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Harrington v. Fay Servicing, LLC

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

September 30, 2019

JAMES C. HARRINGTON Plaintiff,
v.
FAY SERVICING, LLC, Defendant.

          MEMORANDUM OPINION AND ORDER

          Honorable Edmond E. Chang, United States District Judge.

         James Harrington brought this action against Fay Servicing, alleging that Fay's debt collection practices violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq., and the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1 et seq.[1] R.1, Compl.[2] Specifically, Harrington alleges that, after he defaulted on his mortgage loan, Fay engaged in harassing and unfair collection tactics by making several unannounced in-person visits to his home. Fay moves to dismiss the complaint for failure to state a claim. Fed.R.Civ.P. 12(b)(6). R. 31, Mot. to Dismiss. For the reasons explained below, the motion to dismiss is denied.

         I. Background

         For purposes of this motion, the Court accepts as true the factual allegations in the Complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Harrington's relationship with Fay began in August 2016. Compl. ¶ 17. That was when Fay acquired the servicing rights to Harrington's mortgage loan, which had gone into default several years earlier. Id. ¶ 13-14; 17.

         Over the course of the next two years, collections representatives from Fay would allegedly make a baker's dozen's worth of unannounced visits to Harrington's home. Compl. ¶¶ 19, 21-23, 25, 27, 29. During each of these visits, the representatives delivered roughly the same version of an unsigned form letter in an envelope addressed to Harrington and marked “Personal and Confidential.” Id. ¶ 19. The letter stated that Harrington's mortgage had recently been transferred to Fay, and that Fay was trying to reach Harrington to discuss his account. Id. ¶ 20. The letter also listed Harrington's options for paying off the mortgage, including repayment plans, modifications, settlements, short sale, and deed in lieu of foreclosure. Id. The letter concluded by asking Harrington to please call today. Id.

         On some of these occasions, Harrington answered the door, while on others, his spouse did. Compl. ¶¶ 19, 22, 35. When Harrington was not available, the Fay representatives allegedly “demanded” to speak to him. Id. ¶¶ 19, 22. Moreover, Harrington's home doubled as his place of business, id. ¶ 25, so the visits to his home also interrupted his work. On one date, for instance, Harrington “was holding a meeting on the front porch of his residence/place of business with his employees” when a Fay representative “appeared once more unannounced.” Id. ¶ 26.

         Here are the dates and approximate times for each alleged visit:

1. August 30, 2016 2. September 2, 2016 at 11:50 a.m.
3. March 11, 2017 at 12.46 p.m.
4. March 14, 2017 at 12.47 p.m.
5. March 18, 2017 at 10:00 a.m.
6. June 7, 2017 at 12:05 p.m.
7. June 10, 2017 at 11:50 a.m.
8. December 23, 2017 at 11:50 a.m.
9. December 30, 2017 at 1:20 p.m.
10. March 9, 2018 at 10:10 a.m.
11. June 11, 2018 at 5:45 p.m.
12. June 17, 2018 at 5:45 p.m.
13. June 23, 2018 at 10:10 a.m.

Compl. ¶¶ 19, 22, 23, 25, 26, 27, 29. Harrington alleges that, during each of these visits, either he or his spouse told the Fay representatives “to cease and desist future communication with” Harrington. Id. ¶¶ 24; 35. According to Harrington, as a result of these “in person face to face visits at his residence, ” he “has suffered emotional distress, annoyance, aggravation, and inconvenience.” Id. ¶ 41.

         II. ...


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