Opinion
Case No. 17 C 4388
12-08-2017
Aleksandra SAJDAK, Plaintiff, v. NEW PENN FINANCIAL LLC, d/b/a Shellpoint Mortgage Servicing, Defendant.
Celetha Chatman, Michael Jacob Wood, Community Lawyers Group, Ltd., Chicago, IL, for Plaintiff. Melissa Elizabeth Manning, Rebekah A. Childers, Akerman LLP, Chicago, IL, for Defendant.
Celetha Chatman, Michael Jacob Wood, Community Lawyers Group, Ltd., Chicago, IL, for Plaintiff.
Melissa Elizabeth Manning, Rebekah A. Childers, Akerman LLP, Chicago, IL, for Defendant.
ORDER
Elaine E. Bucklo, United States District Judge
In this action, plaintiff alleges that defendant violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. ("FDCPA") by sending her a letter with the heading, "Annual Escrow Account Disclosure Statement Account History" after she had filed for bankruptcy. Defendant moves to dismiss the complaint on two grounds: first, that the letter, on its face, is not an attempt to collect a debt, and thus is outside the scope of the FDCPA; and second, that plaintiff never provided written notice requesting that defendant cease communications with her as required to trigger § 1692c(c). I agree on both counts and dismiss the complaint.
For their respective positions regarding whether the letter qualifies as a communication "made in connection with an attempt to collect a debt," both sides rely on Gburek v. Litton Loan Servicing , 614 F.3d 380 (7th Cir. 2010). In Gburek , the Seventh Circuit considered two communications—one from a loan servicer responsible for servicing plaintiff's loan, and another from a third party the loan servicer hired to obtain information from the plaintiff. The communication from the loan servicer requested that the plaintiff, whose mortgage was in default, provide financial and other information for the purposes of discussing "foreclosure alternatives." That letter stated on its face that it was an attempt to collect a debt. The second letter, from the third party, stated that it was contacting the plaintiff on behalf of the loan servicer. The third party stated that it was not a debt collector and that it was not attempting to collect a debt, but it reiterated the loan servicer's request for financial information for the purpose of avoiding foreclosure. Id. at 382–83. The district dismissed the plaintiff's FDCPA claims on the ground that neither of these communications contained an explicit demand for payment.
The Seventh Circuit reversed. The court acknowledged that the FDCPA "does not apply to every communication between a debt collector" but held that "it was a mistake to dismiss the complaint on the sole ground that none of these communications explicitly demanded payment from Gburek," noting that there is no bright-line rule for determining whether a communication was made in connection with the collection of a debt. Id. at 387–88 (original emphasis). The court went on to conclude that the "context and content" of the letters were sufficient to bring the plaintiff's claim within the scope of the FDCPA. Id.
As plaintiff notes, one element of the "context" the court considered in Gburek was that the plaintiff was in default on her mortgage at the time she received the defendant's communications—an element plaintiff shares. Another shared element is the nature of the parties' relationship, which in both cases, arose solely out of the plaintiffs' mortgage. But the similarity between the cases ends there. In particular, the content of the letter plaintiff received in this case, and the purpose that can reasonably be inferred from its language, are materially distinct from the communications at issue Gburek.
Unlike the communications in Gburek, the letter in this case makes no reference to plaintiff's default on her mortgage or to any risk of foreclosure. Although the letter identifies plaintiff's loan by number, it provides no information about the status of the loan, its outstanding balance, or its payment history. See Cmplt., Exh. C at 1. Indeed, the letter is captioned "Annual Escrow Account Disclosure Statement Account History" and states on its face that it is "a statement of actual activity in your escrow account from Dec 2016 to May 2017. Last year's anticipated activity (payments to and from your escrow account) is next to the actual activity."Id. The first page of the letter charts "Payment Information" and "Escrow Balance Calculation," the latter of which reflects an "Anticipated Escrow Balance" in the amount of ($789.08). Id.
The second page of the letter, captioned "Annual Escrow Account Disclosures Statement Projections for Coming Year," states that it is "an estimate of activity in your escrow account during the coming year based on payments anticipated to be made to and from your account." It goes on to chart anticipated payments to and from plaintiff's escrow account and to compare anticipated and required escrow balances. None of the foregoing statements can plausibly be read as an attempt to collect a debt, and plaintiff does not suggest otherwise. Plaintiff argues, however, that an unsophisticated consumer could believe that the letter was seeking to collect a debt based on the next portion of the letter, which compares the escrow account's ending balance of ($789.08) with the required balance of $1,697.39 and explains: "This means you have a shortage of $2,486.47," which "may be collected from you over a period of 12 months or more unless the shortage is less than 1 month's deposit, in which case we have the additional option of requesting payment within 30 days. We have decided to collect it over 12 months." Id.
It is true that the letter identifies escrow amounts that will be due in the future, including amounts calculated to offset a shortage, and indicates that defendant intends to collect future payments over a 12–month period. But the letter does not request payment, does not state or imply that any amount is due immediately, and, unlike the communications in Gburek , does not offer to "settle" any outstanding payments or suggest that collection efforts or foreclosure proceedings are looming. In short, the plain language of the letter is such that even an unsophisticated consumer would understand it not as an attempt to collect a debt but as an explanation of past and anticipated future activity on plaintiff's escrow account. Nor does plaintiff claim that the letter came packaged with a debt collection letter or other materials suggesting an attempt to collect a debt. cf. Ruth v. Triumph P'ships , 577 F.3d 790, 798–99 (7th Cir. 2009) (privacy notice sent in the same envelope as a collection letter was sent "in connection" with an attempt to collect a debt). For these reasons, I conclude that the letter here is comparable to the privacy notice at issue in Carlvin v. Ditech Financial, LLC , 237 F.Supp.3d 753 (N.D. Ill. 2017), which the court concluded fell outside the scope of the FDCPA because, among other reasons, it did not contain any reference to a "debt" or refer to the plaintiff as a "debtor," did not ask the plaintiff to make a payment, and did not identify any amount currently due.
In addition, plaintiff's claim under § 1692c(c) fails because plaintiff does not claim that she received the letter after contacting defendant to request that it cease communications with her. Instead, she alleges that defendant should have known she did not want to be contacted because she was in bankruptcy. But 1692c(c) provides:
If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt....
15 U.S.C. § 1692c(c). Plaintiff does not allege that she notified defendant "in writing" that she wished it to cease further communication with her, and she cites no authority for the theory that defendant's actual or constructive notice of her bankruptcy satisfies the statute's written notice requirement.