United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
E. Chang, Judge
Caprel brought this suit against Specialized Loan Servicing,
Inc. (which calls itself SLS), alleging that SLS violated the
Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §
1692 et seq. Caprel says that, back in Fall 2015, SLS
sent his lawyer two letters in an attempt to collect on
Caprel's mortgage debt. R. 13, Second Am.
Compl. Those letters, according to Caprel,
contained false and misleading representations under §
1692e. Id. Caprel also contends that the letters
constituted unlawful harassment or abuse under § 1692d.
Id. SLS now moves to dismiss Caprel's claims
under Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim. R. 14, Mot. to Dismiss. For the reasons stated
below, the motion to dismiss is granted, but Caprel will be
given one more chance to amend the complaint.
purposes of this motion, the Court accepts as true the
allegations in the Second Amended Complaint (for
convenience's sake, the "Amended Complaint").
Erickson v. Pardus, 551 U.S. 89, 94 (2007). Caprel
is an Illinois resident who defaulted on his mortgage debt.
Second Am. Compl. ¶¶ 4, 11. After he defaulted,
Caprel filed for bankruptcy on October 31, 2014; by February
2015, his mortgage debt was completely discharged.
Id. ¶¶ 13, 14. SLS is a debt collector
that acquired and serviced Caprel's defaulted mortgage
loan. Id. ¶¶ 10-11.
October 8, 2015 and November 8, 2015, months after the
bankruptcy proceeding had ended, SLS sent a letter to
Caprel's lawyer about his outstanding mortgage
debt. Second Am. Compl. ¶¶ 16, 19. The
letters contained information about the Home Affordable
Modification Program (HAMP), a government program that helps
homeowners refinance or modify their mortgages, and
encouraged Caprel (via his lawyer) to participate in the
program. R. 13-1, Exh. A, 10/08/2015 HAMP Solicitation
Letter; R. 13-2, Exh. B, 11/08/2015 HAMP Solicitation Letter.
letter displayed a bolded disclaimer at the top of the first
page, which stated: "THIS [COMMUNICATION] IS FOR
INFORMATIONAL PURPOSES ONLY." 10/08/2015 HAMP
Solicitation Letter at 1; 11/08/2015 HAMP Solicitation Letter
at 1. Both letters also contained a "Frequently Asked
Questions" section that addressed general inquiries
about mortgage loan defaults, HAMP loan modifications, and
home foreclosures. 10/08/2015 HAMP Solicitation Letter at 15;
11/08/2015 HAMP Solicitation Letter at 3. This was one of the
Q: Will My credit Score Be Affected by My Late Payments or
Being in Default?
A: The delinquency status of your loan will be reported to
credit reporting agencies as well as your entry into a
Repayment Plan, Forbearance Plan, or Trial Period Plan in
accordance with the requirements of the Fair Credit Reporting
Act and the Consumer Data Industry Association requirements.
Second Am. Compl. ¶¶ 18, 20; 10/08/2015 HAMP
Solicitation Letter at 15; 11/08/2015 HAMP Solicitation
Letter at 3.
October letter also contained another bolded disclaimer,
which emphasized that the letter was only for informational
purposes if the recipient was in bankruptcy or had their
mortgage debt discharged in a bankruptcy proceeding:
THE PURPOSE OF THIS COMMUNICATION IS TO OFFER YOU LOSS
MITIGATION ASSISTANCE THAT MAY HELP YOU BRING OR KEEP YOUR
LOAN CURRENT THROUGH AFFORDABLE PAYMENTS. IF YOU ARE
CURRENTLY IN A BANKRUPTCY PROCEEDING, OR HAVE PREVIOUSLY
OBTAINED A DISCHARGE OF THIS DEBT UNDER APPLICABLE BANKRUPTCY
LAW, THIS NOTICE IS FOR INFORMATION ONLY AND IS NOT AN
ATTEMPT TO COLLECT THE DEBT.
10/08/2015 HAMP Solicitation Letter at 11.
weeks after his lawyer received the second letter from SLS,
Caprel filed this action. R. 1, Compl. Caprel brings two
claims under the Fair Debt Collection Practices Act (FDCPA),
15 U.S.C. § 1692 et seq. Second Am. Compl.
¶¶ 23, 24. First, Caprel alleges that the two
letters SLS sent to his lawyer amounted to "conduct the
natural consequence of which [wa]s to harass, oppress, or
abuse" in violation of 15 U.S.C. § 1692d.
Id. ¶ 23. Second, Caprel alleges that the two
letters, and more specifically, the "Frequently Asked
Questions" sections of those letters, were "false,
deceptive, or misleading" in violation of 15 U.S.C.
§ 1692e. Id. ¶¶ 18-20, 24. SLS now
moves to dismiss the Amended Complaint for failure to state a
claim. See Mot. to Dismiss.
Standard of Review
Federal Rule of Civil Procedure 8(a)(2), a complaint
generally need only include "a short and plain statement
of the claim showing that the pleader is entitled to
relief." Fed.R.Civ.P. 8(a)(2). This short and plain
statement must "give the defendant fair notice of what
the ... claim is and the grounds upon which it rests."
Bell Ml. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(alteration in original) (internal quotation marks and
citation omitted). The Seventh Circuit has explained that
this rule "reflects a liberal notice pleading regime,
which is intended to 'focus litigation on the merits of a
claim' rather than on technicalities that might keep
plaintiffs out of court." Brooks v. Ross, 578
F.3d 574, 580 (7th Cir. 2009) (quoting Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 514 (2002)).
motion under Rule 12(b)(6) challenges the sufficiency of the
complaint to state a claim upon which relief may be
granted." Hallinan v. Fraternal Order of Police of
Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009).
"[A] complaint must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is
plausible on its face.'" Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 570). These allegations "must be enough to raise a
right to relief above the speculative level."
Twombly, 550 U.S. at 555. The allegations that are
entitled to the assumption of truth are those that are
factual, rather than mere legal conclusions. Iqbal,
556 U.S. at 678-79.
brings two FDCPA claims under 15 U.S.C. §§ 1692d,
1692e against SLS based on the two letters that it sent to
his attorney in October and November 2015. Second Am. Compl.
¶¶ 23, 24. In its motion to dismiss, SLS contends
that the Amended Complaint should be dismissed for two
reasons: first, SLS asserts that the letters are not even
subject to the FDCPA because they were not sent "in
connection with the collection of a debt"-a prerequisite
for triggering the FDCPA. Mot. to Dismiss at 7-13; see
also R. 27, Def's Reply Br. at 6-10. Second, SLS
asserts that even if the letters are subject to FDCPA
scrutiny, the fact that they were sent to Caprel's
lawyer, as opposed to Caprel himself, forecloses any
possibility that the letters were false and ...