Saccameno v. Ocwen Loan Servicing, LLC et al

Filing 75

MEMORANDUM Opinion and Order Signed by the Honorable Joan B. Gottschall on 11/19/2015. Mailed notice(mjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MONETTE E. SACCAMENO,
Plaintiff,
v.
OCWEN LOAN SERVICING, LLC, et al.,
Defendants.

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Case No. 15 C 1164
Judge Joan B. Gottschall

MEMORANDUM OPINION AND ORDER
In this Fair Debt Collection Practices Act (“FDCPA”) case, plaintiff Monette Saccameno
raises claims against multiple entities relating to her mortgage loan. With respect to defendant
Potestivo & Associates, she claims violations of multiple sections of the FDCPA based on a
letter that Potestivo sent to her attorney that contained allegedly false representations about
amounts purportedly owed to defendant Ocwen Loan Servicing. Potestivo’s motion to dismiss
Count III of the amended complaint (the only count that is directed at Potestivo) pursuant to Fed.
R. Civ. P. 12(b)(6) is before the court. For the following reasons, the motion is granted.
I. BACKGROUND1
In 2002, plaintiff Monette Saccameno obtained a loan secured by a mortgage on a home
located in Franklin Park, Illinois. After the loan was transferred to U.S. Bank National
Association, as Trustee (a defendant in this case), Saccameno defaulted. In February 2009, U.S.
Bank filed a state court foreclosure action in the Circuit Court of Cook County.

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The court draws the following facts from Saccameno’s amended complaint and accepts
them as true for purposes of the motion to dismiss. See Cincinnati Life Ins. Co. v. Beyrer, 722
F.3d 939, 946 (7th Cir. 2013).

A.

Saccameno’s Bankruptcy Case
In December 2009, Saccameno filed a Chapter 13 bankruptcy petition “to cure all pre-

petition defaults” on the loan. (Am. Compl., Dkt. 40, at ¶ 14.) In her bankruptcy schedules,
Saccameno disclosed that U.S. Bank was a secured creditor. Saccameno subsequently filed a
modified Chapter 13 plan that provided that if she cured the pre-petition defaults “while timely
making all required post[-]petition payments, the mortgage will 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.” (Modified Plan, Dkt. 40-4, at § (B)(2)(a).) The modified
plan also specified that Saccameno would pay the mortgage arrears to U.S. Bank by making
payments to the Chapter 13 trustee but that beginning in January 2010, she would pay U.S. Bank
$1,800 per month directly.
U.S. Bank did not object to its treatment in the modified plan. On February 17, 2010, the
bankruptcy court confirmed the modified plan. On June 27, 2013, the bankruptcy court issued
an order of discharge and the trustee issued a “notice of payment of final mortgage cure.”
B.

Post-Discharge Issues With Saccameno’s Loan
At an unspecified time (presumably while the Chapter 13 case was still pending), Litton

Loan Services for U.S. Bank, the servicer for Saccameno’s loan, “returned several payments
made by [Saccameno] in violation of the Confirmed Chapter 13 plan which were later retendered
[sic].” (Am. Compl., Dkt. 40, at ¶ 27.) In July 2011, defendant Ocwen Loan Servicing started
servicing the loan. Saccameno alleges that Ocwen improperly assessed multiple “fees and

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expenses” to her mortgage and escrow accounts even though she had a positive balance. Ocwen
never objected to the trustee’s “notice of payment of final mortgage cure.”2
According to Saccameno, Ocwen’s demands were baseless because Ocwen was
demanding that she pay amounts that had been discharged in her bankruptcy case. Saccameno
and her attorneys contacted Ocwen repeatedly in writing and by telephone in an unsuccessful
effort resolve the dispute over allegedly missing payments and unpaid fees and expenses. “In
order to try and restart the conversation with Ocwen, [Saccameno] had requested reinstatement
figures to determine as a final attempt at resolution if Ocwen would provide figures that
complied with [Saccameno’s] Chapter 13 Discharge.” (Am. Compl., Dkt. 40, at ¶ 40.)
C.

The Request for Potestivo to Provide a Reinstatement Letter
To obtain the reinstatement figures, David Cohen (Saccameno’s attorney) contacted

Ocwen’s attorneys, Potestivo & Associates. In response to Cohen’s request, Potestivo faxed

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Saccameno alleges that Ocwen’s decision not to object to the “notice of payment of
final mortgage cure” caused her to become “contractually current” with her mortgage payments
as of the date of her discharge. (Am. Compl., Dkt. 40, at ¶ 36.) She further alleges that “[a]ny
alleged post-petition bankruptcy default, which did exist, was discharged along with amounts
claimed pre-petition in the Proof of Claim of US [sic] Bank/Ocwen . . . In essence, as of the Date
of Discharge[,] the Plaintiff (June 27, 2013) was contractually current with Ocwen.” (Id.)
“Allegations that state ‘legal conclusions’ . . .are not entitled to the assumption of truth.”
Firestone Fin. Corp. v. Meyer, 796 F.3d 822, 827 (7th Cir. 2015) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678 (2008)). The court will disregard Saccameno’s allegations about the effect of her
discharge on U.S. Bank and Ocwen, as they are legal conclusions, not facts.

