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Caprel v. Specialized Loan Servicing, Inc.

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

May 4, 2017

ROBERT CAPREL, Plaintiff,
v.
SPECIALIZED LOAN SERVICING, INC. Defendant.

          ORDER

          Honorable Edmond E. Chang United States District Judge.

         Robert Caprel brought this suit against Specialized Loan Servicing, Inc. (which calls itself SLS) for violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq.[1] Caprel bases his claims on three letters allegedly sent by SLS in connection with his mortgage debt. Two of the letters, sent to Caprel's lawyer in Fall 2015, supposedly contained false and misleading representations under § 1692e. R. 33, Third Am. Compl.[2] The third letter, dated January 2016, was sent to Caprel directly. Id. Caprel contends that this letter ran afoul of § 1692c's prohibition against direct communication to a consumer represented by an attorney. Id. SLS now moves to dismiss Caprel's Third Amended Complaint under Federal Rules of Civil Procedure 12(b)(1) for lack of standing and 12(b)(6) for failure to state a claim. R. 36, Mot. to Dismiss. For the reasons stated below, the motion to dismiss is denied.

         I. Background

         For purposes of this motion, the Court accepts as true the allegations in the Third 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. Third Am. Compl. ¶¶ 4, 11. After he defaulted, Caprel filed for bankruptcy in October 2014; by February 2015, he had discharged the mortgage debt. Id. ¶¶ 13, 14.

         But several months after the debt had been discharged, Caprel's lawyer received a pair of letters from SLS, the debt collector that had acquired and was servicing Caprel's mortgage loan (together, call them the “HAMP Solicitation Letters”). Third Am. Compl. ¶¶ 11, 16, 19; R. 36-1, Mot. to Dismiss at Exh. A, 10/8/15 HAMP Solicitation Letter; R. 36-2, Mot. to Dismiss at Exh. B, 11/8/15 HAMP Solicitation Letter.[3] Each letter contained a “Frequently Asked Questions” section that addressed general inquiries about mortgage loan defaults, HAMP loan modifications, and home foreclosures. 10/8/15 HAMP Solicitation Letter at 15; 11/8/15 HAMP Solicitation Letter at 3. One of the “FAQs” asserted that mortgage defaults would be reported to credit reporting agencies:

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.

Id. (emphasis added).

         In December 2015, Caprel incorporated the HAMP Solicitation Letters into this FDCPA lawsuit against SLS. R. 13, Second Am. Compl. But even after this lawsuit was filed, Caprel continued to receive communications about the discharged mortgage. On January 15, 2016-three months after Caprel filed this lawsuit-the law firm Anselmo Lindberg Oliver, LLC (“ALO, ” for short) sent a letter demanding payment of the outstanding mortgage debt (call it the “ALO Letter”). Third Am. Compl. ¶ 25, Exh. A, ALO Letter. Unlike the HAMP Solicitation Letters, the ALO Letter was sent directly to Caprel, not to his lawyer. The subject line of the ALO Letter referenced the mortgaged property, as well as SLS's role as servicing agent:

Re: 1751 Sussex Walk G, Hoffman Estates, Illinois 60169 Specialized Loan Servicing LLC, as servicing agent for Wells Fargo Bank, N.A. as Trustee for the MASTR Asset Back Securities Trust 2007-NCW Mortgage Pass-Through Certificate Series 2007-NCW

         ALO Letter. The body of the Letter stated that its purpose was to collect a debt, identified SLS as the creditor, and presented ALO as an agent of the mortgage holder:

1. This is an attempt to collect a debt and any information obtained will be used for that purpose.
2. This office is a debt collector and represents the holder of a Mortgage and Note on the above captioned property.
3. Specialized Loan Servicing LLC, as servicing agent for Wells Fargo Bank, N.A. as Trustee for the MASTR Asset Backed Securities Trust 2007-NCW Mortgage Pass-Through Certificates Series 2007-NCW is the creditor to whom the debt is owed.

         ALO Letter. Caprel claims that all three letters-the two HAMP Solicitation Letters and the ALO Letter-violate the Fair Debt Collection ...


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