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Azari v. Seterus, Inc.

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

October 17, 2016

HELYA AZARI, Plaintiff,
v.
SETERUS, INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          JOHN W. DARRAH United States District Court Judge.

         Plaintiff Helya Azari filed a Complaint, alleging violations of the Fair Debt Collection Practices Act (“FDCPA”), a Bankruptcy Discharge Injunction, and the Illinois Consumer Fraud and Deceptive Practices Act (“ICFA”). Defendant subsequently filed a Motion to Dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1). For the reasons discussed below, Defendant's Motion to Dismiss [17] is granted in part and denied in part.

         BACKGROUND

         On March 11, 2013, Plaintiff executed a first mortgage in favor of Ocwen Loan Servicing (“Ocwen”) and secured the loan with the subject property. (Compl., ¶ 7.) On September 30, 2014, Plaintiff filed a Chapter 13 bankruptcy petition in the United States Bankruptcy Court, Northern District of Illinois. (Id. ¶ 8.) Plaintiff subsequently filed a Modified Plan, which provided:

Debtor is surrendering the real property located at 804 Mansfield Court, Schaumburg, Illinois[, ] to Ocwen Loan Servicing, JP Morgan Chase and Sheffeild Towne Association in full satisfaction of their claims. Pursuant to 11 U.S.C 1311(b)(9), legal title to the aforementioned property shall vest in Ocwen Loan Servicing upon confirmation of the Debtor's Chapter 13 Plan.

(Compl. Ex. C.) On January 20, 2015, the Modified Plan was confirmed by the Bankruptcy Court, and a discharge order was entered on June 8, 2015. (Compl., ¶¶ 14, 17.) The order included all dischargeable debts, including the mortgage. The order 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.

(Compl., Ex. E.) On September 2, 2015, the Plaintiff's bankruptcy case was closed. (Compl., ¶ 21.)

         On or around December 7, 2015, Defendant acquired the servicing rights to the mortgage. (Id. ¶ 23.) Defendant sent a Notice of Default to the Plaintiff on March 9, 2016, which stated, in relevant part:

Your loan is in default, due to non-payment of the following amount: Amount Due: $27, 843.20; Amount Due By: April 13, 2016.
* * *
If full payment of the default amount is not received by us on or before April 13, 2016, we will accelerate the maturity date of your loan and upon such acceleration the ENTIRE balance of the loan, including principal, accrued interest, and all other sums due thereunder, shall, at once and without further notice, become immediately due and payable.

(Compl., Ex. F.) The letter contained a disclosure that stated, in relevant part:

If you are in bankruptcy or received a bankruptcy discharge of this debt, this letter is not an attempt to collect the debt. This notice is being furnished for your information and to ...

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