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Robinson v. Green Tree Servicing, LLC

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

June 26, 2015

TOMMY ROBINSON, Plaintiff,
v.
GREEN TREE SERVICING, LLC, Defendant.

OPINION AND ORDER

CHARLES RONALD NORGLE, District Judge.

Plaintiff Tommy Robinson ("Plaintiff") sues Defendant Green Tree Servicing, LLC ("Defendant") for violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq. (Count I); violation of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 (Count II); and violation of the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA"), 815 Ill. Comp. Stat. 505/10a (Count III). On February 25, 2015, Defendant filed a motion for summary judgment on all three counts, and on March 3, 2015, Plaintiff filed a partial motion for summary judgment on Count II. The motions are fully briefed and before the Court. For the followings reasons, both motions are denied.

I. BACKGROUND[1]

Defendant serviced two mortgages secured by Plaintiff's residence located in Elgin, Illinois. Plaintiff stopped making payments on the mortgages in June of 2011. Defendant filed an action to foreclose in August of 2011. On December 8, 2011, Plaintiff filed for bankruptcy, and indicated that he intended to surrender the property. The foreclosure action was automatically stayed by Plaintiff's bankruptcy filing, and once the stay was lifted in January of 2012, the property was eventually sold at a foreclosure sale in October of 2012.

The bankruptcy court granted Plaintiff a discharge on March 26, 2012. Plaintiff alleges that after he was granted a discharge, Defendant placed approximately 100 calls to him from March of 2012 through September of 2012 in an attempt to collect on the debt. Defendant admits to placing the calls, but argues that the calls were made in order to ascertain whether Plaintiff intended to keep the property, not in an attempt to collect on the debt. Although Plaintiff claimed at his deposition that he answered approximately ten to twenty of the calls, Defendant's records indicate that none of the calls were answered.

Defendant further alleges that, although Plaintiff originally expressed his intent to surrender the property during the bankruptcy proceedings, inspections of the property conducted on February 3, 2012, March 27, 2012, July 10, 2012, August 11, 2012, and September 8, 2012, showed that the property appeared to be occupied, as the house remained fully furnished and cars were parked in the driveway. Plaintiff admits that the inspections showed that the property appeared to be occupied. Nevertheless, Plaintiff argues that Defendant knew that he had vacated the property because he indicated his intent to surrender it on the bankruptcy schedules and proceedings, and he listed a different address from the subject property on the bankruptcy papers. Plaintiff alleges that Defendant's calls attempting to collect on the debt between March 2012 and September 2012, despite his discharge in bankruptcy, violated the FDCPA, the TCPA, and the ICFA.

II. DISCUSSION

A. Standard of Decision

"Summary judgment is appropriate only if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" Advance Cable Co., LLC v. Cincinnati Ins. Co., LLC, Nos. 14-2620 & 14-2748, 2015 U.S.App. LEXIS 9805, at *5-6 (7th Cir. June 11, 2015) (quoting Fed.R.Civ.P. 56(a). "A fact is material' if it is one identified by the law as affecting the outcome of the case. An issue of material fact is genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Hess v. Bresney, 784 F.3d 1154, 1158 (7th Cir. 2015) (internal quotation marks and citations omitted). The Court views the evidence and draws all reasonable inferences in the light most favorable to the nonmoving party. Id .; see also Advance Cable Co., LLC, 2015 U.S.App. LEXIS 9805, at *5 ("In reviewing cross-motions for summary judgment, we take the motions one at a time and then, as usual, construe all facts and draw all reasonable inferences in favor of the non-moving party.").

B. Motions for Summary Judgment

1. Defendant's Motion for Summary Judgment on Count I

First, Defendant argues that it is entitled to judgment as a matter of law on Count I because none of the conduct occurred within the one-year period of limitation set out in the FDCPA. The FDCPA provides that "[a]n action to enforce any liability created by this title [5 U.S.C. §§ 1692 et seq.] may be brought in any appropriate United States district court... or in any other court of competent jurisdiction, within one year from the date on which the violation occurs." 15 U.S.C. § 1692k(d).

Plaintiff filed his Complaint on September 18, 2013. Thus, only conduct that occurred on September 18, 2012 and later would be actionable under the statute. Defendant argues that its records show that the last call that it made to Plaintiff was on September 7, 2012, when it left a voicemail. Plaintiff, however, argues that his girlfriend, Melissa Waxler ("Waxler"), who was authorized to talk to Defendant, testified at her deposition that she recalled receiving a call from Defendant approximately thirty days after the October 4, 2012 sheriff's sale of the property. Viewing the facts in a light most favorable to Plaintiff, Waxler's testimony that she received a call in October or November of 2012, within the period of ...


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