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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ANTONIO SPIZZIRRI, JR.,

Plaintiff,

v.

PNC BANK, N.A. and SAFEGUARD 

PROPERTIES MANAGEMENT, LLC,

Defendants.

Case No: 1:20-cv-03839

Honorable Judge Sharon Johnson Coleman

PLAINTIFF’S RESPONSE TO DEFENDANT’S PARTIAL MOTION TO DISMISS 

PLAINTIFF’S COMPLAINT

Plaintiff ANTONIO SPIZZIRRI, JR. (“Plaintiff”), by and through his undersigned counsel, 

responding to Defendant SAFEGUARD PROPERTIES MANAGEMENT, LLC’S (“Safeguard”)

Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) (“Safeguard’s Motion”) as follows:

INTRODUCTION

The alleged facts in this case are appalling and every homeowner’s worst nightmare.

Without notice or an appropriate court order, Safeguard forcefully broke into Plaintiff’s property, 

improperly performed “property preservation” services that resulted in significant water damage, 

and stole Plaintiff’s personal property. Not surprisingly, Safeguard’s conduct has and continues to 

traumatize Plaintiff to this day. 

Safeguard’s Motion seeks dismissal of Plaintiff’s negligence claim (Count VII), one of the 

six claims asserted against Safeguard. Safeguard’s Motion lacks merit as it blatantly ignores the 

detailed factual allegations in Plaintiff’s Complaint that give rise to Plaintiff’s negligence claim. 

Simply put, Safeguard’s Motion demonstrates Safeguard’s miscomprehension of the applicable

legal standard at the pleading stage. Reading like a summary judgment brief without supporting 

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evidence, Safeguard’s Motion improperly asks the Court to make evidentiary determinations at the 

pleading stage. For the reasons set forth below, Safeguard’s Motion must be denied as a matter of 

law.

BACKGROUND

On March 6, 2015, Plaintiff executed a mortgage (“Mortgage”) and note (“subject loan”) 

in favor of co-defendant PNC Bank, N.A. (“PNC”) to refinance an existing mortgage loan secured 

by Plaintiff’s property located at 5725 Riviera Boulevard, Plainfield, Illinois (“Property”). (Compl. 

¶¶12-13.) In 2016, Plaintiff moved out of the Property after purchasing a new home to 

accommodate his growing family. (Id. at ¶15.) Despite moving out of the Property, Plaintiff left a 

significant amount of personal property in the Property. (Id. at ¶16.)

In December 2017, while current on the subject loan, Plaintiff contacted PNC regarding 

hardship assistance as he was having trouble keeping up with the payments on the subject loan. 

(Id. at ¶¶17-19.) PNC informed Plaintiff that he would not qualify for any hardship assistance 

unless he was two months delinquent on the subject loan. (Id. at ¶18.) After defaulting on the 

subject loan, Plaintiff listed the Property for sale. (Id. at ¶20.) While the Property was listed for 

sale, Plaintiff made frequent visits to the Property, maintained utility services, and kept the 

Property in good condition to preserve its habitability and marketability. (Id. at ¶21.) At all times 

relevant, the Property was furnished and well maintained. (Id. at ¶23.) Importantly, Plaintiff 

remained in constant contact with PNC during the time the Property was listed for sale and PNC 

and Safeguard had actual knowledge that Plaintiff was in the process of selling the Property. (Id. 

at ¶¶22, 59.)

On June 22, 2018, PNC initiated mortgage foreclosure proceedings against Plaintiff and 

the Property. (Id. at ¶24.) On or about July 31, 2018, PNC issued work orders to Safeguard to 

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perform property preservation services at the Property. (Id. at ¶25.) On or about August 1, 2018, 

Plaintiff and his contractors visited the Property and discovered that the locks to the Property were 

changed and that the garage door opener was not working (Id. at ¶26.) As a result, Plaintiff was 

unable to gain access to the Property. (Id.) Through the use of force, Plaintiff was able to gain 

access to the Property. (Id. at ¶28.) Upon entering the Property, Plaintiff discovered (1) an “REO 

Entry Log” taped to the kitchen counter and (2) that the garage door opener was disconnected. 

(Id.) After further inspection, Plaintiff discovered that building supplies, tools, and personal 

property were missing from the Property. (Id. at ¶29.) Enraged by the unauthorized trespass to the 

Property, Plaintiff called PNC to inform PNC of his startling discovery. (Id. at ¶30.) PNC denied 

any involvement in the trespass and referred Plaintiff to Safeguard for more information. (Id. ¶¶30-

31.) Upon speaking to a Safeguard representative, Plaintiff was informed that Safeguard was hired 

by PNC to perform property preservation at the Property “now that it is bank-owned.” (Id. at ¶32.)

