United States District Court, N.D. Illinois, Eastern Division
Geoffrey L. Gephart and Janelle M. Gephart, Plaintiffs,
The Wirbicki Law Group, LLC, Defendant.
S. SHAH U.S. DISTRICT JUDGE.
motion to dismiss, , is granted. The complaint is
dismissed without prejudice. Plaintiffs have leave to file an
amended complaint by June 23, 2017. If an amended complaint
is not filed, this dismissal will convert to a dismissal with
prejudice and final judgment will be entered.
Geoffrey and Janelle Gephart, bring this action against
defendant, The Wirbicki Law Group, LLC, for violating the
Fair Debt Collection Practices Act, 15 U.S.C. § 1692
et seq. Defendant moves to dismiss the complaint.
motion to dismiss under Rule 12(b)(6) challenges the
sufficiency of the complaint, not its merits. Fed.R.Civ.P.
12(b)(6); see also Gibson v. City of Chicago, 910
F.2d 1510, 1520 (7th Cir. 1990). When the complaint fails to
state a claim upon which relief may be granted, a motion to
dismiss should be granted. Fed.R.Civ.P. 12(b)(6); see
also Avila v. CitiMortgage, Inc., 801 F.3d 777, 781 (7th
Cir. 2015). To survive a motion to dismiss, the complaint
must provide the defendant with fair notice of a claim's
basis and it must be facially plausible. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009); see also Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678.
may only consider “allegations set forth in the
complaint itself, documents that are attached to the
complaint, documents that are central to the complaint and
are referred to in it, and information that is properly
subject to judicial notice.” Williamson v.
Curran, 714 F.3d 432, 436 (7th Cir. 2013). Filings and
decisions in cases that are related to this action may be
judicially noticed. Fed.R.Evid. 201(b); see White v.
Keely, 814 F.3d 883, 886 n.2 (7th Cir. 2016) (public
court documents may be considered with a Rule 12(b)(6)
motion). In reviewing the pleadings and any related
documents, courts must construe all factual allegations as
true and draw all reasonable inferences in the
plaintiffs' favor. Iqbal, 556 U.S. at 678;
Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir.
2011), as amended (Jan. 3, 2012). Legal conclusions
and conclusory allegations do not receive that same
Gepharts executed a mortgage to secure a promissory note for
$236, 600.00.  ¶ 7. Within a few years, the Gepharts
had defaulted on that mortgage loan. Id. ¶ 8.
In December 2015, the Gepharts filed for bankruptcy.
Id. ¶ 9; see also In re Geoffrey Laurence
Gephart a/k/a Geoffrey L. Gephart and Janelle Marie Gephart
a/k/a Janelle M. Gephart, No. 15-BK-42604 (Bankr.
related bankruptcy case, defendant's client, Ocwen Loan
Servicing, LLC, moved for relief from the automatic stay
under 11 U.S.C. § 362(d). [9-1] at 1-3. That motion for
relief stated, in relevant part: “Should the Automatic
Stay be lifted and/or set aside by Order of this Court or if
this case is dismissed or if the debtor obtains a discharge
and a foreclosure action is commenced or recommended, said
foreclosure action will be conducted in the name of Ocwen
Loan Servicing, LLC (the noteholder).” Id. at
2, ¶ 7. On April 14, 2016, Judge Baer granted that
relief and ordered: “Ocwen Loan Servicing, LLC and its
principals, agents, successors, and/or assigns are granted
relief from the automatic stay provisions of 11 U.S.C.
section 362(a) by modifying said stay to permit them to
pursue all non-bankruptcy remedies to the property commonly
known as 36 Woodridge Lane, Streamwood, IL 60107.”
[9-2] at 1. The order granting relief from the automatic stay
was “immediately enforce[able].” Id.
Ocwen filed a complaint to foreclose the Gepharts'
mortgage in the Chancery Division of the Circuit Court of
Cook County, Illinois. [13-2] at 2; see also Ocwen Loan
Servicing, LLC v. Gepharts et al., No. 16-CH-09208 (Ch.
Ct. 2016). Judge Simko entered a Judgment of Foreclosure on
November 21, 2016, holding: “[Ocwen] is entitled to the
relief prayed for in the complaint including foreclosure of
said mortgage upon the real estate described
therein.” [13-2] at 5.
December 8, 2016, defendant sent the Gepharts correspondence,
which stated, in relevant part: “This office is
attempting to collect a debt for Ocwen Loan Servicing, LLC.
[. . .] As of the date of this letter, you owe $228,
893.30.”  ¶ 11. The Gepharts allege that
defendant violated the United States Bankruptcy Code by
falsely representing in the correspondence that the mortgage
loan was due, when in fact, it could not be collected at that
time pursuant to 11 U.S.C. § 362(a)(6). Id.
¶¶ 19 (citing 15 U.S.C. § 1692e(2)), 22
(citing 15 U.S.C. § 1692e(10)), 25 (citing 15 U.S.C.
moves to dismiss the complaint for three reasons: (1) the
pleadings are deficient; (2) the district court is not the
proper forum for this lawsuit; and (3) no violation of §