Heyer v. Pierce and Associates, P.C.
MEMORANDUM Opinion and Order signed by the Honorable Sheila M. Finnegan on 6/2/2017. Mailed notice(sxw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
JON K. HEYER,
PIERCE & ASSOCIATES, P.C.,
No. 14 C 854
Magistrate Judge Finnegan
MEMORANDUM OPINION AND ORDER
On January 9, 2017, the Court issued a Memorandum Opinion and Order granting
partial summary judgment to Defendant Pierce & Associates, P.C. (“Pierce”) as to Plaintiff
Jon K. Heyer’s claim for relief under Sections 1692e, e(5) and e(10) of the Fair Debt
Collection Practices Act (“FDCPA”). 15 U.S.C. § 1692 et seq. In that same order, the
Court also granted partial summary judgment in favor of Plaintiff on his claim under
Section 1692e(11) of the statute. At the next scheduled status hearing on February 8,
2017, Plaintiff requested leave to file a motion to reconsider within 21 days, which he then
filed on March 1, 2017. In that motion, which he brings pursuant to Federal Rule of Civil
Procedure 59(e) or 60(b), Plaintiff seeks reconsideration of the finding that Pierce did not
violate Sections 1692e, e(5) or e(10), arguing that the Court made manifest errors of fact
and law that warrant judgment in his favor. For the reasons set forth here, the motion is
Standard of Review
The Federal Rules of Civil Procedure do not specifically provide for motions to
“reconsider.” How courts treat such motions turns (in part) on whether the subject of the
motion is an interlocutory order or a final judgment. Plaintiff asks the Court to evaluate
his motion using the standards associated with challenging final judgments under Rule
59(e) or Rule 60(b). Laborers’ Pension Fund v. Safe Environmental Corp., No. 13 C 180,
2013 WL 3200070, at *1 (N.D. Ill. June 24, 2013) (citing Talano v. Northwestern Med.
Faculty Found., Inc., 273 F.3d 757, 760 n.1 (7th Cir. 2001)); Stephens v. City of Lawrence,
No. 1:13-CV-1503-TWP-DML, 2015 WL 8773447, at *1 (S.D. Ind. Dec. 14, 2015). Both
of those Rules are subject to time limitations.
Rule 59(e) requires that motions to alter or amend a judgment be filed within 28
days of the judgment. FED. R. CIV. P. 59(e). Motions seeking relief from judgment under
Rule 60(b) need only be filed within a “reasonable time,” but they must be based on
“mistake, excusable neglect, newly discovered evidence, or fraud.” Kiswani v. Phoenix
Sec. Agency, Inc., 584 F.3d 741, 742-43 (7th Cir. 2009); Scott v. Bender, 948 F. Supp.
2d 859, 864 (N.D. Ill. 2013). In addition, Rule 60(b) is an “extraordinary remedy and is
granted only in exceptional circumstances.” Karraker v. Rent-A-Center, Inc., 411 F.3d
831, 837 (7th Cir. 2005). See also Scott, 948 F. Supp. 2d at 865 (Rule 60(b) “was
designed to address mistakes attributable to special circumstances, not to address
erroneous applications of law.”) (emphasis in original).
Plaintiff did not file his motion within the 28-day time period required by Rule 59(e),
and he fails to identify any exceptional circumstances warranting the extraordinary relief
contemplated by Rule 60(b).
Nevertheless, Plaintiff is not actually seeking
reconsideration of a final judgment here.
Since the Court’s order granting partial
summary judgment did not dispose of all claims and parties, it amounted to an
interlocutory order, and courts have inherent authority under Rule 54(b) to reconsider
interlocutory orders “at any time before entering a final judgment.” Wiegel v. Stork Craft
Mfg., Inc., 891 F. Supp. 2d 941, 944 (N.D. Ill. 2012).1 In this jurisdiction, Rule 54(b) is
governed by a “manifest error” standard of review. Id. See also Armada (Singapore) Pte
Ltd. v. Amcol Int’l Corp., No. 13 C 3455, 2017 WL 1862836, at *1 (N.D. Ill. May 9, 2017)
(reconsideration of interlocutory orders under Rule 54(b) is “appropriate only to correct
manifest errors of law or fact.”) (internal quotations omitted).
The Seventh Circuit has long cautioned that appropriate issues for reconsideration
“rarely arise and the motion to reconsider should be equally rare.” Bank of Waunakee v.
Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990). This is because the
court’s orders are “not intended as mere first drafts, subject to revision and
reconsideration at a litigant’s pleasure.” Geraty v. Village of Antioch, No. 09 C 6992, 2015
WL 127917, at *3 (N.D. Ill. Jan. 8, 2015) (quoting Quaker Alloy Casting Co. v. Gulfco
Indus., Inc., 123 F.R.D. 282, 288 (N.D. Ill. 1988)). Motions to reconsider “serve a limited
function: to correct manifest errors of law or fact or to present newly discovered evidence.”
Not surprisingly, this Court prefers to consider motions to reconsider promptly after the
issuance of the challenged order rather than almost two months later as happened here and in at
least two other similar cases filed by Mr. Kasalo. See Washington v. Portfolio Recovery Assocs.,
LLC, 14 C 3854 (partial summary judgment order issued on 9/29/2016; at next status on
10/19/2016, Plaintiff sought leave to file a motion to reconsider on future date); Paz v. Portfolio
Recovery Assocs., LLC, 14 C 9751 (partial summary judgment order issued on 4/14/2016; at next
status on 5/10/2016 (to set trial date), Plaintiff sought leave to file a motion to reconsider on future
date). To avoid such delay, the Court will set specific deadlines for motions to reconsider in future
Patrick v. City of Chicago, 103 F. Supp. 3d 907, 911-12 (N.D. Ill. 2015) (quoting
Conditioned Ocular Enhancement, Inc. v. Bonaventura, 458 F. Supp. 2d 704, 707 (N.D.
Ill. 2006)). Manifest errors occur “where the Court has patently misunderstood a party, or
has made a decision outside the adversarial issues presented to the Court by the parties,
or has made an error not of reasoning but of apprehension.” Bank of Waunakee, 906
F.2d at 1191.
A motion to reconsider “is not an appropriate forum for rehashing previously
rejected arguments or arguing matters that could have been heard during the pendency
of the previous motion.” Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d
1264, 1269-70 (7th Cir. 1996). A party seeking reconsideration “bears a heavy burden,”
Patrick, 103 F. Supp. 3d at 912, and the decision whether to grant a motion to reconsider
“is a matter squarely within the Court’s discretion.” Darvosh v. Lewis, No. 13 C 4727,
2015 WL 5445411, at *3 (N.D. Ill. Sept. 11, 2015) (citing Caisse Nationale de Credit
Agricole, 90 F.3d at 1270).
Before turning to the alleged errors and bases for reconsideration, the Court briefly
reviews the underlying memorandum opinion. Plaintiff defaulted on a home mortgage
obligation to Bank of America, NA (“BANA”). BANA (through a subsidiary) retained the
law firm of Pierce & Associates to bring a foreclosure action. Heyer v. Pierce & Assocs.,
P.C., No. 14 C 854, 2017 WL 75739, at *1 (N.D. Ill. Jan. 9, 2017). After obtaining a
judgment against Plaintiff, BANA began working with him on a modification to his loan.
On March 15, 2012, BANA approved Plaintiff for a trial loan modification requiring that he
timely make all trial period payments and “meet all of the eligibility requirements of your
modification program.” Plaintiff “accepted the offer and made the required trial period
payments in April, May and June 2012.” Id. A few months later, in January 2013, Fannie
Mae (the entity providing the financing for the loan modification) approved a permanent
modification of Plaintiff’s loan. There was a problem, however, because BANA believed
there was a judgment encumbering Plaintiff’s property. Id. at *2. BANA informed Pierce
that until the judgment was cleared, and Plaintiff provided clear title stamped and
validated from the county recorder’s office as required by Fannie Mae, it would not be
executing the permanent modification. Id.
Plaintiff denied that there was any lien on his property and called Pierce on March
7, 2013 to explain that he thought the judgment in question was against a totally different
person, John C. Heyer. He sent Pierce a copy of a Memorandum of Judgment that was
entered against Robin Naser on April 7, 2005, in a case where John C. Heyer also
appears in the caption as a named defendant. Id. Pierce forwarded the information to
BANA, but on March 18, 2013, the bank instructed Pierce to proceed with a sale of
Plaintiff’s property. BANA reiterated the “OK” to proceed in April 2013, at which time
Pierce set a sale date of August 29, 2013. Id. at *3.
