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Judge Zagel Dismisses Acrimonious Fair Housing Discrimination Lawsuit Filed By A Lawyer

Kelli Dudley is a foreclosure defense lawyer and is a superb advocate for the poor and other underserved populations of Cook County. The defendants in the case also defend foreclosures.

In an underlying case, Dudley, on behalf of Tonya Davis, filed a legal malpractice claim against several foreclosure defense lawyers alleging that they did nothing to keep Davis in her home. That litigation turned acrimonious.

Eventually, the defendants obtained a preliminary injunction in a state court case which prevented Dudley from contacting Davis. Ultimately the Davis v. Fenton case went to arbitration. The arbitrator awarded Davis damages for legal malpractice against Fenton. The arbitrator ruled in favor of Fenton on Davis’ other claims, including her claim that Fenton had engaged in unlawful housing discrimination.

Dudley then brought suit against Fenton and the other defendants in the Davis case. She alleged that they had violated the Fair Housing Act by retaliating or discriminating against her for exercising her rights under the FHA. 42 U.S.C. 3601. The court described Dudley’s claim as:

Similar to Davis’s § 3617 claim, Dudley alleges that the preliminary injunction that prevented her from talking to Davis was interference and that subsequent motions in the Federal and State Actions constituted attempts to retaliate against and intimidate Dudley for representing Davis against Fenton and his law offices. She alleges that these actions forced her to hire Newman to assist Davis and defend herself as an attorney. She also claims the events caused her severe emotional distress, losses to her clinic, and loss of standing in the legal community due to her unavailability for projects.

Judge Zagel dismissed Dudley’s claims. He reasoned, in part, that:

Even if Dudley was a protected individual under the FHA engaging in the exercise or enjoyment of her fair housing rights, her claim would nonetheless fail because she has not sufficiently pleaded that Defendants coerced, threatened, intimidated, or interfered with Dudley on account of her protected activity under the FHA. Judge Castillo addressed this exact issue when he dismissed Davis’s § 3617 claim in the Federal Action, and I agree with his reasoning:

By Plaintiff’s capacious reading of the FHA as prohibiting any actions that could complicate an FHA suit, a defendant could be liable under Section 3617 even for filing a counterclaim or mounting a vigorous defense. The FHA was intended to prevent and punish discriminatory housing practices, [] but this Court is unconvinced that it was intended to preemptively strip those accused of FHA violations of the right to vindicate their own legal rights . . . it is simply the inevitable result of a legal system constructed to adjudicate the varying, sometimes conflicting, interests of multiple parties.Davis v. Fenton, 2016 U.S. Dist. LEXIS 50145, 22-23 (N.D. Ill. Apr. 13, 2016). In sum, activities inherent to the adversarial system such as seeking injunctions, filing suits, submitting affidavits, etc. go beyond what the FHA contemplated in § 3617. Furthermore, most § 3617 litigation addresses “direct, extralegal acts” such as cross-burning, firebombing, shootings, and physical assaults. Id. The acts that Dudley cites as interference and retaliation are not of the same ilk for which plaintiffs typically seek relief under § 3617. There are also serious policy concerns if I allow Dudley to allege that normal actions taken in lawsuits can amount to interference and retaliation. Dudley therefore fails to state a claim under § 3617, and I am dismissing this case.

Thus, engaging in litigation activities, even acrimonious activities does not constitute fair housing discrimination. The court dismissed the lawsuit on the ground that it did not state a claim. FRCP 12(b)(6).

Source: Dudley v. Fenton, Dist. Court, ND Illinois 2016 – Google Scholar

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