Brown

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

TONYELEN BROWN, )

on behalf of Plaintiff and a class, )

)

Plaintiff, )

) No. 25-cv-02799

v. )

) Judge April M. Perry

KEOUGH & MOODY, P.C., )

and BAY PROPERTY SERVICES, INC., )

)

Defendants. )

OPINION AND ORDER

Tonyelen Brown (“Plaintiff”) brings this putative class action lawsuit against Keough &

Moody, P.C. (“K&M”) and Bay Property Services, Inc. (“BPS”) under the Fair Debt Collection

Practices Act (“FDCPA”) and Illinois state law. Specifically, Plaintiff alleges a violation of the

FDCPA by K&M (Count I), a violation of the Illinois Consumer Fraud and Deceptive Business

Practices Act (“ICFA”) by BPS (Count II), and a claim for unjust enrichment against both

defendants (Count III). Doc. 1. Before this Court is BPS’s motion to dismiss Counts II and III

under Federal Rules of Civil Procedure 12(b)(1)1 and 12(b)(6). Doc. 27. For the following

reasons, BPS’s motion to dismiss is denied.

BACKGROUND

This action arises out of K&M’s and BPS’s attempts to collect a debt on behalf of the

Arbors of Justice Condominium Association. Doc. 1 ¶ 15. K&M is a law firm which advertises

itself as “providing full-service representation to condominium, townhome, and homeowners’

associations” and “regularly institutes legal proceedings seeking the eviction of delinquent

1 BPS moved for dismissal under Rule 12(1), but it presumably meant Rule 12(b)(1). Doc. 27 at 1.

owners and obtaining judgments against delinquent owners.” Id. ¶¶ 7-9. BPS engages in the

business of managing condominiums and other community associations. Id. ¶¶ 13-14.

On September 27, 2024, K&M filed an eviction and collections action against Plaintiff in

state court for a property located in Justice, Illinois. Id. ¶ 16; Doc. 1-1 at 3. The state court

complaint attached ledgers prepared by BPS, which listed a “Late Admin Fee – Collections

Admin Charge” of $200 from August 1, 2024. Doc. 1 ¶¶ 17-18. Plaintiff alleges that this amount

did not correspond to a late fee or regular assessment related to Plaintiff’s condominium and

instead represented a charge by BPS for handing over the debt collection file to K&M. Id. ¶ 19.

Either K&M or BPS prepared a 30-day notice and demand, which was then mailed to Plaintiff.

Id. ¶ 20. The state court action was settled and nonsuited when Plaintiff paid the debt and

additional sums for attorneys’ fees and costs. Id. ¶¶ 5, 23. Plaintiff now contends that nothing in

the declaration or bylaws recorded by the Arbors of Justice Condominium Association

authorized such an administrative fee, and any attempt to collect the supposed debt was therefore

illegal. Id. ¶ 26.

LEGAL STANDARD

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges the

Court's subject matter jurisdiction. When a defendant brings a 12(b)(1) motion, “the district court

must accept as true all material allegations of the complaint, drawing all reasonable inferences

therefrom in the plaintiff's favor, unless standing is challenged as a factual matter.” Remijas v.

Neiman Marcus Group, LLC, 794 F.3d 688, 691 (7th Cir. 2015). If a defendant factually

challenges the basis for federal jurisdiction, the “district court may properly look beyond the

jurisdictional allegations of the complaint and view whatever evidence has been submitted on the

issue to determine whether in fact subject matter jurisdiction exists.” Apex Digital, Inc. v. Sears,

Roebuck & Co., 572 F.3d 440, 444 (7th Cir. 2009). It is the plaintiff's burden to establish

standing. Id. at 443.

Under Federal Rule of Civil Procedure 12(b)(6), a case may be dismissed when a plaintiff

fails to state a claim upon which relief can be granted. A 12(b)(6) motion is a challenge to the

sufficiency of a complaint, not its merits. See Gibson v. City of Chicago, 910 F.2d 1510, 1520

(7th Cir. 1990). When considering such a motion, the Court accepts as true all well-pleaded facts

in the complaint and draws all reasonable inferences from those facts in the plaintiff's favor. See

Kubiak v. City of Chicago, 810 F.3d 476, 480–81 (7th Cir. 2016). To survive a motion to

dismiss, a plaintiff need only include “a short and plain statement of a claim that is plausible on

its face and entitles them to relief.” Roldan v. Stroud, 52 F.4th 335, 339 (7th Cir. 2022). The

short and plain statement must “give the defendant fair notice of what the claim is and the

grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A claim is

facially plausible “when the plaintiff pleads factual content that allows 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 factual allegations in the complaint must be sufficient to “raise a

right to relief above the speculative level.” Twombly, 550 U.S. at 555. The law is clear that a

“formulaic recitation of the elements of a cause of action will not do.” Id.

