United States District Court, N.D. Illinois
MEMORANDUM AND ORDER
JOHNSON COLEMAN JUDGE
Mark Risher (“Risher”), alleges that Defendant,
Nationstar Mortgage, LLC (“Nationstar”) violated
the Fair Credit Reporting Act (“FCRA”), 15 U.S.C.
§ 1681; the Bankruptcy Discharge Injunction under 11
U.S.C. § 524; and the Illinois Consumer Fraud and
Deceptive Practices Act (“ICFA”), 815 ILCS 505/1
et seq. Defendant now moves this Court to dismiss
Plaintiff's Complaint for failure to state a claim
pursuant to Federal Rule of Civil Procedure 12(b)(6). For the
reasons set forth below, Defendant's Motion to Dismiss is
following facts are taken as true for the purpose of ruling
on this motion. On July 20, 2009, Risher obtained a mortgage
from Bank of America, N.A. in the amount of $156, 695
(“Loan”). The Loan was secured by Risher's
primary residence at 22557 S. Carrie Ave, Channahon, IL 60410
(“Property”). Subsequently, the Loan was
transferred to Nationstar Mortgage, LLC.
September 30, 2015, Risher properly filed a Chapter 7
Bankruptcy petition in the United States Bankruptcy Court in
the Northern District of Illinois. See In re Risher,
No. 15-33520 (Bankr. N.D.Ill. Sept. 30, 2015). He listed the
Loan and Nationstar, as the secured creditor for the Loan, in
his bankruptcy petition. Risher included a Statement of
Intention with his petition, stating that he wanted to
“retain and maintain” the Property after the
Chapter 7 proceedings. This choice is commonly known as a
“ride-through” option. By law, the only ways for
Risher to have retained the listed Property following the
bankruptcy discharge would have been to redeem it by paying
Nationstar a lump sum, or to reaffirm the Property by
entering into an agreement with Nationstar, where both the
personal liability and debt would remain intact after the
discharge was entered. Risher did not redeem or reaffirm the
Loan with Nationstar.
October 3, 2015, the Bankruptcy Court sent notice to
Nationstar indicating the details of the creditors'
meeting and other deadlines. On October 29, 2015, the Chapter
7 Trustee held a meeting with Risher's creditors, but
Nationstar did not appear. On December 29, 2015, the
Bankruptcy Court entered an Order of Discharge
(“Discharge”) in Risher's bankruptcy case.
The Discharge stated that, “a discharge removes the
debtors' personal liability for debts owed before the
debtors' bankruptcy case was filed.” There was no
indication that the Loan was excluded from the Discharge. The
Discharge also directed that no creditor may attempt to
collect from a debtor directly. Once a discharge has been
entered, the Federal Rules of Bankruptcy Procedure requires
the clerk of the court to mail a copy of the final order of
discharge to the listed creditors. Fed.R.Bankr.P. 4004(g). On
January 4, 2016, the bankruptcy case was closed and the
Trustee was terminated.
the Discharge, from April 2016 through November 2016,
Nationstar sent Risher collection letters each month.
Additionally, Nationstar placed 37 pre-recorded phone calls
to Risher's landline phone and no less than five phone
calls to his cellular telephone between July 2016 and the
filing of this action. When Risher first received the calls
in July of 2016, he advised Nationstar that he had filed
Chapter 7 bankruptcy, received a bankruptcy discharge, and
that they should not be contacting him personally. Nationstar
denied having any record of the Plaintiff's Discharge.
this time, Risher pulled his credit reports from Experian. He
discovered his Nationstar account still showed the Loan as
being in default. It also showed a high balance, a high past
due amount, and a monthly payment amount due. The report did
not indicate Risher's Discharge. So, on August 24, 2016,
he sent Experian a dispute letter to inform it that the Loan
had been discharged in bankruptcy court, and he directed a
reinvestigation into the reporting of his Nationstar account.
He enclosed a copy of his Discharge and requested that this
letter be sent to Nationstar with all other relevant
information. Risher alleges that Nationstar received a copy
of his dispute letter, Discharge and all relevant
information, from Experian, within five days of Experian
receiving Risher's dispute letter. Nationstar has offered
no evidence to the contrary.
Experian received the dispute latter, it reinvestigated
Risher's Nationstar account. On September 15, 2016,
Experian sent him an updated consumer disclosure, reflecting
Risher's monthly payments of varying amounts to
Nationstar for the Loan from July 2015 through June 2016.
Additionally, on the same date Experian sent Risher the
updated consumer disclosure, Risher learned that Nationstar
had accessed his Experian consumer report on April 2, 2016
without his permission. Nationstar accessed the report after
Risher's discharge had been entered and his personal
liability to Nationstar terminated, but before he requested
that Defendant reinvestigate. Defendants now move to dismiss
Plaintiff's complaint for the infractions alleged above.
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) tests the legal sufficiency of the complaint, not
the merits of the allegations. Gardunio v. Town of
Cicero, 674 F.Supp.2d 976, 983 (N.D. Ill. 2009) (Dow,
J.). Put differently, “[t]he issue involved is not
whether the claimant is entitled to prevail, but whether the
claimant is entitled to offer evidence in support of the
claims.” Id. (citation omitted). When ruling
on a motion to dismiss, a court must accept all well-pleaded
factual allegations in the complaint as true and draw all
reasonable inferences in a plaintiff's favor. Park v.
Ind. Univ. Sch. of Dentistry, 692 F.3d 828, 830 (7th
Cir. 2012). The allegations must contain sufficient factual
material to raise a plausible right to relief. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 569 n. 14, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim has facial
plausibility when the plaintiff pleads factual content that
allows a court to draw the reasonable inference that a
defendant is liable for the misconduct alleged. Id.;
see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129
S.Ct. 1937, 173 L.Ed.2d 868 (2009).
Order of Discharge
threshold issue, Defendant argues that Plaintiff has not
plausibly alleged that the Loan was ...