

Business Practices Act and the Uniform Deceptive Trade Practices Act by fraudulently asserting that 

it had an interest in Plaintiffs’ debt when “they had no rights under the Note or Mortgage.” (Id.

¶¶ 59-65.) And in count V, Plaintiffs allege that Chase violated the Illinois Fair Debt Collection 

Practices Act by seeking and receiving payments “that were actually owed to another entity” because 

“JPMorgan Chase is not a creditor.” (Id. ¶¶ 66-71.) 
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Plaintiffs contend that their Note and Mortgage was among the 19 Illinois mortgage loans 

placed in the Trust. (Compl. ¶ 15.) Plaintiffs admit that the Trust’s Prospectus Supplement does 

not mention their specific loan, property, or any transfer of their Note or Mortgage, but they 

claim that at this point they do not have access to all of the information that Defendants have, 

including information about whether their Mortgage was placed in the Trust. (Pls.’ Resp. Opp’n. 

Dismiss ¶ 7.) 

At the motion to dismiss stage when the Court must accept as true all well-pleaded facts 

and draw all possible inferences in the plaintiff’s favor, Tamayo, 526 F.3d at 1081, Plaintiffs 

have pled enough facts to make it plausible that their Mortgage was sold to the Trust. The 

Trust’s Prospectus Supplement does not identify any of the specific mortgages that were sold to 

the Trust; it identifies only the characteristics of the mortgages sold to the Trust. Plaintiffs’ 

Mortgage, attached to the Complaint as Exhibit A, has the characteristics of the mortgages held 

by the Trust as described in the Prospectus Supplement: the first payment date on Plaintiffs’ 

Mortgage is May 1, 2004; the original term to maturity is thirty years; payments are due on the 

first of each month; the initial interest rate is 4.250% for the first five years and adjustable after 

that; and the mortgage originated in Illinois. (Compl. Ex. A, Jaimes Mortgage 1-2.) 

But the Court’s analysis does not end there. The Seventh Circuit has held that a 

mortgage servicer may have equitable ownership of a claim against a borrower and, therefore, 

may, like a mortgage owner, sue the borrower. CWCapital Asset Management, LLC v. Chi. 

Properties, LLC, 610 F.3d 497, 501 (7th Cir. 2010). In CWCapital, a mortgage servicer brought 

suit against the borrower. Id. at 499. The mortgage was part of a mortgage-backed security held 

by a trust. Id. at 500. Pursuant to a pooling and servicing agreement (“PSA”) signed by the 

trustee and the servicer, the trust held legal title to the mortgage and the servicer acted as the 
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trust’s collection agent. Id. at 500-501. The PSA provided that the servicer “shall . . . have full 

power and authority, acting alone, to do or cause to be done any and all things in connection with 

such servicing and administration which it may deem necessary or desirable.” Id. at 500. The 

Seventh Circuit held that this language established that “[t]he securitization trust holds merely 

the bare legal title; the Pooling and Servicing Agreement delegates what is effectively equitable 

ownership of the claim . . . to the servicer.” Id. at 502. The Court also noted that the trustee 

submitted an affidavit ratifying the servicer’s suit against the borrower. Id. Consequently, the 

Seventh Circuit held, the servicer “ha[d] the whip hand” and could bring suit against the 

borrower. Id.

Here, when WaMu sold mortgages and notes to the Trust, WaMu relinquished legal title 

to those notes and mortgages. (Trust Prospectus Supplement S-17.) (“The mortgage pool will be 

the primary asset of the Trust. The Trust will own the right to receive all payments of principal 

and interest on the mortgage loans due after May 1, 2004.”) WaMu remained, however, the 

servicer of the mortgages and notes in the Trust. (Compl. ¶ 15.) As servicer, WaMu’s duties 

included “collection and remittance of principal and interest payments, administration of 

mortgage escrow accounts, collection of insurance claims and, if necessary, foreclosure.” (Trust 

Prospectus 24-24.) Thus, WaMu retained equitable ownership of the mortgages in the Trust and 

could collect payments from borrowers whose mortgages were in the Trust. 

As a result, if Plaintiffs’ Note and Mortgage were transferred to the Trust, as Plaintiffs 

contend, Chase would still have an interest in Plaintiffs’ debt if WaMu had remained the servicer 

of the Trust until September 25, 2008, when WaMu closed and Chase entered into a P&A 

Agreement pursuant to which Chase purchased WaMu’s assets, including Plaintiffs’ Note and 
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Mortgage. In such a scenario, Plaintiffs would not have a plausible theory that allows the court 

to draw the reasonable inference that Chase is liable for the misconduct alleged. 