ANALYSIS

In its motion to dismiss, BPS argues that dismissal is appropriate because: (1) Plaintiff

lacks Article III standing due to lack of injury; (2) the ICFA claim is not plausibly alleged due to

lack of damages or due to the voluntary payment doctrine; and (3) Plaintiff’s unjust enrichment

claim fails because it cannot stand independent of the ICFA claim and because the parties have a

contract. BPS also asserts for the first time in its reply brief that dismissal of the ICFA claim is

appropriate because there was no deceptive or unfair practice, and that dismissal of the unjust

enrichment claim is warranted because BPS is not alleged to have received a direct benefit or

payment from Plaintiff.

I. Article III Standing

The Court begins, as it must, with Article III standing. Article III of the Constitution

limits the jurisdiction of the federal courts to “Cases” and “Controversies.” U.S. Const. art. III, §

2. The requirement of standing derives from this provision and has three elements: plaintiff must

have (1) a concrete and particularized injury in fact (2) that is traceable to the defendant's

conduct and (3) that can be redressed by judicial relief. Lujan v. Defenders of Wildlife, 504 U.S.

555, 560–61 (1992). Only injuries that are sufficiently concrete, particularized, and actual or

imminent qualify as injuries in fact. TransUnion LLC v. Ramirez, 594 U.S. 413, 423-24 (2021).

A plaintiff unaffected by defendant's supposed misconduct is not injured. Spuhler v. State

Collection Serv., Inc., 983 F.3d 282, 286 (7th Cir. 2020) (plaintiffs lacked concrete injury where

evidence showed inaccurate communication from debt collector did not “detrimentally affect[ ]

the debtors’ handling of their debts.”). Standing is jurisdictional, and without standing the case

must be dismissed. See United States v. Hays, 515 U.S. 737, 742 (1995).

The Court concludes that Plaintiff has adequately pled Article III standing. The complaint

alleges that BPS tried to collect a debt from Plaintiff that was not owed – specifically, a “Late

Admin Fee – Collections Admin Charge” of $200 that was not authorized by Plaintiff’s

condominium declaration or bylaws. Doc. 1 ¶¶ 18-19. As part of this debt collection, K&M filed

a lawsuit against Plaintiff which Plaintiff felt forced to settle because she risked being evicted.

Id. ¶ 28. According to the complaint, Plaintiff arranged to pay both the debt and “additional sums

for attorney’s fees and costs.” Id. ¶ 23. This payment of a debt Plaintiff allegedly did not owe

clearly constitutes an injury for the purposes of Article III standing. See Larkin v. Fin. Sys. of

Green Bay, Inc., 982 F.3d 1060, 1066 (7th Cir. 2020) (noting that a violation which causes a

plaintiff “to pay debts they did not owe” would constitute “a concrete injury that might support

... standing to sue”). Moreover, Plaintiff’s injury is traceable to BPS’s conduct, as BPS allegedly

claimed it was owed the fee when passing the case along to K&M. Finally, Plaintiff’s injury can

be redressed by repayment of the sums that Plaintiff was allegedly coerced to pay. Thus, all the

elements of Article III standing have been met for the purposes of a motion to dismiss.

II. ICFA

The next question is whether Plaintiff has plausibly alleged a claim under the ICFA. The

ICFA “is a regulatory and remedial statute intended to protect consumers, borrowers, and

business persons against fraud, unfair methods of competition, and other unfair and deceptive

business practices.” Robinson v. Toyota Motor Credit Corp., 775 N.E.2d 951, 960 (Ill. 2002).

“The elements of an ICFA claim are: (1) a deceptive or unfair act or practice by the defendant;

(2) the defendant's intent that the plaintiff rely on the deceptive or unfair practice; and (3) the

unfair or deceptive practice occurred during a course of conduct involving trade or commerce.”