On August 7, 2013, Pierce mailed Plaintiff (and then filed with the foreclosure
court) a “Notice of Sale Pursuant to Judgment of Foreclosure Under Illinois Mortgage
Foreclosure Act.” Id. Pierce received another “OK” to proceed with the sale from BANA
on August 14, 2013, and on August 15, 2013, BANA provided “written certification . . .
that . . . there is no reason to delay the scheduled sale.” A week later, however, BANA
instructed Pierce to postpone the sale, and on August 30, 2013, BANA requested that
Pierce cancel the sale entirely, which Pierce did. Id. at *4. On November 19, 2013, BANA
sent Plaintiff a letter stating that he had successfully completed the trial modification and
had been approved for a permanent loan modification. At BANA’s direction, Pierce
voluntarily dismissed the foreclosure case against Plaintiff in February 2014. Id.
Plaintiff filed suit alleging that the August 7, 2013 Notice of Sale was false and
misleading in violation of the FDCPA because it: (1) threatened to sell his property at a
time when that could not legally occur as prohibited by Section 1692e(5), and so was
generally deceptive under Sections 1692e and e(10); and (2) failed to identify Pierce as
a debt collector as required by Section 1692e(11). On January 9, 2017, the Court granted
partial summary judgment in favor of Pierce on the first set of claims.2 Id. at *11. The
Court rejected Plaintiff’s theory that the Notice of Sale threatened an action that was
legally impossible under Section 1692e(5), and so misleading under Section 1692e(10),
because a sale would have constituted “a breach by BANA of a contract with Plaintiff.”
Id. at *8. As the Court explained, the contract in question could not have been the
November 19, 2013 permanent loan modification because it did not exist when Pierce
sent the Notice of Sale months earlier on August 7, 2013. Id. at *9 (the focus must be on
“the facts as they existed on the day the Notice was sent.”).
The Court held that the March 15, 2012 trial loan modification also did not support
Plaintiff’s FDCPA claim even though BANA ultimately accepted that he had satisfied the
required terms. In the Court’s view,
it is not enough for Plaintiff to prove that sale of the property would have
given rise to a successful breach of contract claim against BANA in order to
establish an FDCPA violation against Pierce. Where, as here, Plaintiff and
BANA had a dispute regarding eligibility for a permanent loan modification,
Pierce’s liability for sending the Notice of Sale cannot hinge on whether a
judge or jury is eventually persuaded that BANA would have been in breach
Plaintiff does not challenge the Court’s grant of partial summary judgment in his favor on
the claim brought pursuant to Section 1692e(11).
of contract had it proceeded with the foreclosure sale. Instead, the focus
must be on whether, on the day the Notice was sent by Pierce, it was legally
impossible for the Property to be sold at auction in the Foreclosure Case
such that Pierce made a false statement.
Id. at *10. Since BANA had a valid judgment against Plaintiff, and both BANA and Pierce
intended to sell the property as of August 7, 2013, the threat of sale was not legally
Id. (“This Court declines to expand liability under Section 1692e(5) by
construing that statute to mean that an action ‘cannot legally be taken’ if it can be taken
but doing so may give rise to a separate cause of action for breach of contract and
damages.”) (emphasis in original). For similar reasons, the Court also was not persuaded
that “a reasonable consumer who knew the bank was refusing to sign off on a permanent
modification would be deceived by the Notice.” Id. at *11.
Alleged Errors of Fact
Plaintiff begins by identifying what he claims are factual errors requiring that the
decision against him be reversed. (Doc. 102, a 2-6). He first disputes the Court’s
observation in a footnote that “[n]either party has produced a copy of the judgment cited
by BANA or any other information about it.” Heyer, 2017 WL 75739, at *2 n.2. In support,
Plaintiff notes that the Memorandum of Judgment he sent to Pierce (which concerned
John C. Heyer) showed a judgment amount of $78,885.07, (Doc. 73-3, at 82), which he
says “corresponds exactly” to the judgment referenced in a January 7, 2013 collection
note from Pierce stating: “The title report was showing a judgment against the borrower
from (Central Food Service for $78,885.07). Its [sic] showing it was recorded in 2005 and
we cant [sic] move forward unless it is clear.” (Doc. 74-6, Ex. O, at 50, Pierce0049; Doc.
102, at 2). Plaintiff claims this constitutes evidence that the lien BANA was relying on to
deny him a permanent modification is the one against John C. Heyer. (Doc. 102, at 2).
