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Lauretta Grady v. Ocwen Loan Servicing

March 19, 2012

LAURETTA GRADY, PLAINTIFF,
v.
OCWEN LOAN SERVICING, LLC, AND OCWEN FINANCIAL CORPORATION DEFENDANTS.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Before the Court is Defendants' motion to dismiss Plaintiff's amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) [24]. For the reasons set forth below, the Court grants in part and denies in part Defendants' motion [24].

I. Background*fn1

Sometime before 2005, Plaintiff Lauretta Grady purchased her home located at 2547 West 118th Street in Chicago, IL. To finance the purchase, Grady signed a note, secured with a mortgage, with Ameriquest Mortgage Company ("Ameriquest") for a total amount of $168,000.000. On January 25, 2005, Defendants Ocwen Loan Servicing, LLC ("Ocwen"), a company that services residential mortgage loans that are initiated through other lenders, and Ocwen Financial Corporation ("OFC"), Ocwen's sole member and parent corporation, acquired Grady's home loan for servicing.

Grady alleges that upon acquiring her loan, Defendants charged her a series of unwarranted fees, including title report fees, property inspection fees, property valuation expense fees, title search fees, tax backsearch fees, and others that are either not legally due under the mortgage contract or applicable law, or that are in excess of amounts that are legally due. Defendants also misapplied Grady's payments by placing them into "suspense accounts," thus diverting her mortgage funds from being immediately applied to her mortgage payments, and forced Grady to purchase or purchased on her behalf hazard insurance, despite the fact that the property was already fully insured. Finally, Grady contends that Defendants have falsely represented the true amount of the home mortgage, and have reported false amounts to national credit reporting agencies.

Believing that her loan has been serviced improperly, Grady sued Defendants, alleging that they violated the Fair Debt Collection Practices Act ("the FDCPA"), 15 U.S.C. §§ 1692, et seq., and the Real Estate Settlement Procedures Act, 12 U.S.C. §§ 2601, et seq. Grady also contends that Defendants have been unjustly enriched, have breached their covenant of good faith and fair dealing, and that their actions amount to conversion, all under Illinois law. Grady acknowledges that her "records concerning this matter are incomplete," and states that "a reasonable opportunity for further investigation and discovery * * * is likely to provide additional evidentiary support" for the allegations in her amended complaint. (Am. Compl. ¶¶ 10-11.)

Defendants have moved to dismiss Grady's amended complaint pursuant to Rule 12(b)(6), arguing that the FDCPA does not apply here because Defendants are not "debt collectors" as defined by the statute, and that Grady has not pleaded facts sufficient to raise her right to relief on any of her claims above the speculative level. Although Grady does not say so explicitly, the Court takes from the absence in her response of any discussion of her Real Estate Settlement Procedures Act and breach of covenant of good faith and fair dealing claims that she has abandoned these claims. See Steen v. Myers, 486 F.3d 1017, 1020 (7th Cir. 2007). Accordingly, the Court will dismiss Counts II and IV without prejudice.

II. Legal Standard

A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of the complaint, not the merits of the case. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss, the complaint first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the "speculative level," assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, 550 U.S. at 563. The Court accepts as true all of the well-pleaded facts alleged by the plaintiff and all reasonable inferences that can be drawn therefrom. See Barnes v. Briley, 420 F.3d 673, 677 (7th Cir. 2005).

III. Analysis

A. Grady's Claim Against Ocwen Financial Corporation

As an initial matter, the Court must determine whether Grady has properly named OFC as a defendant in this lawsuit. Defendants argue that it is Ocwen, not OFC, who has been servicing Grady's loan, and that OFC should be dismissed because it has no connection to the loan. As a general principle, a parent corporation is not liable for the acts of its subsidiaries.

However, under the direct participant theory of liability, a parent corporation may be held liable if "there is sufficient evidence to show that the parent corporation directed or authorized the manner in which an activity is undertaken." Forsythe v. Clark USA, Inc., 864 N.E.2d 227, 242 (Ill. 2007) (holding that "[t]he key elements to the application of direct participant liability, then, are a parent's specific direction or authorization of the manner in which an activity is undertaken and foreseeability"); Santora v. Starwood Hotel & Resorts Worldwide, Inc., No. 05 C 6391, 2007 WL 3037098, at *6 (N.D. Ill. Oct. 16, 2007) (noting that "where there is evidence sufficient to prove that a parent company mandated an overall business and budgetary strategy and carried that strategy out by its own specific direction or authorization, surpassing the control exercised as a normal incident of ownership in disregard for the interests of the subsidiary, the parent company could face liability") (internal quotations omitted). When a corporation specifically directs an activity where injury is foreseeable, or if it mandates an overall course of action and then authorizes the manner in which specific activities contributing to that course of action are undertaken, the corporation can be liable for foreseeable injuries. Cima v. WellPoint Health Networks, Inc., 556 F. Supp. 2d 901, 905-06 (S.D. Ill. 2008).

Here, Grady states in her response that she has named OFC as a party because OFC was the parent company of Ocwen Federal Bank, the now-dissolved company that first acquired Grady's loan for servicing in January of 2005. Grady contends, upon information and belief, that OFC is a successor in interest to Ocwen Federal Bank. That is ...


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