1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

KRZYSZTOF FRAK,

Plaintiff, 

v.

MORGAN STANLEY AND SAXON 

MORTGAGE SERVICES, INC., 

 Defendants.

)

)

)

)

)

)

)

)

)

)

20 C 2722

Judge Charles P. Kocoras 

ORDER

Before the Court is Defendants’ Morgan Stanley and Saxon Mortgage Services

(“Saxon”) (collectively, “Defendants”) motion to dismiss Plaintiff Krzysztof Frak’s 

(“Plaintiff”) Complaint. For the following reasons, the Court grants Defendants’ 

motion. 

STATEMENT

For purposes of this motion, the Court accepts as true the following facts from 

the complaint. Alam v. Miller Brewing Co., 709 F.3d 662, 665–66 (7th Cir. 2013). All 

reasonable inferences are drawn in Plaintiff’s favor. League of Women Voters of 

Chicago v. City of Chicago, 757 F.3d 722, 724 (7th Cir. 2014). The Court also draws 

facts where necessary from relevant state-court and bankruptcy-court records. See 

Ennenga v. Starns, 677 F.3d 766, 773 (7th Cir. 2012) (“Taking judicial notice of matters 

Case: 1:20-cv-02722 Document #: 24 Filed: 11/05/20 Page 1 of 8 PageID #:189
2

of public record need not convert a motion to dismiss into a motion for summary 

judgment.”). 

“All of the claims” in Plaintiff’s Complaint stem from Defendants’ alleged 

breach of a home mortgage modification which led to Plaintiff’s bankruptcy. Compl., 

ECF. No. 1 at 2 (emphasis added). Defendant Saxon serviced Plaintiff’s mortgage 

from May 2009 through October 2012. Id. at 3. In June and July 2009, Saxon admitted 

receipt of Plaintiff’s requested mortgage modification. Id. at 5. In line with this 

ostensibly final modification, Saxon collected payments from Plaintiff in September, 

October, and November 2009. Id. Then, in December 2009, Saxon did not finalize the 

modification. Id. In February 2010, Saxon rejected Plaintiff’s payment as insufficient 

and, on April 8, 2010, formally denied Plaintiff’s mortgage modification in a denial 

letter. Id. Plaintiff’s home was ultimately foreclosed upon. Id. Against this factual 

backdrop, Plaintiff’s May 2020 Complaint alleges (1) wrongful foreclosure (Count I); 

(2) breach of contract (Count II); (3) and violations of the Illinois Consumer Fraud Act 

(“ICFA”) (Count III). Id. at 10-14. 

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the 

sufficiency of the complaint, not the merits of the case.” McReynolds v. Merrill Lynch 

& Co., 694 F.3d 873, 878 (7th Cir. 2012). The allegations in the complaint must set 

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

relief.” Fed. R. Civ. P. 8(a)(2). A plaintiff need not provide detailed factual allegations, 

Case: 1:20-cv-02722 Document #: 24 Filed: 11/05/20 Page 2 of 8 PageID #:190
3

but it must provide enough factual support to raise its right to relief above a speculative 

level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 

A claim must be facially plausible, meaning that the pleadings must “allow . . . 

the court to draw the reasonable inference that the defendant is liable for the misconduct 

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The claim must be described

“in sufficient detail to give the defendant ‘fair notice of what the . . . claim is and the 

grounds upon which it rests.’” E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 

776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). “[T]hreadbare recitals of the 

elements of a cause of action, supported by mere conclusory statements,” are 

insufficient to withstand a 12(b)(6) motion to dismiss. Iqbal, 556 U.S. at 678.

The Court “liberally construe[s]” Plaintiff’s Complaint. Estelle v. Gamble, 429 

U.S. 97, 106 (1976). However, “even pro se litigants must expect to file a legal 

argument and some supporting authority. A litigant who fails to press a point by 

supporting it with pertinent authority, or by showing it is sound despite a lack of 

supporting authority, forfeits the point. We will not do his research for him.” Mathis v. 

New York Life Ins. Co., 133 F.3d 546, 548 (7th Cir. 1998) (cleaned up).1

Applying these principles, Plaintiff’s claims all fail as a matter of law. The Court 

broadly observes that Plaintiff has not responded to most of Defendants’ arguments. 

1 The Court uses the parenthetical “cleaned up” to enhance the readability of this opinion. See Jack 

Metzler, Cleaning Up Quotations, 18 J. App. Prac. & Process 143 (2017).