Upon discovering that Safeguard performed the property preservation services at PNC’s direction, 

Plaintiff contacted PNC via phone. (Id. at ¶¶34-35.) During the call, PNC (1) advised Plaintiff that 

it ordered the property preservation services because PNC’s vendor deemed the property 

abandoned; (2) denied any wrongdoing; and (3) blamed Safeguard for the missing personal 

property. (Id. at ¶¶35-36.) On or about August 6, 2019, some of Plaintiff’s personal property was 

returned. (Id. at ¶37.) 

Despite having actual knowledge that Plaintiff objected to Safeguard’s entry into the 

Property, Safeguard again entered the Property without authorization on multiple occasions. (Id. 

at ¶¶46-56.) During one of the visits, Safeguard improperly “winterized” the Property, causing 

flooding and water damage in the basement of the Property. (Id.) As a result of the water damage, 

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Plaintiff was forced to pull the Property from the market and Plaintiff eventually lost the Property 

via foreclosure. (Id. at ¶64.)

LEGAL STANDARD

To survive a motion to dismiss brought pursuant to Rule 12(b)(6), “a complaint must 

contain sufficient factual material, accepted as true, to ‘state a claim to relief that is plausible on 

its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) citing Bell Atl. Corp. v. Twombly, 550 U.S. 

544, 570 (2007). In ruling on a pending motion to dismiss, the court must construe the allegations 

in the complaint in a light most favorable to the plaintiff, accept as true all well-pleaded factual 

allegations set forth therein, and draw all reasonable inferences in favor of the non-moving party. 

Fednav Int’l Ltd. v. Continental Ins. Co., 624 F.3d 834, 837 (7th Cir. 2010). In the event the court 

finds that dismissal is warranted, the court should grant the plaintiff leave to amend unless 

amendment would be futile. Ford v. Neese, 119 F.3d 560, 563 (7th Cir. 1997).

ARGUMENT

I. Plaintiff’s Negligence Claim Against Safeguard (Count VII) is Adequately 

Pled and Should Not Be Dismissed

“To prove a defendant’s negligence under Illinois law, a plaintiff must establish the 

existence of a duty of care owed by the defendant to the plaintiff, a breach of that duty, and an 

injury proximately caused by that breach.” Hutchison v. Fitzgerald Equip. Co., Inc., 910 F.3d 

1016, 1022 (7th Cir. 2018). Safeguard contends that Plaintiff’s negligence claim fails because “at 

no point in time did Safeguard exercise control or dominion over the Property or Plaintiff’s 

personal property as alleged in the Complaint.” (Def. Mot. pg. 3). Safeguard’s contention must fail 

because it blatantly ignores the allegations in Plaintiff’s Complaint, which must be accepted as 

true at the pleading stage. See Fednav Int’l Ltd., 624 F.3d at 837 (in ruling on a motion to dismiss, 

court must “accept as true all well-pleaded factual allegations” in a complaint). Specifically, 

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Plaintiff’s Complaint is riddled with detailed allegations that Safeguard exercised control or 

dominion over the Property:

25. On or about July 31, 2018, PNC issued a work order(s) to Safeguard to perform 

property preservation services at the Property. (Complt. ¶25.)

32. Safeguard informed Plaintiff that they were contracted to perform preservation 

services on the Property “now that it is bank-owned.” (Compl. ¶32)

48. Notwithstanding, Safeguard, once more, entered the Property to “winterize” it 

themselves. (Compl. ¶48)

49. Safeguard also entered Plaintiff’s Property on January 4, 2019 without consent. 

(Compl. ¶49)

50. Safeguard discovered the basement flooded, and returned on January 10, 2019. 

(Compl. ¶50)

52. On February 11, 2019, Safeguard came back only to discover the basement flooded 

once more. (Compl. ¶52)

53. Two day later, on February 13, 2019, Safeguard replaced Plaintiff’s sump pump. 

(Compl. ¶53)

54. On March 16, 2019, Safeguard returned and discovered the breakers off and the 

basement flooded again. (Compl. ¶54)

55. Safeguard turned the breakers back on, and water was removed from the basement. 

(Compl. ¶55) 

134. [Safeguard] voluntarily exercised control and dominion over the Property and 

Plaintiff’s personal property. Once a party voluntarily undertakes to perform a service, 

it must do so in a manner that does not increase the risk of harm to the person affected 

by the undertaking. (Compl. ¶134) (emphasis added)

135. [Safeguard] took affirmative steps to control access to and possession of the

Property by changing the locks and unplugging the garage door opener, restricting 

access for a period of time, replacing Plaintiff’s sump pump, and exercising dominion 

and control over the personal property therein. (Compl. ¶135) (emphasis added)

As demonstrated by the face of Plaintiff’s Complaint, Plaintiff alleges that not only did Safeguard 

exercise control and dominion over the Property, but that it also acknowledged that PNC hired it 

do the same. (Compl. at ¶32.) Given that the Court must accept Plaintiff’s allegations that 

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Safeguard exercised control or dominion over the Property as true at the pleading stage, 

Safeguard’s denial of the same must be rejected as a matter of law. 

