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Thakkar v. Ocwen Loan Servicing, LLC

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

September 6, 2017



          John J. Tharp, Jr. United States District Judge.

         Plaintiff Nirav Thakkar has sued his mortgage servicer and several companies associated with so-called “property preservation services” after his home was twice broken into and ransacked by agents carrying out orders to “secure” the property for foreclosure proceedings, despite the fact that Thakkar was current on the mortgage and was occupying the home. Thakkar asserts a variety of state law claims[1] against the various defendants, two of which (BaXol Properties, LLC, and Altisource Portfolio Solutions, S.A.) have moved to dismiss. In addition, several of the property preservation services companies have filed third party complaints against Green Group Corporation, the company that did the “on the ground” work. Green Group has moved for a more definite statement of these claims. For the reasons stated below, BaXol's motion to dismiss is denied, Altisource Portfolio Solutions' motion is granted without prejudice, and Green Group's motion is denied.

         BACKGROUND [2]

         The facts alleged in this case are relatively simple, but disturbing. Plaintiff Nirav Thakkar alleges that the defendants twice broke into his home, changed the locks, and took his personal property, all in preparation for a mortgage foreclosure proceeding that was entirely unwarranted. Thakkar is an Illinois resident who lived from 2007 to January 2014 at 311 Danbury Drive in Naperville, Illinois. Id. at ¶ 15. Thakkar's uncle bought the property in 2006 using a mortgage with the intention that Thakkar would live there. Id. at ¶ 63. Thakkar “leased” the home from his uncle from 2007 until December 2013 by making all payments on the home's mortgage and paying the utilities. Id. at ¶ 64. On December 23, 2013, Thakkar purchased the property and remains the legal owner today.[3] Id. at ¶ 65.

         From 2006 to January 2013, the mortgage on Thakkar's home was serviced by GMAC. Compl. ¶ 67. On February 7, 2013, defendant Ocwen Loan Servicing, LLC (“Ocwen”) notified Thakkar that Ocwen would be servicing the mortgage effective February 16, 2013. Id. at ¶ 69. At the time, Thakkar had made all the required monthly mortgage payments without incident and was current on the mortgage. Id. at ¶¶ 67, 70. Immediately after the transfer to Ocwen, however, Ocwen began sending “statement and demand letters” regarding “late” payments. Id. at ¶ 71. Ocwen also began billing Thakkar for “property preservation services” assessed by defendant Altisource.[4] Id. at ¶ 72.

         Throughout 2013, Thakkar “regularly” called Ocwen to dispute the charges and the allegations that he was late or in default to no avail. Compl. ¶ 73. Ocwen, however, claimed it did not have a record of his past payments to GMAC and insisted he was in default. Id. Thakkar sent Ocwen proof of his past mortgage payments, but Ocwen refused to correct the account. Id. at ¶ 74. In September 2013, Ocwen declared the mortgage more than 45 days delinquent and referred the home for “property preservation.” Id. at ¶ 77.

         This is where the chain of other defendants comes in. The property preservation request was automatically sent to Altisource through an electronic system.[5] Compl. ¶ 52. On September 5, 2013, Altisource issued a work order to defendant Laudan Properties, LLC (“Laudan”) for an “exterior inspection and occupancy determination.” Id. at ¶ 78. Ocwen did not tell Thakkar about this work order or ask whether he was living in the property. Id. at ¶ 79. On September 14, 2013, Laudan completed the inspection and reported that although the utility meters were active, it considered the property vacant. Id. at ¶ 80. When this determination was added to the electronic system, a “series of additional pre-foreclosure work orders were automatically assigned to” defendant BaXol Properties, LLC (“BaXol”). Id. at ¶ 82. These work orders included changing the locks, shutting off utilities, inspecting the interior, and removing property. Id. No party sought a court order. Id. BaXol was “contractually required to facilitate completion of the work orders” and assigned the orders to Green Group Corporation (“Green Group”). Id. at ¶ 83-84.

         On October 7 or 8, 2013, Green Group performed the work it had been hired to do - it broke in and entered the property, changed the locks, conducted an interior inspection, shut off utilities, and removed Thakkar's property. Compl. ¶ 88. Green Group took a number of pictures to document its work, which were uploaded to the electronic system. Id. at ¶ 89-90. The pictures showed many rooms were neat and well-maintained and at the end the rooms had been “ransacked and rummaged through.” Id. at ¶ 89. Thakkar returned home to find his personal property “thrown throughout the house” and called the police. Id. at ¶ 91. He reported over $20, 000 in missing property to the police, including “cash, financial documents, watches, electronics, sports jerseys, and a memory card with Thakkar's family photographs” as well as other personal effects. Id. at ¶ 92. Thakkar's prescription medication was also taken, forcing him to be without medication for “several weeks, ” while food, cleaning supplies, and toiletries had also been taken. Id. at ¶ 93. The water and water heater had also been turned off. Id. at ¶ 94. Thakkar stayed with his parents for several days afterwards because he did not know who had ransacked his home and feared for his safety. Id. at ¶ 95.