Rao v. J.P. Morgan Chase Bank, N.A., 153 F.4th 541, 555–56 (7th Cir. 2025) (internal citation

omitted). When the plaintiff is a private party, the plaintiff must show she suffered “actual

damage” as a result of the defendant's ICFA violation. Camasta v. Jos. A. Bank Clothiers, Inc.,

761 F.3d 732, 739 (7th Cir. 2014). The ICFA allows for recovery for either deceptive or unfair

conduct, see Robinson, 775 N.E.2d at 960, and Plaintiff here proceeds under both theories of

recovery. Doc. 1 ¶ 49.

Plaintiff argues that a violation of ICFA occurred because the $200 administrative fee

was not authorized under the Illinois Condominium Property Act and therefore should not have

been requested in an eviction action. In relevant part, 765 ILCS 605/9.2 states:

(c) Other than attorney's fees, no fees pertaining to the collection of a unit owner's

financial obligation to the Association, including fees charged by a manager or managing

agent, shall be added to and deemed a part of an owner's respective share of the common

expenses unless: (i) the managing agent fees relate to the costs to collect common

expenses for the Association; (ii) the fees are set forth in a contract between the

managing agent and the Association; and (iii) the authority to add the management fees

to an owner's respective share of the common expenses is specifically stated in the

declaration or bylaws of the Association.

(emphasis added). Courts have extended ICFA protections to the condominium owner and

condominium association relationship when owners pay association fees in exchange for work

and services. See Speights-Carnegie v. Blackstone Condo. Ass'n, No. 15-CV-3781, 2016 WL

2644864, at *6 (N.D. Ill. May 10, 2016); see also People ex rel. Daley v. Datacom Sys. Corp.,

585 N.E.2d 51, 64 (Ill. 1991) (discussing intent of Illinois legislature to extend the reach of ICFA

broadly, and finding that that debt collection practices are embraced by the ICFA).

BPS argues that the ICFA claim is not plausibly pled because there is no allegation of

actual damages. The Court disagrees. The complaint alleges that Plaintiff was forced to pay not

only a $200 debt she did not owe, but also attorneys’ fees and costs. This qualifies as actual

damages. Morris v. Harvey Cycle & Camper, Inc., 911 N.E.2d 1049, 1053 (Ill. App. Ct. 2009)

(stating that the ICFA “provides remedies for … economic injuries” that are calculable); Grant–

Hall v. Cavalry Portfolio Servs., LLC, 856 F.Supp.2d 929, 942 (N.D. Ill. 2012) (finding that “the

time and money Plaintiffs spent defending the debt collection lawsuits” plausibly constituted

actual damages under the ICFA).

In the alternative, BPS argues that even if actual damages were plausibly alleged,

Plaintiff’s recovery is barred by the voluntary payment doctrine. The voluntary payment doctrine

“embodies the ancient and universally recognized rule that money voluntarily paid under a claim

of right to the payment and with knowledge of the facts by the person making the payment

cannot be recovered back on the ground that the claim was illegal.” McIntosh v. Walgreens Boots

All., Inc., 135 N.E.3d 73, 80 (Ill. 2019) (internal citation omitted). To avoid application of the

doctrine, a party must show that the claim asserted was unlawful and that the payment was not

voluntary. Id. “In addition to compulsion or duress, other recognized exceptions to the voluntary

payment doctrine include fraud or misrepresentation or mistake of a material fact.” Id. at 80-81.

The voluntary payment doctrine is an affirmative defense. Harris v. ChartOne, 841

N.E.2d 1028, 1031 (Ill. App. Ct. 2005). As a result, dismissal due to the voluntary payment

doctrine would only be appropriate if the complaint’s factual allegations unambiguously

establish all the elements of the defense. Doe v. GTE Corp., 347 F.3d 655, 657 (7th Cir. 2003)

(stating that “litigants need not plead around defenses”).

In this case, the complaint does not unambiguously establish that the voluntary payment

doctrine applies because the complaint asserts that the payment was not, in fact, voluntary.