He thus argues that the Court erred in stating it was “unable to find as a matter of law that
there was no lien encumbering the Property.” Heyer, 2017 WL 75739, at *8.
As a preliminary matter, it must be noted that Plaintiff never directed the Court to
language found in the January 7, 2013 collection note in his summary judgment briefs.
Though the language does appear in paragraph 38 of his Local Rule 56.1 Statement of
Material Facts, (Doc. 73-5, at 8), Plaintiff never quoted the text he now relies upon.
Indeed, the single reference to paragraph 38 is as part of a string cite aimed at supporting
the general proposition that “BANA made a loan modification offer to Plaintiff that
Defendant was aware of.” (Doc. 87, at 2). As the Seventh Circuit has observed, “[j]udges
are not ‘like pigs, hunting for truffles buried in briefs.’ . . . Rather, it is ‘[a]n advocate’s job
. . . to make it easy for the court to rule in his client’s favor.’” Hoosier v. Greenwood
Hospitality Mgmt. LLC, 32 F. Supp. 3d 966, 972 (N.D. Ill. 2014) (quoting United States v.
Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) and Dal Pozzo v. Basic Machinery Co., 463
F.3d 609, 613 (7th Cir. 2006)).
Moreover, Plaintiff’s argument ignores the Court’s finding that “even assuming the
record established the absence of a lien, or established that BANA mistakenly was relying
on the Memorandum of Judgment described above as the basis for withholding the
permanent modification, this would not change the outcome here.” Heyer, 2017 WL
75739, at *8 (emphasis in original). The Court went on to explain in great detail why
Pierce did not violate the FDCPA merely because the threat to sell Plaintiff’s property, if
carried out, would have given rise to a separate breach of contract claim against BANA.
Id. at *9-10. Plaintiff may disagree with the analysis, but the Court will not revisit it here.
Nor will the Court consider anew Plaintiff’s related assertions, addressed in detail in the
previous opinion, that: he was eligible for a permanent modification when Pierce sent the
Notice of Sale on August 7, 2013; BANA’s belief to the contrary was incorrect; and the
Notice therefore amounted to a breach of contract redressable under the FDCPA. (Doc.
102, at 3, 4). See Caisse Nationale de Credit Agricole, 90 F.3d at 1269 (a motion to
reconsider “is not an appropriate forum for rehashing previously rejected arguments.”).
For similar reasons, there is no merit to Plaintiff’s contention that the Court
committed manifest error by misconstruing his statement that the March 15, 2012 trial
modification “ended on June of 2012.” (Doc. 102, at 5; Doc. 73-5 ¶ 22). The Court found
it inconsistent for Plaintiff to claim the agreement had “ended” in June 2012 but could still
be the basis for his theory that BANA would be in breach of that agreement if it sold his
property months later in August 2013, and that Pierce therefore violated the FDCPA by
threatening to do so. Heyer, 2017 WL 75739, at *9. Plaintiff objects that paragraph 22
“merely states the date upon which Plaintiff completed the trial modification successfully
[and] does not suggest that the agreement was not in effect.” (Doc. 102, at 5). Putting
aside that Plaintiff’s paragraph is poorly crafted, the Court proceeded to explain why the
breach of contract theory of liability failed in any event. Heyer, 2017 WL 75739, at *9-10.
Plaintiff disagrees with the Court’s reasoning, but that is not a basis for granting a motion
to reconsider. See In re Weinhold, 393 B.R. 623, 638 (Bankr. E.D. Wis. 2008) (motions
to reconsider “are not appropriate to simply revisit old arguments.”).
Plaintiff next challenges an observation the Court made regarding the scope of
discovery. The Court found it significant that Plaintiff had filed a separate lawsuit against
BANA alleging (in part) that the bank “was in breach of the agreement to provide the
promised loan modification,” which he settled in May 2014. Heyer, 2017 WL 75739, at *4
n.4. In the Court’s view, if Plaintiff had persisted in his breach of contract claim against
BANA, discovery likely would have focused on such issues as “the eligibility requirements
for the permanent loan modification, the details of the ‘lien,’ and whether BANA was
entitled under the agreement to insist that Plaintiff provide evidence of clean title . . .” Id.
at *10. For reasons already stated, the Court will not revisit Plaintiff’s claim that “he was
in fact eligible” for the permanent modification. (Doc. 102, at 3); Caisse Nationale de
Credit Agricole, 90 F.3d at 1269. Plaintiff also insists that he had no need to provide clear
title as demonstrated by the fact that he ultimately secured a permanent modification
without it. (Doc. 102, at 3-4). That BANA ultimately decided in November 2013 to accept
that Plaintiff’s title was clear based only on his representation, however, does not
establish that Plaintiff therefore had proof of clear title as of August 7, 2013, much less
that the sale of his property was legally impossible or that the Notice of Sale was false or
misleading in violation of the FDCPA.