         Several days later, Thakkar found a “posting” outside his home listing a phone number for Altisource, which he called and was directed to Ocwen. Compl. ¶ 96. Ocwen confirmed over the phone that it was responsible for the break-in and that it was a mistake. Id. at ¶ 97. Ocwen offered to teach Thakkar how to turn his utilities back on or send Altisource to turn them on. Id. Thakkar opted for the later, and about a week later Altisource sent a vendor to turn on the water and water heater. Id. at ¶ 98. Thakkar discovered the water heater had been broken and antifreeze had been poured into the pipes and plumbing, necessitating several hundred dollars in repair costs. Id. Thakkar demanded his damaged property be repaired and the removed property be returned, but Ocwen and Altisource both refused. Id. at ¶ 99.

         Even though Thakkar had paid off the mortgage on the property in December 2013 and Ocwen had released the mortgage with county officials, Altisource (on behalf of Ocwen) issued a work order to Laudan again for an inspection and vacancy determination in January 2014. Compl. ¶ 105. Laudan again identified the property as vacant, BaXol was again assigned an identical roster of tasks, which it assigned to Green Group. Id.. at ¶ 106-8. Green Group again forcibly changed the locks, entered the property, inspected it, and removed Thakkar's personal property. Id. at ¶ 109. Thakkar again called the police, and reported approximately $75, 000 in lost property, ranging from sports memorabilia to furniture. Id. at ¶ 111. The next day, Ocwen told Thakkar how to access the new keys and told him to call Altisource. Id. at ¶ 113. Altisource falsely denied having any record of the property. Id. at ¶ 114. Thakkar demanded that Ocwen and Altisource repair and return his property to no avail. Id. at ¶ 115. Thakkar became so fearful for his safety after the second break-in that he moved out and began leasing the property to renters. Id. at ¶ 116. At no point in the process did any party obtain Thakkar's consent, initiate foreclosure proceedings, or obtain a court order authorizing any of the actions taken. Id. at ¶ 117.

         Thakkar sued Ocwen and Altisource in Illinois state court in 2015. The defendants removed to federal court on the basis of diversity jurisdiction and, following discovery, Thakkar filed an amended complaint naming further defendants. The amended complaint contains counts for violation of the Illinois Consumer Fraud and Deceptive Business Practice Act, negligence, trespass to property and chattels, conversion, invasion of privacy, and civil conspiracy. Several defendants filed third party complaints against Green Group for contribution under the Illinois Joint Tortfeasor Contribution Act. BaXol and Altisource Portfolio Solutions, S.A., have moved to dismiss Thakkar's amended complaint. Green Group has moved for a more definite statement as to the third party complaints of Ocwen and Altisource Solutions, Inc.


         Before the Court are three motions: BaXol's motion to dismiss Thakkar's first amended complaint for failure to state a claim, Altisource Portfolio Solutions' motion to quash service or dismiss Thakkar's complaint for lack of personal jurisdiction or failure to state a claim, and Green Group's motion for a more definite statement as to the third party complaints of Altisource Solutions, Inc. and Ocwen.

         As discussed above, the Court assumes the truth of the facts alleged in Thakkar's complaint unless they are contradicted by evidence (such as affidavits) submitted by the defendant. Deb v. Sirva, Inc., 832 F.3d 800, 808-09 (7th Cir. 2016). To survive a motion to dismiss, a plaintiff must “state a claim for relief that is legally sound and plausible on its face.” Id. at 810. This involves pleading enough facts that it raises the prospect of a right to relief above the speculative level. Smith v. Dart, 803 F.3d 304, 309 (7th Cir. 2015).

         I. BaXol's Motion to Dismiss

         BaXol has moved to dismiss the entirety of the complaint against it. BaXol's primary argument (although it varies in specifics from count to count) is that Thakkar cannot bring his claims against BaXol because BaXol did not have any relationship with Thakkar and never interacted with the physical or real property at issue. Thakkar counters that BaXol ordered its agent (Green Group) to do the actions alleged in the complaint, rendering it liable for those actions even if BaXol never physically ...

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