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Twomey v. Ocwen Loan Servicing, LLC.

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

August 22, 2016



          John Z. Lee United States District Judge

         Plaintiff James Twomey claims that Defendant Ocwen Loan Servicing LLC’s collection efforts violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, the Bankruptcy Code, 11 U.S.C. §§ 524, 105, the Illinois Consumer Fraud and Deceptive Practices Act (“ICFA”), 815 Ill. Comp. Stat. 505/2 et seq., and the Fair Credit Reporting Act (“FCRA”), 15 U.S.C § 1681 et seq. Plaintiff also claims that Defendant Experian Information Solutions, Inc., violated the FCRA by improperly reporting his credit history. Defendants Ocwen and Experian have moved to dismiss Counts III and VI, respectively, pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons given below, the Court grants Ocwen’s motion and denies Experian’s motion.

         Factual Background

         In 2005, Twomey secured a mortgage for his residential property from GMAC Mortgage, LLC. Compl. ¶ 13. On August 1, 2012, Twomey refinanced with Ocwen and granted Ocwen a mortgage on the property. Id. ¶ 14. The subject loan was for $183, 326.00. Id. In December 2013, Twomey defaulted on the subject loan. Id. ¶ 15.

         On February 28, 2014, Plaintiff filed a Chapter 13 bankruptcy petition. Id. ¶ 16; see Compl., Ex. A. On May 2, 2014, the Honorable Bruce W. Black confirmed Twomey’s Original Chapter 13 Plan, proposing that Twomey surrender the property to Ocwen in full satisfaction of its claims. Id. ¶¶ 19, 22. After the Plaintiff performed his duties under the Original Plan, the Bankruptcy Court entered an Order of Discharge, which included the subject loan. Id. ¶¶ 23-24; see Compl., Ex. F. The Order of Discharge stated:

The discharge prohibits any attempt to collect from the debtor a debt that has been discharged. For example, a creditor is not permitted to contact a debtor by mail, phone, or otherwise, to file or continue a lawsuit, to attach wages or other property, or to take any other action to collect a discharged debt from the debtor . . . .

Id. ¶ 25. Defendants were served with the Order of Discharge on November 14, 2014. Id. ¶ 26. Twomey’s bankruptcy case closed on December 18, 2014. Id. ¶ 28.

         According to the complaint, after the discharge, from January 2015 through September 2015, Ocwen sent Twomey “no less than 15 separate dunning correspondences” and called Twomey’s cell phone “no less than 90” times. See Id. ¶¶ 31, 42. During this period, Ocwen filed foreclosure proceedings against the subject property. Id. ¶ 38. Plaintiff alleges that “Ocwen’s collection calls were made with actual knowledge of [Twomey’s] bankruptcy filing and discharge.” Id. ¶ 44.

         As for Experian, Plaintiff obtained his credit report from the company after the conclusion of his bankruptcy case. Id. ¶ 49. The Experian credit report contained two entries for “Ocwen Loan Servicing.” Id., Ex. I. The first entry identified the debt as Account # 68789XXXX. Under “Account Type, ” the entry noted that it was for “Mortgage Companies.” And the entry stated a “Balance” of $182, 542.00, and a “Past Due” amount of $18, 953.00. Finally, under “Payment Status, ” the entry had the following notation: “Debt included in or discharged through Bankruptcy Chapter 13.” Id.

         The very next entry in the exhibit also is for an account numbered “68789XXXX” for “Ocwen Loan Servicing.” This entry, however, noted a balance of $0, and a past due amount of $0. The seco e try also co tai e the otatio, “ e t i cl e i or isc arge t ro g a kr tcy Chapter 13.” Id.

         On September 30, 2015, the Plaintiff sent a credit dispute letter to Experian with respect to the first entry, requesting that his credit file be updated to report a zero balance and the discharged status of the subject loan. Id. ¶ 50. The dispute letter was sent via certified mail to Experian and included the Plaintiff’s bankruptcy schedules, Confirmed Plan, and Discharge Order. Id. The complaint alleges that Experian failed to respond to the Plaintiff’s dispute letter. See Id. ¶ 54.

         Legal Standard

         A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Furthermore, the complaint must “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although the complaint does not have to include “detailed factual allegations, ” it must “include sufficient facts to state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see Cole v. Milwaukee Area Tech. Coll. Dist., 634 F.3d 901, 903 (7th Cir. 2011). In deciding a Rule 12(b)(6) motion to dismiss, the court “construe[s] the . . . [c]omplaint in the light most favorable to Plaintiff, accepting as true all well-pleaded ...

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