To summarize, Plaintiff has not identified any manifest errors of fact supporting
reconsideration of the Court’s decision to grant summary judgment in favor of Pierce on
his claims under Sections 1692e, e(5) and e(10). The motion to reconsider on that basis
Alleged Errors of Law
Plaintiff maintains that the Court should still grant his motion to reconsider based
on manifest errors of law. He first argues that the Court should “determine here and now
in this case, based on the facts presented, whether selling the Property would have
violated the agreement between BANA and Plaintiff.” (Doc. 102, at 4). In other words,
Plaintiff wants the Court to find that BANA committed breach of contract, and that Pierce
therefore violated the FDCPA by threatening to sell his property. The cases Plaintiff relies
on do not appear in his summary judgment briefs and merely set forth some general
requirements for a binding contract. (Id. at 5-6) (citing Calo, Inc. v. AMF Pinspotters, Inc.,
31 Ill. App. 2d 2, 9, 176 N.E.2d 1, 5 (1st Dist. 1961) (“Acceptance of an offer is an
expression of assent to the terms thereof.”); Moore v. Lewis, 51 Ill. App. 3d 388, 392, 366
N.E.2d 594, 599 (1st Dist. 1977) (“[A]n offer does not ripen into a contract until it is
The problem for Plaintiff is that this is not a breach of contract case and BANA is
not a party. Plaintiff cites no authority for the proposition that a judge or jury hearing an
FDCPA case either can or should effectively decide a breach of contract claim by a
plaintiff against a non-party, and (if a breach is found) use that finding to conclude that
the defendant’s action was “legally impossible” so violated the FDCPA.
unpersuasive is Plaintiff’s assertion that Pierce can itself be liable for breach of a contract
between Plaintiff and BANA. (Doc. 102, at 5) (citing Amelco Elec. Co. v. Arcole Midwest
Corp., 40 Ill. App. 3d 118, 351 N.E.2d 349 (1st Dist. 1976)). The Amelco Elec. Co. court
stated that “a party named in the contract may by his acts and conduct become bound by
its provisions even though he has not signed it.” Id. at 124, 351 N.E.2d at 354 (emphasis
added). Pierce is neither named in, nor a party to, the loan modification agreements. In
fact, Pierce had no knowledge of the March 15, 2012 agreement at all until Plaintiff told
him about it in June 2012. Heyer, 2017 WL 75739, at *2 (as of June 2012, Pierce had
“no record of a loan modification.”).
Plaintiff next objects that the Court improperly concluded that he could only prevail
on his FDCPA claim by showing that the sale of the property was legally impossible under
Section 1692e(5), while ignoring that Pierce could also be liable under Section 1692e
generally, or under Section 1692e(10). (Doc. 102, at 7). Section 1692e prohibits the use
of “false, deceptive, or misleading representations or means in connection with the
collection of any debt,” while Section 1692e(10) proscribes “[t]he use of any false
representation or deceptive means to collect or attempt to collect any debt . . .” 15 U.S.C.
§ 1692e, e(10). Plaintiff argues that even if the threatened sale of his property was not
legally impossible, it still violated the FDCPA by attempting to collect money “where there
[was] no contractual basis” to do so. (Doc. 102, at 8).
This argument is premised on Section 1692f(1), which proscribes the use of unfair
or unconscionable means to collect or attempt to collect “any amount . . . unless such
amount is expressly authorized by the agreement creating the debt.”
15 U.S.C. §
1692f(1). Plaintiff interprets this provision to mean that “a breach of an agreement, such
as the collection of an amount of a debt that is unsupported by an agreement governing
the debt, violates the FDCPA.” (Doc. 102, at 8). He then cites a string of cases that
purportedly support this proposition. Unfortunately for Plaintiff, he concedes that he never
pled a violation of Section 1692f(1), so this Court had no occasion to consider the
contours of any such claim, or interpret that provision of the statute. (Id.). Plaintiff likewise
made no reference to Section 1692f(1) in his summary judgment briefs.3
Instead, Plaintiff waited until the oral argument and then stated in conclusory
fashion that Section 1692f(1) is “instructive” on his Section 1692e claim because it shows
that “if something is not allowed to go forward contractually, then that violates the law.”
