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Banks v. Green Tree Servicing, LLC

United States District Court, Northern District of Illinois, Eastern Division

March 5, 2015

REGINA L. BANKS, Plaintiff,
v.
GREEN TREE SERVICING, LLC, and BANK OF AMERICA, N.A., Defendants.

MEMORANDUM OPINION AND ORDER

SHARON JOHNSON COLEMAN UNITED STATES DISTRICT JUDGE

Plaintiff, Regina L. Banks, filed a six-count complaint against Green Tree Servicing, LLC, and Bank of America, N.A., stemming from the servicing and debt collection related to Banks’ home mortgage loan. Defendants move to dismiss [20, 22] the complaint in its entirety for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated herein, the motions are granted in part and denied in part.

Background

Plaintiff, Regina Banks, executed a 15 year mortgage loan in the amount of $93, 840.00 with Countrywide Home Loans, Inc. and secured by Banks’ home. Bank of America, N.A. (“BANA”) was the servicer on Banks’ home mortgage loan from sometime after origination until April 1, 2013. (Complaint, Dkt. 1 at ¶ 10). On April 1, 2013, Green Tree Servicing, LLC, became the servicer on Banks’ loan. Banks alleges that she made all the monthly payments on her home mortgage loan from its origination in 2002 through the filing of the instant complaint. (Id. at ¶ 10-11). “At the time of the transfer, BANA and Green Tree misapplied Banks’ payments, miscalculated Banks’ principal balance, and treated the loan as if it was in default.” (Id. at ¶11). On March 13, 2013, just prior to the transfer of servicing rights, Banks’ principal balance was $32, 440.81. (Id. at ¶19). Green Tree’s initial communication with Banks was on March 21, 2013, and was a notice of transfer of servicing. The letter indicated the principal balance of the loan was $33, 091.21. (Id. at ¶20-21). Banks alleges that she called BANA and Green Tree to verbally dispute the principal balance. She also alleges that she sent both Green Tree and BANA a QWR disputing the servicing and accounting of the loan and an FDCPA dispute letter on April 18, 2013. This first dispute letter specifically stated that she had attempted to contact both Green Tree and BANA and that “Green Tree ha[d] the wrong balance transfer amount.” (Id. at ¶25).

Green Tree assessed late fees against Banks and called her cell phone and work phone to collect upon the “defaulted” debt several times each week. Banks never authorized Green Tree to call her cell phone or her work phone. During each call, Banks requested that Green Tree stop telephoning her and notified Green Tree that she does not consent to any of the calls. (Id. at ¶28).

On May 2, 2013, BANA responded to Banks’ first dispute letter stating that it had enclosed “a detailed outline of transactions” and “a history or information on payments we have received from you…” Enclosed was a payment history. Green Tree acknowledged receiving Banks’ first dispute letter. On May 10, 2013, Green Tree also sent Banks a “Grace Period Notice” stating that she was more than 30 days past due and may seek approved HUD counseling to avoid foreclosure. (Id. at ¶ 33). Green Tree sent her a notice of default followed by a notice of default and acceleration. On May 29, 2013, Green Tree responded to Banks’ first dispute letter, stating “As of the date of this correspondence, your principal balance is $31, 817.00… We have enclosed a Verification of Mortgage (VOM), payment history, and copy of the Note, for the above referenced account.” (Id. at ¶ 36). Green Tree continued to assess late fees and other charges.

On July 17, 2013, Banks sent Green Tree a second QWR and dispute letter. Green Tree sent Banks two more notices of default, on August 12 and 13, 2013, in an attempt to collect the “defaulted” debt. By mid-August, Banks had paid all of the late fees and other amounts that Green Tree claimed she owed. (Id. at ¶ 33).

Banks sent her third dispute letter and QWR on October 19, 2013, to both Green Tree and BANA. The letter requested verification of the debt, including payment history, complete loan transaction history, the full name, address, and telephone number of the current holder of the original mortgage note. (Id. at ¶ 45). In letters dated October 29 and 30, 2013, BANA acknowledged receipt of Banks’ third dispute letter. On November 2, 2013, BANA responded to Banks’ third dispute letter that included only BANA’s loan history without any explanation. Green Tree did not respond to Banks’ second or third dispute letter.

Banks alleges that Green Tree has called Banks’ cell phone and her work phone at least fifteen times without her consent. (Id. at ¶ 51). Nearly every time they called, Banks’ asked that they not call her cell phone. (Id. at ¶ 52). Banks’ alleges the calls were made using an automated calling system.

Legal Standard

To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atl. Cop. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Federal Rule of Civil Procedure 8(a)(2) sets forth the basic pleading requirement of a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although Rule 8 does not require a plaintiff to plead particularized facts, the factual allegations in the complaint must sufficiently raise a plausible right to relief above a speculative level. Arnett v. Webster, 658 F.3d 742, 751-52 (7th Cir. 2011). Rule 9(b) requires a plaintiff to state allegations of fraud with particularity. Fed.R.Civ.P. 9(b). When considering a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all well-pleaded factual allegations in the complaint and draw all reasonable inferences in favor of the plaintiff. Iqbal, 556 U.S. at 668.

Discussion

Banks filed her six-count complaint against both Green Tree and BANA alleging breach of contract and violations of the Fair Debt Collection Practices Act (“FDCPA”), the Illinois Consumer Fraud Act (“ICFA”), the Real Estate Settlement Procedures Act (“RESPA”), the Truth in Lending Act (“TILA”), and the Telephone Consumer Protection Act ...


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