Safeguard next contends that Plaintiff’s negligence claim also fails because Plaintiff “fails 

to allege with any detail how Safeguard breached its purported duty.” (Def. Mot. pg. 3.) This 

contention must fail because it also ignores the face of Plaintiff’s Compliant, which details how 

Safeguard breached its duty. Specifically, Plaintiff alleges inter alia:

136. [Safeguard] breached [its] duty to take reasonable steps to protect the Property and 

the personal property contained therein, comply with the law, or follow the practices 

and procedures within its own manuals and work order guidelines. (Compl. ¶136) 

137. [Safeguard] breached [its] duty by (a) failing to protect or secure the Property and 

its contents; (b) violating the law; (c) failing to allow its own formalized procedures, 

and (d) failing to use reasonable care when “securing” the subject property. (Compl. 

¶137) 

138. [Safeguard] breached [its] duty to act prudently by absconding with Plaintiff’s 

personal property and by failing to prevent any property loss after voluntarily exercising 

control and dominion over the Property and its contents. (Compl. ¶138)

Realizing its contention is refuted by the face of Plaintiff’s Complaint, Safeguard pivots and

discounts Plaintiff’s allegations as “broad and unsupported.” Unfortunatley for Safeguard, Plaintiff 

is not required “to prove his case at the pleading stage.” Muir v. NBTY, Inc., 2016 U.S. Dist. LEXIS 

129494, at *20 (N.D. Ill. 2016); see also Carlson v. CSX Transp., Inc., 758 F.3d 819, 827 (7th Cir. 

2004) (“[E]vidence is not required at the pleading stage”). Given that Plaintiff need not prove his 

case or submit evidentiary support at the pleading stage, Safeguard’s contention that Plaintiff’s 

claims are “broad and unsupported” must fail as a matter of law. 

Notably, Courts in this district have repeatedly held that allegations of faulty property 

preservation services ordered by mortgage companies to be sufficient to sustain a negligence 

claim. In Fannie Mae v. Obradovich, 2016 U.S. Dist. LEXIS 41522, at *16-17 (N.D. Ill. 2016), a 

case involving Safeguard and on all fours with this case, the court found that a plaintiff’s 

allegations that Safeguard performed improper property preservation services were sufficient to 

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sustain a negligence claim at the pleading stage. As the Obradovich court correctly highlighted, 

“[t]ort liability is commonly imposed upon strangers to the plaintiff, however, if they have failed 

to take reasonable care to avoid foreseeable injury to plaintiff.” Id. at *16. Here, as in Obradovich, 

Plaintiff alleges that Safeguard, acting on behalf of a mortgage servicer, performed faulty property 

preservation services that resulted in water damage that decreased the value of the underlying 

property. (Compl. ¶¶64, 136-138.) There is no question that Safeguard, upon voluntarily 

undertaking the property preservation services at the Property, owed Plaintiff a duty to act 

reasonably and act in a manner that does not increase the risk of harm to Plaintiff. Plaintiff 

sufficiently alleges that Safeguard breached its duty to Plaintiff by failing to (1) protect the 

Property; (2) use reasonable care when “securing” the Property; (3) use reasonable care in 

“winterizing” the Property; and (4) prevent property loss during the property preservation services 

it rendered. (Compl. ¶¶64, 136-138.) Accordingly, this Court should find that such allegations 

support a negligence claim at the pleading stage. 

Likewise, in Thakkar v. Ocwen Loan Servicing, LLC, 2017 U.S. Dist. LEXIS 143824, at 

*17 (N.D. Ill 2017), the court found that plaintiff’s allegations of faulty property preservation 

services at a property that was occupied and not abandoned to be sufficient to state a negligence 

claim at the pleading stage. Accordingly, this Court should come to the same correct conclusions

in Obradovich and Thakkar and similarly find that Plaintiff’s allegations of faulty property 

preservation services conducted by Safeguard to be sufficient to sustain a negligence claim at the 

pleading stage.

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CONCLUSION

Safeguard’s Motion blatantly ignores the face of Plaintiff’s Complaint and the applicable 

standard at the pleading stage. Plaintiff has adequately pled his negligence claim against 

Safeguard. Accordingly, Safeguard’s Motion must be denied as a matter of law.

Dated: October 5, 2020 Respectfully submitted,

/s/ Mohammed O. Badwan

Mohammed. O. Badwan, Esq.

Counsel for Plaintiff

Sulaiman Law Group, Ltd.

2500 South Highland Avenue, Suite 200

Lombard, Illinois 60148

(630) 575-8180 

(630) 575-8188 (fax)

mbadwan@sulaimanlaw.com

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CERTIFICATE OF SERVICE

I hereby certify that on October 5, 2020, a copy of the foregoing was filed with the Clerk 

of the Court using the CM/ECF system, which will provide notification of such filing to all counsel 

of record. 

/s/ Mohammed O. Badwan

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