The First Amended Complaint alleged a violation of Section 1692f(6), (Doc. 8), but it was
not part of the summary judgment briefing and Plaintiff affirmatively waived that claim during oral
argument on October 11, 2016. (Tr. of 10/11/16 hearing).
(Tr. of 10/11/16 hearing). According to Plaintiff, “almost always when you find a violation
of Section 1692f(1) you’ll find a violation of 1692e.” (Id.). The only case Plaintiff cited
was Acosta v. Credit Bureau of Napa County, No. 14 C 8198, 2015 WL 1943244 (N.D.
Ill. Apr. 29, 2015), where the defendant credit bureau sought to collect on a credit card
debt and sent the plaintiff a letter offering several payment options, one of which was
“‘Pay via Credit Card. ($14.95 Chase Receivables processing fee where applicable).’”
Id. at *1. The plaintiff alleged that the letter violated the FDCPA by “expressly or tacitly
misrepresent[ing] that the $14.95 credit card processing fee could lawfully be charged.”
In declining to dismiss the Section 1692f(1) claim, the court noted that processing
fees are only improper under that provision if they result in the debt collector recovering
additional compensation. They do not violate the statute if they constitute a “pass-through
fee” such as where “a credit card company . . . charges the debt collector $14.95 to
process credit card payments and, in turn, the debt collector charges debtors the same
amount if they pay by credit card.” Id. at *2. Since the record did not yet show whether
the processing fee at issue was a pass-through fee, dismissal was not appropriate. Id. at
*3. The court also denied the motion to dismiss the Section 1692e claims, reasoning that
“[i]f the debt collection letter violates Section 1692f(1) by representing that the processing
fee is permissible, then Defendant also would be in violation of Section 1692e.” Id. at *4.
Here, this Court had no reason to determine whether Pierce’s actions violated
Section 1692f(1) since that was never part of the case. Plaintiff’s suggestion that the
Court should have done so anyway, and then used that determination as a basis for
finding a violation of Section 1692e, is entirely specious. Moreover, it is not clear how a
case involving credit card processing fees bears on Pierce’s liability for sending a notice
to sell property at a time when it both intended for this to happen, and had a valid judgment
in hand allowing it to do so. A reasonable consumer in Plaintiff’s position, who knew that
BANA was refusing to sign off on a permanent modification because it believed (even if
incorrectly) that there was a lien against his property, would not be deceived by the Notice
of Sale, and so it is not false or misleading under Section 1692e. See Lox v. CDA, Ltd.,
689 F.3d 818, 822 (7th Cir. 2012) (“The unsophisticated consumer may be ‘uninformed,
naïve, [and] trusting,’ . . . but is not a dimwit, has ‘rudimentary knowledge about the
financial world,’ and is ‘capable of making basic logical deductions and inferences.’”). 4
Plaintiff finally argues that the Court erred in concluding that there was no violation
of Section 1692e(5) because BANA had authorized Pierce to conduct a sale as of the
August 7, 2013 notice date. Specifically, Plaintiff claims that BANA only gave Pierce the
“OK” to proceed to sale on August 14, 2013, or seven days after it sent the Notice of Sale.
(Doc. 102, at 10-11). In support, Plaintiff cites an October 11, 2016 email in which the
Court asked Pierce to clarify the timeline when the file was on hold for “loss mitigation.”
(Doc. 102-1, at 5). The Court asked “[w]here in the record does it show the 4/2013 hold
was lifted, aside from the 8/14/13 OK to proceed with sale.” (Id.).
Based on this
communication, Plaintiff concludes that the Court “recognized” that Pierce did not have
The Court declines to consider Plaintiff’s additional Section 1692f(1) cases that were never
cited to the Court or analyzed in any way. (Doc. 102, at 8-9). See also Lopez v. Newell
Rubbermaid, No. 09 C 5551, 2011 WL 2292324, at *2 (N.D. Ill. June 3, 2011) (citing McCoy v.