Rather, the complaint alleges that Plaintiff had “little choice” but to agree to pay the fees levied

against her by BPS because she risked being evicted from her home. Doc. 1 ¶ 28. Plaintiff argues

that the high costs of defending even an unfair lawsuit equate to coercion, an exception to the

voluntary payment doctrine. Drawing all reasonable inferences in Plaintiff’s favor, the possibility

of coercion during settlement negotiations raises factual questions not appropriately resolved on

a motion to dismiss. See Crain v. Lucent Techs., Inc., 739 N.E.2d 639, 644 (Ill. App. Ct. 2000)

(noting that under Illinois law the question of the applicability of the voluntary payment doctrine

and exceptions thereto is essentially factual and that the “resolution of this issue will require the

presentation of evidence so that the court or fact finder can determine whether a payment was

voluntarily made without protest and without fraud or mistake.”). Therefore, the Court will not

dismiss the ICFA claim based upon the voluntary payment doctrine.

The only other challenge BPS raises to the ICFA claim is whether Plaintiff adequately

alleged a deceptive or unfair practice. However, this argument was raised for the first time in

BPS’s reply brief and was therefore waived. Gold v. Wolpert, 876 F.2d 1327, 1331 n. 6 (7th Cir.

1989); Dexia Crédit Local v. Rogan, 629 F.3d 612, 625 (7th Cir. 2010).2 For these reasons, the

Court denies BPS’s motion to dismiss the ICFA claim alleged in Count II.

III. Unjust Enrichment

BPS next argues that the unjust enrichment claim fails: (1) because unjust enrichment is

not a standalone tort and is dependent on a plausible ICFA claim; and (2) because a claim of

unjust enrichment is not viable when there is an express contract. BPS adds in its reply that

“Plaintiff fails to plead that BPS directly received the disputed payment or otherwise retained a

benefit that would make retention inequitable.” Doc. 36 at 3. Having already found that the ICFA

claim is plausibly alleged, it is unnecessary to address BPS’s first argument. Moreover, as

already discussed, the third argument which was raised for the first time in BPS’s reply brief has

been waived. The Court thus limits its analysis to the question of whether Plaintiff’s express

contract with the Arbors of Justice Condominium Association bars the unjust enrichment claim

against BPS.

2 BPS also attempted to add a new argument seven months after its opening brief was filed, citing two

recently-decided cases from this district. Doc. 54. Both cases were decided based upon factual arguments

not made by BPS in this case. Specifically, the defendants in those cases argued that the condominium

declarations and bylaws at issue in their cases explicitly authorized the fees charged by the management

companies. These cases did not create new law. The argument raised in those cases was available to BPS

at the time it filed its opening brief, and its failure to raise it constitutes waiver – at least for the purposes

of this motion to dismiss.

Unjust enrichment claims may be predicated on either quasi-contract or tort theories.

Peddinghaus v. Peddinghaus, 692 N.E.2d 1221, 1225 (Ill. App. Ct. 1998). When the relationship

between the parties “is governed by contract, they may not bring a claim of unjust enrichment

unless the claim falls outside the contract.” Utility Audit, Inc. v. Horace Mann Serv. Corp., 383

F.3d 683, 688-89 (7th Cir. 2004). When the claim arises from tortious conduct, “existence of a

specific contract does not defeat [a] cause of action.” Peddinghaus, 692 N.E.2d at 1225.

Here, BPS’s argument that the unjust enrichment claim is barred due to a contract fails

because Plaintiff’s complaint nowhere asserts the existence of a contract between Plaintiff and

BPS. At most, the complaint alleges contracts in the form of the condominium declaration and

bylaws between the Arbors of Justice Condominium Association and Plaintiff. Doc. 1 ¥ 26; see

Hutsonville Cmty. Unit Sch. Dist. No. I v. Illinois High Sch. Ass'n, 195 N.E.3d 798, 804 (Il.

App. Ct. 2021) (Tn Illinois, the constitution and bylaws of associations can constitute a contract

between the association and its members.”). But BPS is not the same entity as the condominium

association; BPS is a third party hired by the association to manage its building. Plaintiffs claim

arises not out of any breach of contract between BPS and Plaintiff, but out of BPS’s alleged

abuse of its power over Plaintiff to try to coerce unjustified fees from Plaintiff. For these reasons,

the claim of unjust enrichment is not obviously barred by any express contract and the Court

denies BPS’s motion to dismiss Count III.

CONCLUSION

BPS’s motion to dismiss is denied. BPS is to answer the complaint by February 16, 2026.

Dated: January 26, 2026

APRIL M. PERRY

United States District Judge