B. Trust’s Termination 

Under Plaintiffs’ theory, however, whether WaMu had an equitable ownership in 

Plaintiffs’ debt after it was transferred to the Trust is immaterial because Plaintiffs contend that 

the Trust was terminated on March 30, 2005, and the Trust’s assets “were distributed to the 

certificate-holders of the Trust” such that the certificate-holders “became the only mortgagees, 

the only owners and legal holders of the Note and the Mortgage.” (Compl. ¶¶ 17-18.) As a 

result, Plaintiffs argue, “WaMu lost all interest in the loan” and neither WaMu nor any of its 

subsidiaries, parents, or successors had any authority to collect mortgage payments, assign the 

Note or Mortgage, or foreclose. (Id. ¶ 19, Pl.’s Resp. Opp’n Mot. ¶ 12.) 

This is where Plaintiffs’ theory breaks down. Because Plaintiffs argue that “WaMu lost 

all interest in the loan” at the Trust’s termination, they necessarily argue that WaMu lost its 

status as the loan’s servicer. But Plaintiffs do not argue that a different loan servicer was, or 

should have been, servicing their debt after the Trust’s termination. This is not facially plausible. 

First, a trust’s termination does not terminate the payment obligations on the mortgages 

in the trust. A mortgage-backed securitization trust, like the Trust here, merely holds a group of 

mortgage loans. The process of grouping mortgage loans into a security held by a trust, known 

as securitization, does not change the underlying loan obligations of the borrowers whose 

mortgages comprise the trust. See Pagano v. One West Bank, F.S.B., No. 11-00192, 2012 WL 

74034, at *5 n.6 (D. Haw. Jan. 10, 2012) (“Courts have rejected theories that securitization alters 

the relationship or rights of the original parties”); Reyes v. GMAC Mortg. LLC, No. 2:11-CV100, 2011 WL 1322775, at *3 (D. Nev. Apr. 5, 2011) (“securitization “merely creates a ‘separate 
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contract, distinct from [p]laintiffs[‘] debt obligations” under the note and does not change the 

relationship of the parties in any way”) (citing Commonwealth Prop. Advocates, LLC v. First 

Horizon Home Loan Corp., No. 2:10-cv-375, 2010 WL 4788209, at *4 (D. Utah Nov. 16, 

2010)); Upperman v. Deutsche Bank Nat’l Trust Co., No. 1:10-CV-149, 2010 WL 1610414, at 

*3 (E.D. Va. Apr. 16, 2010) (“[t]here is no authority . . . that the mere existence of a pooling and 

servicing agreement or investment trust can relieve borrowers of their obligations to perform 

under a duly executed promissory note and deed of trust.”) 

Plaintiffs’ own Mortgage confirms this. Plaintiffs’ Mortgage provides that the “Lender 

may transfer this Note” and that “the Note . . . can be sold one or more times without prior notice 

to Borrower.” (Compl. Ex. B, Jaimes Mortgage ¶ 20.) The Mortgage further provides that such 

a sale “might result in a change in the entity (known as the “Loan Servicer”) that collects 

Periodic Payments due under the Note.” (Id.) The Mortgage never states that upon 

securitization or transfer or a change in servicer that the borrowers’ payment obligations 

disappear. Rather, the Mortgage provides that the “Borrower has promised to pay this debt . . . 

in full,” regardless of who owns or services the loan. (Id. 1.) It is reasonable, therefore, for the 

Court to infer, even under Plaintiffs’ theory, that, upon the Trust’s termination, the servicing 

rights on Plaintiffs’ debt remained with WaMu. WaMu was the original servicer, the servicer 

under the Trust, and Plaintiffs fail to allege that anyone other than WaMu was the servicer of 

their debt after the Trust’s termination. 

