United States District Court, N.D. Illinois, Eastern Division
DENNIS A. FOLKERTS and JANET L. FOLKERTS, Plaintiffs,
SETERUS, INC. Defendant.
St. Eve, Judge
ST. EVE UNITED STATES DISTRICT COURT JUDGE
Court grants Defendant Seterus, Inc.'s partial motion to
dismiss brought pursuant to Federal Rule of Civil Procedure
12(b)(6). . Defendant shall answer the remaining claims
by 9/25/17. Mandatory initial disclosures shall be exchanged
by 10/25/17. Written discovery shall be issued by 11/8/17.
1, 2017, Plaintiffs Dennis A. and Janel L Folkerts
(“Plaintiffs”) brought the present Complaint
alleging violations of the Telephone Consumer Protect Act
(“TCPA”), 47 U.S.C. § 227, the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C.
§ 1692, the Fair Credit Reporting Act
(“FCRA”), 15 U.S.C. § 1681, a common law
defamation claim, and a “violation of automatic stay
and discharge injunction” claim. Before the Court
is Defendant's partial motion to dismiss brought pursuant
to Rule 12(b)(6). For the following reasons, the Court grants
Defendant's partial motion to dismiss.
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) challenges the viability of a complaint by arguing
that it fails to state a claim upon which relief may be
granted.” Camasta v. Jos. A. Bank Clothiers,
Inc., 761 F.3d 732, 736 (7th Cir. 2014); see also
Hill v. Serv. Emp. Int'l Union, 850 F.3d 861, 863
(7th Cir. 2017). Under Rule 8(a)(2), a complaint must include
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). Pursuant to the federal pleading standards, a
plaintiff's “factual allegations must be enough to
raise a right to relief above the speculative level.”
Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007). Put differently, a
“complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173
L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at
570). When determining the sufficiency of a complaint under
the plausibility standard, courts must “accept all
well-pleaded facts as true and draw reasonable inferences in
the plaintiffs' favor.” Roberts v. City of
Chicago, 817 F.3d 561, 564 (7th Cir. 2016).
2009, Bank of America, NA. extended a loan to Plaintiffs that
was secured by a mortgage on real property located in
Manteno, Illinois. (R. 1, Compl. ¶¶ 14-15.)
Plaintiff maintains that in July 2015 they filed a voluntary
Chapter 13 petition for bankruptcy protection, case number
15-bk-25468. (Id. ¶ 15.) They assert their
Chapter 13 plan included that their residence - the security
for the Bank of America mortgage - would be surrendered in
full satisfaction of the secured claim. (Id. ¶
16.) Further, Plaintiffs allege that during the term of their
Chapter 13 plan, they defaulted on their mortgage payments
and that thereafter their debt was then transferred or
assigned to Defendant for the purposes of collecting on the
debt. (Id. ¶¶ 16, 17.) On February 22,
2016, the bankruptcy court discharged their debts.
(Id. ¶ 18, Ex. C. Order of Discharge.)
Plaintiffs allege that after the discharge of the debt,
Defendant attempted to collect on the debt. (Id.
¶ 19.) Also, Plaintiffs contend that Defendant continues
to falsely report a foreclosure filing to credit bureaus,
including TransUnion, Experian, and Equifax. (Id.
Plaintiffs voluntarily dismissed their defamation claim as
alleged in Count X, the only remaining issue in this motion
is Defendant's argument that Plaintiffs cannot bring
their claim for the alleged violations of the bankruptcy stay
and bankruptcy discharge injunction in federal court. To
clarify, after “a debtor obtains a discharge under the
Bankruptcy Code, creditors are enjoined from attempting to
collect discharged debts ‘as a personal liability of
the debtor.'” Gagnon v. JPMorgan Chase Bank,
N.A., 563 B.R. 835, 847 (N.D. Ill. 2017) (quoting 11
U.S.C. § 524(a)(2)). After a bankruptcy discharge, the
debtor must file claims for the violation of the automatic
stay and discharge injunction in the bankruptcy court where
the debt was discharged. See Randolph v. IMBS, Inc.,
368 F.3d 726, 728 (7th Cir. 2004); Cox v. Zale Delaware,
Inc., 239 F.3d 910, 916 (7th Cir. 2001). Simply put, the
“Seventh Circuit and district courts have held that a
debtor cannot file suit directly in federal district court to
enforce Section 524(a)(2).” Gagnon, 563 B.R.
at 847; see also Dore v. Five Lakes Agency, Inc.,
No. 14 CV 6515, 2015 WL 4113203, at *2 (N.D. Ill. July 8,
2015). In fact, Plaintiffs have filed a motion for violations
of the automatic stay and discharge injunction against
Defendant in their bankruptcy court case seeking to enforce
the discharge injunction under 11 U.S.C. § 524 - that is
noticed up for September 22, 2017. (15-25468, dkt. 37, 38.)
The Court therefore grants Defendant's motion.
 In their response brief, Plaintiffs
voluntarily dismiss their state law defamation claim against