Maytag Corp., 495 F.3d 515, 525 (7th Cir. 2007)) (“[C]ursory and undeveloped arguments are
waived.”). One case, Rehman v. Pierce & Assocs., P.C., No. 16 C 5178, 2017 WL 131560 (N.D.
Ill. Jan. 13, 2017), was issued after this Court’s opinion, but it is distinguishable in any event. Id.
at *1, 4 (denying motion to dismiss Section 1692f(1) claim where the plaintiffs alleged that Pierce
filed a foreclosure case against them during the pendency of a grace period, where the bank had
given them 30 days to seek housing counseling).
an authorization to proceed with the sale in August 2013. (Doc. 102, at 10-11). That is
Pierce’s October 19, 2016 response to the Court’s email set forth in detail the file’s
hold history. (Doc. 102-1, at 2). Further review of the collection notes by this Court then
made clear to the Court that BANA gave Pierce an “OK” to proceed with the sale of
Plaintiff’s property in April 2013, and on May 8, 2013, Pierce set a sale date of August 29,
2013. (Doc. 74-6, Ex. O, at 45, Pierce0044). The April 2013 “OK” was never withdrawn,
though the file was placed on a FEMA hold on May 17, 2013. (Id.). On June 21, 2013,
Pierce entered a collection note stating “file on hold per [BANA] for FEMA hold; do not
proceed to judgment without confirming that file is no longer on a FEMA hold.” (Id. at 44,
Plaintiff now maintains that the FEMA hold (apparently as an alternative to the
nonexistent loss mitigation hold) acted as a bar to Pierce selling his property. He offers
the following rationale. The FEMA hold prohibited Pierce from proceeding to judgment,
and “by effecting the Sale [of Plaintiff’s property] Pierce would in fact be proceeding to
judgment.” (Doc. 102, at 11) (emphasis in original). While the Circuit Court had long ago
entered a judgment of foreclosure and sale against him on November 15, 2011, he posits
that this judgment was not “final” because “it is the order confirming the sale, rather than
the judgment of foreclosure, that operates as the final and appealable order, and thus the
final judgment, in a foreclosure case.” (Id.) (citing JP Morgan Chase Bank v. Fankhauser,
383 Ill. App. 3d 254, 260, 890 N.E.2d 592, 599 (2d Dist. 2008)). In making this argument,
Plaintiff is essentially attempting to re-write the collection note and turn a proscription
against proceeding to “judgment” into a bar against proceeding to “final judgment.” In
Plaintiff’s view, “[a]ny other construction would make the entry regarding the FEMA hold
. . . nonsensical.” (Id.).
This Court disagrees. Pierce’s corporate representative, Brian Merfeld, testified at
his deposition that the FEMA hold was merely a general, system-wide hold due to
rainstorms in the area. (Doc. 74-4, Ex. K, at 19, Merfeld Dep., at 63, 65; Tr. of 10/11/16
hearing). As a result, it is not unreasonable that the language would appear in all files
relating to property in the affected area, including Plaintiff’s, even if that property had not
sustained any damage from the rainstorms, or BANA already had a judgment in hand.
Notably, Plaintiff never asked BANA’s corporate representative to explain the scope of
the FEMA hold as it pertained to his file.
Merfeld also confirmed that given BANA’s existing judgment of foreclosure, Pierce
viewed Plaintiff’s case as being in the “postjudgment” stage, rendering the prohibition
against proceeding to “judgment” irrelevant. (Id. at 19, 20, Merfeld Dep., at 65, 68).
Plaintiff produced no evidence to the contrary, or any authority for the proposition that the
term judgment in the collection notes actually meant “final” judgment. The Court thus
finds no merit to Plaintiff’s assertion that Pierce was not authorized to sell his property as
of August 7, 2013 due to the FEMA hold. As a result, the Court has no need to address
Plaintiff’s argument (once again supported by cases that were never mentioned during
the course of summary judgment briefing or oral argument) that Pierce threatened to take
an action “that cannot legally be taken” in violation of Section 1692e(5) given that “Pierce
was simply not authorized, at the time of the mailing, to proceed to sale or judgment as a
sales hold and judgment hold were in effect.” (Doc. 102, at 12-15).
None of Plaintiff’s arguments demonstrate that the Court made manifest errors of
law, and his motion to reconsider on that basis is denied.
For the reasons stated above, Plaintiff’s Motion to Reconsider (Doc. 102) is denied.
Dated: June 2, 2017
United States Magistrate Judge
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