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Lilian Allen v. Bank of America

November 6, 2012

LILIAN ALLEN, PLAINTIFF,
v.
BANK OF AMERICA, N.A., BAC HOME FINANCE LLC, U.S. BANK, N.A., PIERCE & ASSOCIATES, P.C., MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AND WILSHIRE CREDIT CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Judge Feinerman

MEMORANDUM OPINION AND ORDER

Lillian Allen alleges in this lawsuit that Bank of America, N.A., BAC Home Finance LLC, U.S. Bank, N.A., Wilshire Credit Corporation, Mortgage Electronic Registration Systems, Inc. ("MERS"), and Pierce & Associates, P.C., violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. Allen filed the suit pro se on December 29, 2011. Doc. 1. Bank of America, BAC Home Finance, U.S. Bank, and Wilshire (collectively, "Bank Defendants") moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), as did Pierce. Docs. 7, 27. Before the motions could be resolved, the court dismissed the case for want of prosecution. Doc. 39. The court reinstated the case on Allen's motion, at which point counsel had appeared on her behalf. Doc. 46. Instead of responding to Pierce's and the Bank Defendants' motions to dismiss, Allen filed an amended complaint. Doc. 50. Pierce again moved to dismiss under Rule 12(b)(6), arguing that the amended complaint failed to allege that Pierce had engaged in any specific wrongdoing. Doc. 59. The court granted the motion, dismissed the claims against Pierce, and said that Allen could move for leave to file a second amended complaint. Doc. 61. Allen then filed a second amended complaint (henceforth, "the complaint") without first seeking leave, Doc. 62; the court granted leave retroactively on Allen's oral motion, without prejudice to Pierce's again moving to dismiss, Doc. 67.

The Bank Defendants have answered. Doc. 64. MERS, which the docket indicates has not been served with summons, has not appeared. Pierce has again moved to dismiss under Rule 12(b)(6). Doc. 70. The motion is granted in part and denied in part.

Background

On a Rule 12(b)(6) motion, the court assumes the truth of the complaint's well-pleaded factual allegations but not its legal conclusions. See Munson v. Gaetz, 673 F.3d 630, 632 (7th Cir. 2012); Reger Dev., LLC v. Nat'l City Bank, 592 F.3d 759, 763 (7th Cir. 2010). The court must construe those facts in the light most favorable to the party opposing dismissal. See Gomez v. Randle, 680 F.3d 859, 864 (7th Cir. 2012). The court must also consider "documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice," along with additional facts set forth in the non-movant's brief opposing dismissal, so long as those facts "are consistent with the pleadings." Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012). The following facts, as well as additional facts addressed in the Discussion section below, are set forth as favorably to Allen as permitted by the complaint and the other materials that must be considered on a Rule 12(b)(6) motion.

The underlying debt is a mortgage note on a property in Chicago that Allen owns. Doc. 62 at ¶ 6. The note originally was held by Miller Incorporated of Mount Lake Terrace, Washington, a non-party. Ibid. Since its issuance, the note has been owned and/or serviced at various points by the Bank Defendants and MERS. Id. at ¶¶ 6-7, 9-10. Pierce, a law firm, represented U.S. Bank in a state court foreclosure action filed against Allen on September 10, 2009. Id. at ¶ 8. U.S. Bank filed an affidavit of transfer of the ownership of the note on September 14, 2009. Id. at ¶ 9. The state court entered a judgment of foreclosure against Allen in May 2010. Doc. 76 at 2. From 2009 through May 2012, Allen repeatedly requested that Defendants, including Pierce, verify and validate the debt. Doc. 62 at ¶¶ 11, 14-28. Defendants did not comply with any of those requests. Ibid.

"At various times between December 15, 2010 and April 2011, Defendants and/or their agents made several telephone calls and sent letters that Allen should pay up" on the mortgage debt. Id. at ¶ 12. In one call, Pierce told Allen, "Move out of your property right away. FDCPA does not apply to us." Ibid. Allen provides no further details regarding the content of the other calls, and does not describe the frequency of the calls beyond saying that there were "several" between December 15, 2010, and April 2011. Ibid. Other than the one specific call from Pierce, the complaint does not attribute any call or letter to any particular defendant; Allen's opposition brief, however, appears to suggest that Pierce made all of the calls. Doc. 76 at 5-6 ("Plaintiff indicated [in the complaint] that Defendant [identified earlier in the brief as Pierce] made several telephone calls at various times between December 15, 2010 and April 2011, demanding payment of mortgage debt of $239,920.00.") (citing Doc. 62 at ¶ 12). Allen asked Pierce for U.S. Bank's mailing address so that she could request verification and validation of the debt from U.S. Bank, but Pierce refused and instead told her to send it all correspondence intended for U.S. Bank. Doc. 62 at ¶ 13.

Discussion

Count I of the three-count complaint alleges that Pierce violated 15 U.S.C. § 1692g; Count II alleges a violation of § 1692d(5); and Count III alleges a violation of § 1692e(5). The claims are considered in turn.

I. Section 1692g -- Validation and Verification of Allen's Debt

Allen alleges that Pierce violated § 1692g in two ways: (1) by failing to send her the written notice required by § 1692g(a) within five days of its "initial communication" with her regarding the debt; and (2) by failing to validate the debt in response to her many requests while continuing to pursue collection, in violation of § 1692g(b). Although the factual allegations underpinning Allen's § 1692g claims are murky, largely due to her shifting accounts of what transpired, it is clear that the claims fail as a matter of law.

Section 1692g provides in relevant part:

§ 1692g. Validation of Debts

(a) Notice of debt; contents

Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing-

(1) the amount of the debt;

(2) the name of the creditor to whom the debt is owed;

(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;

(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification ...


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