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Saccameno v. Ocwen Loan Servicing, LLC

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

November 8, 2017

MONETTE E. SACCAMENO, Plaintiff,
v.
OCWEN LOAN SERVICING, LLC, and U.S. BANK NATIONAL ASSOCIATION, as trustee for C-BASS MORTGAGE LOAN ASSET-BACKED CERTIFICATES, Series 2007 RP1, Defendants.

          MEMORANDUM OPINION AND ORDER

          Joan B. Gottschall, United States District Judge.

         Plaintiff Monette Saccameno (“Saccameno”) asserts several causes of action against Ocwen Loan Servicing, LLC (“Ocwen”) and U.S. Bank National Association (“U.S. Bank”) (Ocwen and U.S. Bank together, “defendants”), based on their alleged wrongful loan-servicing and debt-collection activities.[1] The defendants have moved for summary judgment with respect to several counts of Saccameno's complaint. For the reasons discussed below, the motion is granted in part and denied in part.

         I. Background

         In January 2002, Saccameno obtained a mortgage for a home located in Franklin Park, Illinois. Originally issued by Ameriquest Mortgage Company, the loan was later transferred to U.S. Bank. From November 2008 to February 2009, Saccameno failed to make her monthly mortgage payments. As a result, U.S. Bank declared Saccameno to be in default and accelerated the entire balance of the loan. In February 2009, U.S. Bank filed a foreclosure action against Saccameno in the Circuit Court of Cook County, Illinois.

         In December 2009, Saccameno filed a Chapter 13 bankruptcy petition. Under the terms of her Chapter 13 plan, Saccameno would pay the mortgage arrears to the Chapter 13 trustee, and in January 2010, would begin making current monthly payments to U.S. Bank. The plan provided that if Saccameno cured the pre-petition defaults, her mortgage would “be reinstated according to the original terms, extinguishing any right of the mortgagee to recover any amount alleged to have arisen prior to filing of the petition.” Defs.' Ex. 8, Plaintiff's Modified Chapter 13 Plan ¶ (B)(2)(a), ECF No. 133-7.

         It is undisputed that Saccameno made all of the payments in accordance with the plan's terms. In June 2013, the bankruptcy trustee issued a Notice of Final Cure Payment to Ocwen pursuant to Federal Bankruptcy Rule 3002. Ocwen did not file a response or object to the notice. Later that month, the bankruptcy court entered an order of discharge in the bankruptcy proceedings. Although Ocwen received documentation from the PACER system in July 2013 indicating that Saccameno had received a “standard discharge” in the proceedings, Ocwen's bankruptcy department coded the action as “dismissed” rather than as discharged. As a result, the loan was returned to Ocwen's foreclosure department, and in July 2013, Ocwen began sending letters to Saccameno requesting payment of amounts that had in fact been discharged in the bankruptcy proceedings.[2]

         Over the course of the next several months, Saccameno contacted Ocwen on numerous occasions in an attempt to correct the problem. Her efforts were unavailing. In September 2013, Ocwen began returning Saccameno's monthly loan payments because, according to Ocwen's records, they did not cure her default. In all, Ocwen rejected seventeen of Saccameno's payments. Saccameno also claims that, despite her bankruptcy discharge, Ocwen continued to pursue the foreclosure action that had been initiated against her in 2009. Although Ocwen contests this assertion, it is undisputed that Ocwen's miscoding of the discharge “triggered the already pending foreclosure action that had been in placed [sic] prior to Ocwen servicing the loan.” Defs.' L.R. 56.1 Stmt. of Material Facts (“SOF”) ¶ 24, ECF No. 131. Further, in June 2014, one of Ocwen's contract management coordinators “prepared and executed an Affidavit of Amounts Due and Owing for the Cook County Foreclosure matter stating that as of June 2, 2014, Saccameno owed $129, 242.37.” Pl.'s L.R. 56.1(b)(3)(c) Stmt. of Add'l Facts (“SOAF”) ¶ 23, ECF No. 142.

         Saccameno claims that until Ocwen corrected its error-apparently after the filing of this suit-she lived in fear that she would lose her home. As a result, she suffered “emotional distress, depression, mental anguish, [and] anxiety.” 2d Am. Compl. ¶ 54, ECF No. 98. Saccameno also alleges that the emotional distress caused her to lose her job. Her complaint pleads five causes of action against the defendants: (1) violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq.; (2) violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), 810 ILCS 505/1 et seq; (3) violation of the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601 et seq.; (4) breach of fiduciary duty; and (5) violation of a bankruptcy court's discharge injunction. In addition to compensatory relief, Saccameno seeks punitive damages.