Case: 1:20-cv-02722 Document #: 24 Filed: 11/05/20 Page 3 of 8 PageID #:191
4

We therefore assess Defendants’ arguments against the scant information provided by 

Plaintiff.

At the outset, the Court dismisses the “wrongful foreclosure” claim (Count I) 

because it is not an independent cause of action under Illinois law. Acevedo v. 

CitiMortgage, Inc., 2013 WL 1283807, at *6 (N.D. Ill. 2013). 

The Court also dismisses this claim and Plaintiff’s remaining claims as time 

barred. First, Count II—the breach of contract claim—is subject to a ten-year statute 

of limitations. 735 ILCS 5/13-206; Newell v. Newell, 406 Ill. App. 3d 1046, 1051 (3rd 

Dist. 2011). Plaintiff’s cause of action accrued in either December 2009 when Plaintiff 

first knew of Defendants’ alleged breach or in February 2010 when Saxon rejected 

Plaintiff’s attempted payment. Plaintiff filed his Complaint on May 5, 2020, which is 

over ten years from either accrual period. This claim is therefore barred.2 Second, 

Plaintiff did not bring his ICFA claim within three years of when it accrued so that 

claim is likewise barred. Kopley Grp. V., L.P. v. Sheridan Edgewater Properties, Ltd., 

376 Ill. App. 3d 1006, 1020–21 (1st Dist. 2007) (citing 815 ILCS 505/10a(e)). And 

third, were the Court to infer that Plaintiff’s action arises under federal law, those causes 

would also be time barred. See, e.g., 12 U.S.C. § 2614 (RESPA statute of limitations 

of between one and three years depending on the section); 15 U.S.C. § 1692k(d)

(FDCPA statute of limitations of one year). 

2 Even if Plaintiff’s cause of action accrued on April 8, 2010 when Saxon formally denied Plaintiff’s 

mortgage modification that too would be untimely because the Complaint was filed about a month after the 

statute of limitations lapsed. 

Case: 1:20-cv-02722 Document #: 24 Filed: 11/05/20 Page 4 of 8 PageID #:192
5

Plaintiff’s oblique reference to three possible arguments against application of 

the statutes of limitations all fail to resuscitate his claims. 

First, the Court declines to apply the “discovery rule” because Plaintiff knew of 

the alleged breach in December 2009 when Plaintiff alleges that Saxon was required to, 

but did not, provide a permanent modification of Plaintiff’s loan. See Heiman v. Bimbo 

Foods Bakeries Distrib. Co., 902 F.3d 715, 720 (7th Cir. 2018) (declining to apply the 

discovery rule where plaintiff was aware of wrongful conduct and “knew or should have 

known of the existence of the right to sue the defendant at the time of the [breach]”).

Second, the Court also declines to apply equitable tolling which is an 

“extraordinary remedy that is rarely granted.” Carpenter v. Douma, 840 F.3d 867, 870 

(7th Cir. 2016) (cleaned up). “[A] plaintiff who invokes equitable tolling to suspend 

the statute of limitations must bring suit within a reasonable time after he has obtained, 

or by due diligence could have obtained, the necessary information.” Cada v. Baxter 

Healthcare Corp., 920 F.2d 446, 453 (7th Cir. 1990). Plaintiff has failed to do this. 

Instead, Plaintiff waited over a decade to pursue his claims and did not bring suit within 

a reasonable timeframe after he obtained the information necessary to pursue his claims. 

And finally, the Court’s COVID-19 General Order does not assist Plaintiff 

because his claims lapsed prior to the Court’s first COVID-19 General Order in March 

2020. Taken in the light most favorable to Plaintiff, his claims became time-barred in 

either December 2019 or February 2020—both of which were before the Court’s March 

General Order. Moreover, the Court observes that the Court suspended the prohibition 

Case: 1:20-cv-02722 Document #: 24 Filed: 11/05/20 Page 5 of 8 PageID #:193
6

against pro se parties emailing their filing to the Clerk’s office, and allowed pro se

parties, like Plaintiff, to initiate new actions by email because of the pandemic. 

Therefore, Plaintiff could have initiated this action during that time period. 

For these reasons, the Court dismisses Plaintiff’s claims as time barred. Because 

the Court’s dismissal is on statute of limitations grounds, there is no “practical 

distinction here between a dismissal with prejudice and a dismissal without prejudice 

because, even if the court dismissed without prejudice, refiling would be futile[.]” 

