United States District Court, N.D. Illinois, Eastern Division.
MEMORANDUM OPINION AND ORDER
Z. Lee United States District Judge
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
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.
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.
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.
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.
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.
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.
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