         Ocwen moves for summary judgment as to Saccameno's ICFA, breach-of-contract, and breach-of-fiduciary-duty claims. It also seeks summary judgment as to Saccameno's request for punitive damages.

         II. Discussion

         Summary judgment is proper when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). A genuine issue of material fact exists only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         A. ICFA

         Ocwen first seeks summary judgment as to Saccameno's claim under the ICFA. “To state a claim under the ICFA, Plaintiffs must allege five elements: (1) a deceptive act or unfair practice occurred, (2) the defendant intended for plaintiff to rely on the deception, (3) the deception occurred in the course of conduct involving trade or commerce, (4) the plaintiff sustained actual damages, and (5) such damages were proximately caused by the defendant's deception.” Armbrister v. Pushpin Holdings, LLC, 896 F.Supp.2d 746, 754 (N.D. Ill. 2012). Saccameno claims that Ocwen violated the ICFA by, inter alia, charging her unearned fees, attempting to collect and foreclose upon a debt that was not in default; and employing communications designed to confuse her about the status of her loan.

         Ocwen argues that Saccameno's ICFA claim fails because she has produced no evidence that she suffered actual damages as a result of Ocwen's conduct. According to Ocwen, Saccameno's evidence shows only emotional injury, which by itself is not compensable under the ICFA. Rather, it is well settled that the “actual damage element of a private ICFA action requires that the plaintiff suffer ‘actual pecuniary loss.'” Kim v. Carter's Inc., 598 F.3d 362, 365 (7th Cir. 2010) (quoting Mulligan v. QVC, Inc., 888 N.E.2d 1190, 1197 (Ill.App.Ct. 2008)). The court disagrees. As noted above, for example, Saccameno claims that she lost her job due to emotional distress caused by her problems with Ocwen.[3] Saccameno testified that she was so upset and preoccupied with trying to resolve her problems with Ocwen that she could not focus on her work. At the time, Saccameno was employed as the regional manager of dialysis facilities. She recounts carrying all of her Ocwen-related documents in a bag and bringing it to work every day, where she would spend time reviewing the paperwork, asking for advice, and discussing the problems with her coworkers.

         Ocwen argues that Saccameno's narrative is contradicted by deposition testimony in which she stated that her employer never gave her a reason for her termination. See Def.s' Ex. 12, Saccameno Dep. at 172:9-12, ECF No. 133-11 (Q. “Okay. What reason did they give you, this dialysis place? A. They didn't really. It's not working out. Nothing was working out at that point.”). But Saccameno never claimed to have been told that she was being terminated specifically because she was having trouble focusing on work. Her employer's general explanation that things “weren't working out” is entirely compatible with Saccameno's claim that her inability to concentrate on work was the root cause of her termination. Ocwen also places great weight on Saccameno's testimony that she “didn't like being in dialysis.” But nothing in this statement contradicts her claim that she was fired because of her inability to focus on her job. On this record, a jury could reasonably find that Saccameno would have been unable to focus on her work, and would have been terminated, even if she enjoyed her job.

         Further, in addition to her own testimony, Saccameno cites the deposition of Jill Anderson (“Anderson”), one of her coworkers during the period in question. Anderson corroborates Saccameno's testimony that she spent most of her time at work focused on her dispute with Ocwen. See, e.g., Pl.'s Ex. J, Anderson Dep. at 18:21-24, ECF No. 140-10 (“Q. Based on your recollection, do you remember [Saccameno] spending a majority of the time talking to people about these issues? A. Yes.”); see also id. at 17:15-24 (“Q. Do you recall approximately how much time Monette would spend reviewing the documents and making calculations when you were working with her at the dialysis company? A. All the time. Q. What do you mean by ‘all the time'? A. Well, it got to be a daily thing. She would come in and start talking about this situation of making the extra payments and that -- how the mortgage company wasn't taking the extra payments.”); id. at 18:8-13 (A. “So she would go from one office to the next and just, you know, tell the same story over and over. And, you know, I would tell her, You're not getting any work done. You have to stop talking about it. It's going to work itself out. It just seemed kind of crazy to me that it wouldn't get worked out.”). Ocwen argues that Anderson's testimony should be excluded because she has no direct knowledge of the reasons for Saccameno's termination. But Anderson witnessed Saccameno's behavior at work and she is perfectly competent to testify to regarding such matters. See Anderson Dep. at 33:15-21 (“A. I've -- I feel like I'm a witness to her -- kind of, her state of ...


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