United States District Court, N.D. Illinois, Eastern Division
THOMAS QUINN and THERESA QUINN, individually and on behalf of a class of similarly situated persons, Plaintiffs,
SPECIALIZED LOAN SERVICING, LLC, Defendant.
MEMORANDUM OPINION AND ORDER
E. Bucklo United States District Judge.
Thomas and Theresa Quinn (“the Quinns”) have
brought this suit, individually and on behalf of a purported
class, against Specialized Loan Servicing, LLC
(“SLS”) for violations of the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C.
§ 1692 et seq., and the Illinois Consumer Fraud
and Deceptive Practices Act (“ICFA”), 815 ILCS
505/1 et seq. SLS has moved to dismiss the complaint
and, in a separate motion, has moved to strike certain of the
complaint’s class action allegations. For the reasons
discussed below, the motion to dismiss is granted in part and
denied in part, and the motion to strike is denied.
November 2008, the Quinns obtained a loan from Cherry Creek
Mortgage Company for the purchase of their home. After
experiencing a series of misfortunes, they defaulted on their
mortgage payments. The loan was subsequently transferred to
Bank of America (“Bof A”), and the Quinns
retained The Residential Litigation Group (“RLG”)
to negotiate the loan dispute with Bof A. In July 2012, Bof A
filed a foreclosure action against the Quinns. To act as
their attorneys in the foreclosure proceedings, the Quinns
retained Consumer Legal Group, P.C. (“CLG”).
point between September and November 2013, servicing of the
Quinns’ loan was transferred from Bof A to SLS. The
amended complaint alleges that at some point around September
2013, SLS began sending them correspondence demanding payment
on the loan. SLS also began sending “field
inspectors” to the Quinns’ home, who stationed
themselves conspicuously outside of the Quinns’
residence and took pictures of the premises. Beginning in
March 2015, the inspections became more frequent. In some
cases, inspectors visited the Quinns’ home as many as
three times in a given month. This caught the attention of
the neighbors and prompted questions that caused the Quinns
humiliation and embarrasement.
November 2015, an inspector visited the Quinns’
residence while they were away and left a “door
hanger” that included a slip of paper stating:
“AT THE REQUEST OF SPECIALIZED LOAN SERVICE, AN
INDEPENDENT FIELD INSPECTOR CALLED ON YOU TODAY. PLEASE
CONTACT SPECIALIZED LOAN SERVICING AT 1-800-306-6062. THANK
YOU.” Compl. ¶ 39. In December 2015, an inspector
left another hanger containing essentially the same message
on the Quinns’ door. When the Quinns dialed the phone
number provided in the message, they reached SLS’s
collections department. There was no phone option for calls
pertaining to home inspections.
January 2016, an inspector visited the Quinns’ home
once again. At the time, the Quinns’ daughter was home
alone and she became frightened after the inspector began
banging on the door. She called the Quinns but they felt
helpless and could do nothing more than remain on the phone
with her until the banging ceased. When the Quinns arrived at
home, they found another door hanger like the first two.
Quinns’ amended complaint asserts several causes of
action under the FDCPA, some individually, and some on behalf
of a proposed class. Count I is a class claim alleging that
SLS violated FDCPA § 1692c(a)(2) by communicating with
the Quinns directly despite its awareness that they were
represented by counsel; Count II is a class claim alleging
that SLS violated FDCPA § 1692e by using false,
deceptive, or misleading representations in attempting to
collect a debt; Count III asserts an individual claim
alleging that SLS violated FDCPA § 1692d by engaging in
harassing, oppressive, or abusive conduct in attempting to
collect a debt. Based on essentially the same conduct as that
alleged in Counts I-III, the Quinns assert claims under the
ICFA, both on behalf of the class (Count IV) and individually
moved to dismiss all of the claims, and has also moved to
strike the class action allegations from Counts I and IV. I
address the motion to dismiss first and then turn to the
motion to strike.
motion to dismiss pursuant to Federal Rule 12(b)(6)
challenges the sufficiency of a complaint, not its merits.
