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Gajewski v. Ocwen Loan Servicing, LLC

United States District Court, N.D. Illinois, Eastern Division

June 25, 2015

JOZEF GAJEWSKI, WIESLAWA GAJEWSKI, and ROBERT R. GAJEWSKI, Plaintiffs,
v.
OCWEN LOAN SERVICING, LLC; CODILIS AND ASSOCIATES, P.C.; and NATIONSTAR MORTGAGE, LLC, Defendants.

MEMORANDUM OPINION AND ORDER

JOHN W. DARRAH, District Judge.

Plaintiffs, proceeding pro se, have brought this action, alleging one federal claim for violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et. seq., and fourteen state claims. Defendants, separately, move to dismiss this action pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(2) or, in the alternative, move to stay the Complaint, pending resolution of the foreclosure case against Plaintiffs.

BACKGROUND

The following facts are taken from the Complaint and its exhibits and assumed to be true for purposes of the Motions. In April 2008, Plaintiff Jozef Gajewski obtained a loan and executed a promissory note for $388, 000.00. As security for the loan, Jozef and his wife, Plaintiff Wieslawa Gajewski, granted a mortgage on their property located at 6 Hickory Lane, Hawthorne Woods, Illinois, 60047 ("the Property"). (Compl. Exh. 5). Their son, Plaintiff Robert Gajewski, is not a party to the loan, the promissory note, or the mortgage. (Compl. Exhs. 4-5.)

In August 2009, the loan was assigned to a new party, Cenlar Loan Administration & Reporting ("Cenlar"). (Compl. ¶¶ 62, 72.) Plaintiffs contend that Jozef and Wieslawa paid the mortgage payment for August 2009, but Cenlar did not credit them for the payment. ( Id. ¶¶ 77, 83; Exh. 12.) In November 2009, the loan was assigned to Defendant Ocwen Loan Servicing LLC ("Ocwen"). The August 2009 mortgage payment was still disputed at that time.

Ocwen first initiated a foreclosure proceeding on March 3, 2010. ( Id. ¶ 129.) Ocwen and Jozef and Wieslawa then agreed to modify the loan, effective May 2010. ( Id. ¶ 278; Exh. 40.) However, Jozef and Wieslawa repeatedly made monthly payments that differed from Ocwen's monthly account statements. ( Id. ¶¶ 189-259.) In March 2011, due to disputes regarding their account status, Jozef and Wieslawa ceased making payments to Ocwen. ( Id. ¶ 261.) Ocwen continued sending notices of default and required Plaintiffs to list the Property for "short sale" on April 4, 2011. ( Id. ¶¶ 264, 267, 269.)

Beginning on August 5, 2011, Ocwen retained Defendant, the law firm of Codilis and Associates, P.C. ("Codilis"), to assist with the collection attempts. Another foreclosure action was initiated by Ocwen through Codilis on January 13, 2012. That action was dismissed by Codilis on December 7, 2012, after Jozef and Wieslawa submitted a loan modification application. (Compl. ¶¶ 346, 348.)

On January 22, 2013, Ocwen and Codilis filed a foreclosure complaint against Jozef and Wieslawa in state court in Lake County, Illinois, Case No. 2013-CH-273. ( Id. ¶ 361.) That action is still pending. On May 16, 2013, Ocwen assigned rights to the loan to Defendant Nationstar Mortgage, LLC ("Nationstar"). (Compl. ¶¶ 402, 467, 486.) Nationstar has substituted into the pending foreclosure action for Ocwen. (Compl. ¶ 470.) On December 4, 2014, Jozef moved for leave to file amended counterclaims against Nationstar in the foreclosure action; that motion is still pending.

On November 17, 2014, Jozef and Wieslawa recorded a quit claim deed, transferring the property to themselves and Robert in joint tenancy. (Compl. Exh. 0.)

On November 18, 2014, Plaintiffs filed this lawsuit. The Complaint consists of 105 pages, 633 paragraphs, and 211 exhibits. Plaintiffs' claims relate to the servicing and debt collection of their loan and mortgage. Defendants contend, among other things, that Plaintiffs' sole federal claim for violation of the FDCPA is untimely and that the Court should decline supplemental jurisdiction over Plaintiffs' remaining state law claims. Defendants further contend that Robert lacks standing in this lawsuit.

LEGAL STANDARD

12(b)(1) Motion

A Rule 12(b)(1) motion challenges standing and ripeness. Fed.R.Civ.P. 12(b)(1). Under Article III § 2 of the United States Constitution, federal courts are limited to hearing "cases" and "controversies." Allen v. Wright, 468 U.S. 737, 750 (1984). This case-or-controversy limitation requires "a claim that is ripe and a plaintiff who has standing." Ind. Right to Life, Inc. v. Shepard, 507 F.3d 545, 549 (7th Cir. 2007). These concepts are related but distinct: "Whereas ripeness is concerned with when an action may be brought, standing focuses on who may bring a ripe action." Id. (quoting Pic-A-State Pa. v. Reno, 76 F.3d 1294, 1298 n. 1 (3rd Cir. 1996) (emphasis in original)). The plaintiff bears the burden of alleging facts sufficient to establish standing and ripeness. See, e.g., Scanlan v. Eisenberg, 669 ...


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