United States District Court, N.D. Illinois, Eastern Division
Honorable Edmond E. Chang United States District Judge.
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. 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. 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.
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.
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. 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
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
Id. (emphasis added).
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
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.
Letter. Caprel claims that all three letters-the two HAMP
Solicitation Letters and the ALO Letter-violate the Fair Debt