See, e.g., Gibson v. City of Chicago, 910
F.2d 1510, 1520 (7th Cir. 1990). In evaluating the
complaint’s sufficiency, I must “construe it in
the light most favorable to the nonmoving party, accept
well-pled facts as true, and draw all inferences in [the
plaintiff’s] favor.” Cincinnati Life Ins. Co.
v. Beyrer, 722 F.3d 939, 946 (7th Cir. 2013) (quotation
marks and brackets removed).
asserts a class claim under § 1692c(a)(2). “The
FDCPA § 1692c(a)(2) states that a debt collector may not
communicate with a consumer, in connection with the
collection of any debt, if the debt collector knows that the
consumer is represented by counsel.” Bravo v.
Midland Credit Mgmt., Inc., 812 F.3d 599, 602 (7th Cir.
2016). It is well settled that § 1692c(a)(2) is violated
only where the debt collector has actual knowledge of the
debtor’s legal representation. See, e.g.,
Randolph v. IMBS, Inc., 368 F.3d 726, 730 (7th Cir.
2004). Moreover, the debt collector must have knowledge not
just that the debtor is represented by counsel generally, but
that he or she is represented in connection with the specific
debt at issue. See, e.g., Miller v. Allied
Insterstate, Inc., No. 04 C 7126, 2005 WL 1520802, at *4
(N.D. Ill. June 27, 2005) (citing cases).
argues that the Quinns have failed to allege that it had
actual knowledge that they were represented by counsel. I
disagree. The amended complaint asserts that when SLS began
servicing the Quinns’ loan, the prior servicer provided
SLS with records that included a notice that the Quinns were
represented by RLG vis-à-vis the loan dispute with Bof
A. The amended complaint also alleges that SLS received
copies of the foreclosure pleadings identifying CLG as the
Quinns’ attorney for purposes of the foreclosure
action. Additionally, the Quinns allege that SLS received and
responded to discovery requests from the Quinns’
foreclosure counsel. These allegations plausibly assert that
SLS knew that the Quinns were represented by counsel when it
attempted to contact them.
this, SLS cites a trio of cases from the Middle District of
Florida: Wolhuter, v. Carrington Mtg. Servs., LLC, et
al, Case No. 8:15-cv-00552 (M.D. Fla. Oct. 18, 2015);
Nordwall v. PNC Mortgage, No. 2:14-CV-747-FTM-CM,
2015 WL 4095350 (M.D. Fla. July 7, 2015); and Wright v.
Select Portfolio Servicing, Inc., No.
8:14-CV-2298-T-30TGW, 2015 WL 419618 (M.D. Fla. Feb. 2,
2015). In each of these cases, the plaintiffs alleged that
the debt collectors had knowledge of their representation by
counsel because the debt collectors had received notice of
the plaintiffs’ attorneys’ appearances in
foreclosure actions. And in each case, the courts held that
the debt collectors’ knowledge of the plaintiffs’
representation in the foreclosure proceedings was not
sufficient to establish knowledge that the plaintiffs were
represented by counsel for other debt-collection purposes.
See, e.g., Wolhouter, No. 8:15-cv-00552 at
10; Nordwall, 2015 WL 4095350, at *3;
Wright, 2015 WL 419618, at *5.
decisions are inapposite. The plaintiffs in these cases were
represented by a single firm or attorney, and the
representation was limited to foreclosure proceedings. Here,
however, the amended complaint alleges that the Quinns were
represented by counsel -- and that SLS knew they were
represented by counsel -- in connection with debt-collection
matters beyond the foreclosure action. At this juncture, I am
required to take the amended complaint’s allegations as
true and to construe them in the light most favorable to the
Quinns. Accordingly, I deny SLS’s motion to dismiss
Count I of the amended complaint.
Section 1692e(10) & (11)
II of the amended complaint asserts a claim under §
1692e of the FDCPA, which prohibits debt collectors from
“us[ing] any false, deceptive, or misleading
representation or means in connection with the collection of
any debt.” 15 U.S.C. § 1692e. The Quinns claim
that SLS violated subsection 10 of the statute, which
prohibits “[t]he use of any false representation or
deceptive means to collect or attempt to collect any debt or
to obtain information concerning a consumer, ” 15
U.S.C. § 1692e(10); and also subsection 11, which
requires debt collectors “to disclose in the initial
written communication with ...