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Hukic v. Aurora Loan Services

May 22, 2006


The opinion of the court was delivered by: Judge Virginia M. Kendall


Plaintiff Avro Hukic ("Plaintiff") has filed a fifteen-count Amended Complaint against Aurora Loan Services, Inc. ("Aurora") and Ocwen Loan Servicing, LLC ("Ocwen" and together with Aurora, "Defendants") for breach of contract, violations of the Fair Credit Reporting Act ("FCRA") and various Illinois tort claims, all arising in connection with credit reports that Defendants filed about Plaintiff's performance on a mortgage contract. Defendants have moved to dismiss all counts of Plaintiff's Amended Complaint. For the reasons stated below, Defendants' motion is granted in part and denied in part.


For purposes of a motion to dismiss, the following facts from the Amended Complaint are taken as true. Plaintiff signed a mortgage agreement with Life Savings Bank in 1997 for the purchase of a property in Chicago, Illinois. Am. Compl. at ¶ 8. Plaintiff made timely payments on the loan in the appropriate amount. Id. at ¶ 11. In April 1998, Plaintiff made a timely monthly payment in the appropriate amount of $1,335, but Life Savings Bank inadvertently recorded the payment at $1,135. Id. at ¶¶ 15-16.

In May 1998, Life Savings Bank assigned the mortgage contract to Aurora, which assumed the contract in its entirety. Id. at ¶¶ 12-13. Aurora did not correct the recording error made by Life Savings Bank, and placed Plaintiff's April 1998 payment in a "suspense account." Id. at ¶ 21. With each monthly payment, Aurora paid the previous month's balance, along with late fees, and placed the remaining amount back into the suspense account for the next month. Id. at ¶¶ 22-27. By November 1999, Aurora reported Plaintiff's credit to a credit reporting agency. Id. at ¶ 31.

On March 3, 2000, Aurora sold Plaintiff's mortgage contract to Ocwen. Id. at ¶ 42. Ocwen also did not correct the recording error on Plaintiff's account. Starting in January 2001, Ocwen reported Plaintiff's credit to reporting agencies. Id. at ¶ 46. Starting in June 2001, and continuing through December 2003, Ocwen refused to accept Plaintiff's monthly money order payments on his mortgage. Id. at ¶¶ 51-76.

In letters to each Defendant dated January 11, 2001 and February 26, 2001, Plaintiff's counsel advised both Ocwen and Aurora that Plaintiff disputed the credit reporting and threatened to file charges against Defendants. Id. at ¶¶ 32-33, 47-48, Exs. B,C, M, N. In October 2001, Aurora responded to Plaintiff and admitted to the inaccurate reporting. Id. at ¶ 35. However, Aurora failed to correct the inaccuracy. Id. at ¶ 36. Ocwen did not respond to the letter. Id. at ¶ 49.

On November 7, 2001, First Union National Bank, as trustees, filed a foreclosure action against Plaintiff in Cook County Circuit Court. Id. at ¶ 77. By May 2003, the Circuit Court ordered reinstatement of the monthly payments and waiver of all fees, costs, and penalties against Plaintiff, and then dismissed the action against Plaintiff. Id. at ¶¶ 82-84. Plaintiff wrote to Trans Union, a credit reporting agency, in May 2004, and asked it to investigate the problems with his credit. Id. at ¶¶ 38-39, 96-97.

Plaintiff alleges that Ocwen and Aurora continued to provide incorrect credit information to credit reporting agencies after 2003 despite letters from Plaintiff asking Defendants to expunge the credit history. Plaintiff alleges that as a result of the false credit reporting by Defendants, Plaintiff was denied credit from third parties on numerous occasions between September 2001 and December 2003. Id. at ¶¶ 107-115.

Legal Standard

A complaint will not be dismissed for failure to state a claim unless it is "clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). This Court must take all allegations in the complaint as true, and draw all reasonable inferences in the light most favorable to the plaintiff. Pickrel v. City of Springfield, 45 F.3d 1115, 1117 (7th Cir. 1995). To survive a motion to dismiss, a plaintiff "need not plead particular legal theories or particular facts in order to state a claim." DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000). The plaintiff need only give "a short and plain statement of the claim that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957).

Plaintiff attaches numerous documents to his Amended Complaint. Any written instrument attached to a pleading is considered a part of that pleading. Fed. R. Civ. P. 10(c). While accepting all well-pled allegations in the Amended Complaint as true, and drawing all inferences in the plaintiff's favor on a motion to dismiss, to the extent a written agreement contradicts an allegation in the complaint, the written instrument will control. Centers v. Centennial Mortgage, Inc., 398 F.3d 930, 933 (7th Cir. 2005). "A plaintiff may plead himself out of court by attaching documents to the complaint that indicate that he or she is not entitled to judgment." Id. (citation omitted).

Breach of Contract Claims

First, Defendants move to dismiss counts One and Two, each for breach of the mortgage contract against Aurora and Ocwen respectively, on the basis of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). In order to state an Illinois common law claim for breach of contract, a plaintiff must state: (i) the existence of a valid contract; (ii) plaintiff's performance; (iii) defendant's breach; and (iv) damages to the plaintiff as a result of the breach. Catania v. Local 4250/5050 of Communications Workers of America, 834 N.E.2d 966, 971 (Ill. App. Ct. 2005). Defendants argue that Plaintiff cannot state a claim for breach because Plaintiff failed to perform his duties ...

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