Second, in September 2008, Chase assumed, through the P&A Agreement, “all right, 

title, and interest . . . in and to all of the assets” of WaMu and its subsidiaries, including “all 

mortgage servicing rights and obligations of [WaMu].” (P&A Agreement § 3.1.) At that same 

time, Chase began sending Plaintiffs bills for their Mortgage, which Plaintiffs paid. (Compl. 
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¶ 1.) Plaintiffs do not argue that they were billed twice for the same loan payment obligation 

beginning in September 2008, nor do they contend that Chase failed to credit them for the 

payments they made to Chase after Chase billed them. See Sipe v. Countrywide Bank, No. CVF-09-798, 2010 WL 2773253, at *14 (E.D. Cal. July 13, 2010) (rejecting the claim that 

defendant misrepresented it had the right to collect payments on pooled mortgages, reasoning 

that “Plaintiff agreed to make monthly payments pursuant to the terms of the promissory note 

and deed of trust when he obtained the loan . . . Whether or not [defendant] is legally entitled to 

service Plaintiff’s [loan] does not harm Plaintiff in the absence of allegations that Plaintiff was 

also making loan payments to a third party.”) Thus, again, even under Plaintiffs’ theory, it is 

reasonable for the Court to infer that the servicing rights on Plaintiffs’ debt transferred from 

WaMu to Chase pursuant to the P&A Agreement in September 2008. 

In short, it is insufficient for Plaintiffs to plead that the Trust’s termination destroyed 

WaMu’s servicing rights and that Chase fraudulently serviced the debt beginning in September 

2008 without offering any allegation as to who became the servicer of their debt upon the Trust’s 

termination. Plaintiffs’ theory that their loan obligations terminated when the Trust was 

terminated because the servicing rights on their debt were not sold or transferred to another 

entity does not provide the Court with “factual content that allows the court to draw the 

reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 

678. Moreover, Plaintiffs’ theory fails to provide the Court with “the who, what, when, where, 

and how,” of Chase’s fraud as required by Rule 9(b). Fed. R. Civ. P. 9(b); Rolls-Royce Corp., 

570 F.3d at 853. 
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Because Plaintiffs have failed to plead factual content that allows the Court to draw a 

reasonable inference that Chase never had an interest in their debt, and all of Plaintiffs’ claims 

against Chase are predicated on that theory, Plaintiffs’ claims against Chase are dismissed.4

II. Leave to Amend 

In its Motion to Dismiss, Chase contends that Plaintiffs should not be given leave to 

amend their complaint because any amendments would be futile. (Def.’s Mot. Dismiss 6-7.) 

Plaintiffs have not moved for leave to amend their complaint, and Plaintiffs stated in their 

Response Brief that they “do not believe that any amendment will be necessary.” (Pls.’ Resp. 

Opp’n Mot. 4.) 

Federal Rule of Civil Procedure 15(a) provides that leave to amend a complaint “shall be 

freely given when justice so requires.” “In the absence of any apparent or declared reason – such 

as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure 

deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue 

of allowance of the amendment, futility of amendment, etc. – the leave sought should, as the 

rules require, be ‘freely given.’” Barry Aviation Inc. v. Land O’Lakes Municipal Airport Com’n, 

377 F.3d 682, 687 (th Cir. 2004) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). 

Given this standard, it would be premature for the Court to bar Plaintiffs from amending 

their complaint at this stage of the litigation. Plaintiffs have not yet moved to amend their 

complaint, and the Court cannot conclude at this time that all possible amendments would be 

futile. Thus, Defendant’s request to bar Plaintiffs from amending their complaint is denied. 

The Court reminds Plaintiffs, however, that Rule 11 prohibits parties and attorneys from 

bringing claims for an improper purpose, such as to harass cause an unnecessary delay. Fed. R. 

 

4

 Because Plaintiffs’ claims against Chase fail for the reasons stated, the Court need not address Chase’s 

argument that, as a bank, the FCDPA and ICAA are not applicable to Chase. 
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Civ. P. 11(b)(1). The Court also notes that other courts have found similar claims to be baseless 

and sanctionable. See, e.g., Nguyen, 2011 WL 5574917, at *6 (ordering Plaintiff’s counsel to 

show cause as to why he should not be sanctioned under Rule 11 for bringing repeated actions 

alleging Chase had no interest in Plaintiff’s debt for an improper purpose and stating that “the 

Court finds that the complaint in this case has been filed for the purpose of causing undue delay 

to avoid what appears to be a proper foreclosure sale. To allow Plaintiff yet another bite at the 

apple at this point would unduly prejudice the Defendants . . . Therefore, the Court finds that any 

amendment would likely be futile.”) If Plaintiffs seek leave to amend their complaint, they must 

do so within twenty-eight (28) days of this order. 

Conclusion 

For the reasons herein, the Court grants Chase’s motion to dismiss [20]. Plaintiffs are 

granted leave to file an amended complaint within twenty-eight (28) days of this Order. 

SO ORDERED ENTER: 2/25/13 

 

______________________________________ 

JOHN Z. LEE 

 U.S. District Judge