David v. Wal-Mart Stores, Inc., 2016 WL 2344576, at *3 (N.D. Ill. 2016), aff'd, 669 F. 

App'x 793 (7th Cir. 2016). However, as a technical matter the Court nevertheless 

formally dismisses Plaintiff’s claim with prejudice because any amendment would be 

“barred by the statute of limitations.” Rodriguez v. United States, 286 F.3d 972, 980 

(7th Cir. 2002).

Even were Plaintiff’s claims not barred by the relevant statute of limitations, 

Plaintiff’s failure to disclose his claims in his 2019 bankruptcy petition judicially estops 

him from pursuing his claims. This is because “a debtor in bankruptcy who denies 

owning an asset, including a chose in action or other legal claim, cannot realize on that 

concealed asset after the bankruptcy ends.” Cannon-Stokes v. Potter, 453 F.3d 446, 448 

(7th Cir. 2006). Even were the Court to grant leave for the bankruptcy trustee to join 

this action under Federal Rule of Civil Procedure 17 as a real party in interest, Plaintiff

is still judicially estopped. See Matthews v. Potter, 316 F. App’x 518, 522 (7th Cir. 

2009) (“Courts consistently hold that a debtor who conceals a legal claim and denies 

Case: 1:20-cv-02722 Document #: 24 Filed: 11/05/20 Page 6 of 8 PageID #:194
7

owning the asset in bankruptcy is judicially estopped from later pursuing that claim to 

the debtor’s personal benefit.”). 

The bankruptcy filings, which this Court takes judicial notice of, conclusively 

demonstrate that estoppel applies here. Any actionable conduct took place in or around

2009 when Defendants’ allegedly breached the mortgage modification. Taken in the 

light most favorable to Plaintiff, this conduct took place at the absolute latest in October 

2012 when Saxon stopped servicing Plaintiff’s loan. But Plaintiff’s debts were 

discharged nearly seven years later in 2019. And, before they were discharged, Plaintiff 

expressly attested—under oath—that he had no “claims against third parties” whether 

or not he had “filed a lawsuit or made a demand for payment.” Because Plaintiff did not 

disclose the instant lawsuit, he is judicially estopped from pursuing it. 

Plaintiff’s argument that this omission was innocent or inadvertent does not 

resurrect his claim because Plaintiff’s “subjective intent does not matter” for the Court’s 

analysis. Becker v. Verizon N., Inc., 2007 WL 1224039, at *1 (7th Cir. 2007); accord

Williams v. Hainje, 375 F. App'x 625, 628 (7th Cir. 2010) (affirming a district court’s 

finding that a plaintiff’s failure to disclose was not inadvertent); Weingard v. Unifund 

CCR, LLC, 2015 WL 2149482, at *2 (N.D. Ill. 2015) (applying judicial estoppel even 

where plaintiff may not have been aware of the specific claim because the alleged 

conduct took place before the bankruptcy action was filed). 

Case: 1:20-cv-02722 Document #: 24 Filed: 11/05/20 Page 7 of 8 PageID #:195
8

Accordingly, Plaintiff’s claims are also dismissed as judicially estopped.3

Because Plaintiff is judicially estopped from pursuing his claims—and will 

remain estopped with or without any amendment—the Court exercises its broad 

discretion to deny Plaintiff leave to amend because any amendment would be futile. 

See Gonzalez-Koeneke v. West., 791 F.3d 801, 807 (7th Cir. 2015) (observing that 

courts retain “broad discretion to deny leave to amend” “where the amendment would 

be futile”); Timas v. Klaser, 23 F. App'x 574, 578 (7th Cir. 2001) (affirming district 

court’s denial of leave to amend in a pro se matter and noting that “a plaintiff's right to 

amend as a matter of course is not absolute”)

CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss is granted. Plaintiff’s 

complaint is dismissed with prejudice. Civil case terminated. It is so ordered. 

Dated: 11/5/2020 

_________________________

Charles P. Kocoras

United States District Judge

3 Because the Court dismisses Plaintiff’s claims on statute of limitations and judicial estoppel grounds, the 

Court declines to address whether all of Plaintiff’s counts state a claim upon which relief can be granted.

Case: 1:20-cv-02722 Document #: 24 Filed: 11/05/20 Page 8 of 8 PageID #:196