United States District Court, Northern District of Illinois, Eastern Division
JEFFREY R. MODICA, KATARZYNA A. MODICA a.k.a. KATIE MODICA, Plaintiffs,
GREEN TREE SERVICING, LLC., a Delaware Corporation, Defendant.
MEMORANDUM OPINION AND ORDER
JAMES B. ZAGEL UNITED STATES DISTRICT JUDGE
Plaintiffs Jeffrey R. Modica (“Jeff”) and Katarzyna A. Modica, a.k.a. Katie Modica (“Katie”) (collectively, “Plaintiffs”) filed this complaint against Defendant Green Tree Servicing, LLC (“Defendant”) alleging violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”) and the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/10A (“ICFA”). Plaintiff Katie and Defendant have filed cross-motions for summary judgment. For the foregoing reasons, summary judgment is granted in favor of Defendant in part and Plaintiffs in part.
I. FACTUAL BACKGROUND
On June 6, 2008, Plaintiffs filed a joint Chapter 7 bankruptcy and was discharged of all of their debts on September 9, 2008, including a second mortgage loan from Countrywide Home Loans (“Countrywide”) in the approximate amount of $51, 000 (“subject debt”) on a home located at 240 South Villa Avenue (“Property”). At some point after the discharge of Plaintiffs’ debts, the servicing and/or ownership of the subject debt was transferred from Countryside to Defendant. Plaintiffs never reaffirmed the subject debt and understood that the subject debt could be foreclosed upon. Jeff made monthly payments on the subject debt for almost three years following the discharge of Plaintiffs’ debts and Plaintiffs resided in the Property. Plaintiffs fell short on a March 2011 payment by $27, and on September 10, 2011, Jeff made his last payment on the subject debt. Around October 2011, after Plaintiffs stopped making payments to Defendant, Defendant started attempting to contact Jeff by telephone. Neither Jeff nor Katie had provided their cell phone numbers to Defendant nor included it on a mortgage application.
Defendant employed two methods to place outgoing calls to Plaintiffs from October 2011 to April 24, 2012: (1) Aspect Unified IP Version 6.6 Service Pack 2 (“Dialer”), a predictive dialing system which generates outbound dials at a rate of more than 100 calls per minute; and (2) a UCSe custom-built user interface software that accesses a customer’s phone number that is stored on a server, rather than a computer, and requires a human to click a “dial” option (“click method”). For an agent to make a telephone call through the Dialer, an agent must be logged on to the Dialer from the agent’s computer. If the Dialer detected that a live person had answered the call, the Dialer would then transfer the call to an available agent who was logged on to the Dialer. On the other hand, a live calling agent using the manual dialing method was required to initiate a call by telephone by locating the customer’s phone number, which is accessed by connecting to the server, and clicking the phone number on his computer. UCSe can interact with the Aspect Unified IP Version 6.6 Service Pack 2 in such a way that an agent could sign in to the predictive dialing system through UCSe and take part in a predictive dialer campaign.
Defendant used a predictive dialing system, i.e. Dialer, to make six calls to Jeff’s cell phone between October 18 and 24, 2011. On October 24, 2011, Jeff returned Defendant’s call and told Defendant’s representative, Karen Ferguson, that Katie had sent in a double payment and that he would check with her and call back that afternoon. Katie had not, in fact, sent in a double payment and Jeff did not call Defendant back that afternoon. Ferguson attempted to contact Jeff in the days that followed, sometimes leaving messages. According to Jeff, every time Ferguson left a voicemail she said, “Jeff, this is Katie Ferguson from Green Tree. You need to give me a call back at this number. [I think she left her extension.] It is very important.”
After these unsuccessful attempts to contact Jeff, Ferguson located one of Plaintiffs’ neighbors, called her, and left a voicemail for her, requesting that she ask Jeff to call Green Tree. Katie then called Ferguson, on November 12, to inquire about why Green Tree had called her neighbor. As no payments were forthcoming, Ferguson continued to frequently attempt to contact Jeff and Katie. Jeff finally called Defendant in response to Ferguson’s voicemails on December 20, 2011 and spoke with Defendant for fifty-four minutes. In the months that followed, Plaintiffs continued to live at the Property but made no payments to Defendant. Ferguson continued her attempts to contact Jeff, directly or through Katie or by leaving a voicemail asking him to call. Jeff did not return any of these voicemails. Katie alleges that in early March 2012, Defendant sent a representative to the Property to determine whether the Property was still occupied and what Jeff intended to do. Katie answered the door and Defendant’s representative handed Katie a paper which had Defendant’s logo on it. The representative said “When Jeff gets home, have him call me-it’s very important.” Jeff was not home.
Between November 12, 2011 and April 24, 2012, Defendant placed a total of fifty-four phone calls to just Katie’s cell phone and numerous additional calls to Jeff’s cell phone through a manual “click” method. Plaintiffs claim that Defendant placed over one hundred and thirty phone calls to Plaintiffs’ cellular phones between October 18, 2011 and April 23, 2012. Defendant sent a correspondence to Plaintiffs advising them that Defendant is releasing the lien on the Property in November 2013, after this lawsuit was filed.
II. LEGAL STANDARD
Summary judgment should be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). A genuine issue of triable fact exists only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Pugh v. City of Attica, Ind., 259 F.3d 619, 625 (7th Cir. 2001). The Court’s “function is not to weigh the evidence but merely to determine if there is a genuine issue for trial.” Bennett v. Roberts, 295 F.3d 687, 694 (7th Cir. 2002).
Once the moving party has set forth the basis for summary judgment, the burden then shifts to the nonmoving party who must go beyond mere allegations and offer specific facts demonstrating that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); see Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The nonmoving party must offer more than “[c]onclusory allegations, unsupported by specific facts” in order to establish a genuine issue of material fact. Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003) (citing Lujan v. Nat’l Wildfire Fed’n, 497 U.S. 871, 888 (1990)). A party will be successful in opposing summary judgment only if it presents “definite, competent evidence to rebut the motion.” EEOC v. Sears, Roebuck & Co., 233 F.3d 432, 437 (7th Cir. 2000). I consider the record in the light most favorable to the nonmoving party, and draw all reasonable inferences in the nonmoving party’s favor. Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002).
A. Count I: ...