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Cohen a letter containing a reinstatement quote. (Reinstatement Letter, Dkt. 1-10.)3 The letter
begins with a banner stating:
YOU ARE HEREBY NOTIFIED THAT THIS COMMUNICATION IS AN
ATTEMPT TO COLLECT A DEBT, AND ANY INFORMATION
OBTAINED WILL BE USED FOR THAT PURPOSE, THOUGH IT IS
NOT AN ATTEMPT TO COLLECT MONEY FROM ANYONE WHOSE
DEBT HAS BEEN DISCHARGED PURSUANT TO (OR WHO IS UNDER
THE PROTECTION OF) THE BANKRUPTCY LAWS OF THE UNITED
STATES; IN SUCH INSTANCES, IT IS INTENDED SOLEY [sic] FOR
INFORMATIONAL PURPOSES.
(Id., emphasis in original). It then lists the various items that make up the claimed reinstatement
amount and states that if the full amount is not paid, a specified partial payment by February 6,
2015, will halt foreclosure proceedings.
Saccameno alleges that the figures in the reinstatement letter “could not possibly be true”
and asserts that Potestivo sent the quote without confirming that the amounts that Saccameno
alleged owed were correct. (Am. Comp., Dkt. 40, at ¶¶ 42-44.) Although Saccameno alleges
that she wrote both Ocwen and Potestivo about the dispute regarding her loan (id. at ¶ 49), all of
the details regarding the purported contacts relate to contacts with U.S. Bank and Ocwen (id. at
¶¶ 49-54.)
D.

Saccameno’s Allegations Directed at Potestivo
Count III is the only count directed at Potestivo. It contains quotations from the FDCPA

and conclusory assertions that Potestivo violated various provisions of the FDCPA. Saccameno
also alleges that Potestivo “engaged in abusive and oppressive conduct by sending a

3

Saccameno provided the court with a complete courtesy copy of her amended
complaint, including exhibits. However, she did not e-file the exhibits to the amended
complaint. Thus, the court will cite to the e-filed exhibits to the original complaint.
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reinstatement letter that (i) refuses to correct Ocwen’s accounting errors or adequately respond to
[her] repeated disputes over several years with Ocwen that Potestivo was aware of; (ii) allowed
the misapplication and rejection of payments; and (iii) reflects the assessment of illegal fees.”
(Id. at ¶ 88.) Next, she alleges that Potestivo violated the FDCPA because:
[t]he reinstatement letter includes: (i) misrepresentations of the status of the debt;
(ii) attempts to collect illegal fees and costs not authorized by law or the contract;
(iii) misrepresentations of the amounts owed for escrow; (iv) [a declaration that
the loan is] in delinquent or default status; (v) [a threat of] a foreclosure sale, (vi)
[assessment of] illegal foreclosure fees; (vii) [assessment of] escrow overdraft
charges and improper corporate advances, fees, and costs in their dunning letters,
acceleration notices, restatement letters, and payoff letters; (viii) [a report of]
false information and [a statement that the loan was reported as] delinquent to
credit bureaus.
(Id. ¶ 90.)
Finally, Saccameno alleges that Potestivo:
took legal action that cannot legally be taken by not dismissing the foreclosure
case as a result of the Chapter 13 Discharge and subsequently made (1)
misrepresentations of the status of the debt; (ii) attempts to collect illegal fees and
costs not authorized by law or the contract; (iii) misrepresentations of the amounts
owed for escrow; (iv) [declarations that] the loan [was] in delinquent or default
status; (v) [threats of] a foreclosure sale, (vi) [assessments of] illegal foreclosure
fees; and (vii) [assessments of] escrow overdraft charges and improper corporate
advances, fees, and costs in their dunning letters, acceleration notices, restatement
letters, and payoff letters.
(Id. ¶ 92.)
This is Saccameno’s second attempt to articulate her claims against Potestivo. Potestivo
filed a Rule 12(b)(6) motion to dismiss the original complaint. In response, Saccameno filed a
motion for leave to file an amended complaint, explaining that she had “discovered that the facts
as plead [sic] lead to confusion as to what was being alleged against Potestivo” so she desired to

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“seek[] leave to amend the Complaint to incorporate the new facts as to clarify the allegations.”
(Pl.’s Mot. for Leave to File Am. Compl., Dkt. 36, at ¶ 3.)
II. LEGAL STANDARD
To survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must “state a claim
to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A claim satisfies this standard when its factual allegations “raise a
right to relief above the speculative level.” Twombly, 550 U.S. at 555-56. For purposes of a
motion to dismiss, the court takes all facts alleged by the plaintiff as true and draws all
reasonable inferences from those facts in the plaintiff’s favor, although conclusory allegations
that merely recite the elements of a claim are not entitled to this presumption of truth. Virnich v.
Vorwald, 664 F.3d 206, 212 (7th Cir. 2011).
III. DISCUSSION
All of Saccameno’s claims against Potestivo are based on the reinstatement letter that her
attorney asked Potestivo to send. The court will disregard Saccameno’s quotations from the
FDCPA, as well as her assertions that Potestivo violated various provisions of the FDCPA as
these allegations are not enough to survive a motion to dismiss. See Ashcroft, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 555) (“the pleading standard Rule 8 announces does not
require ‘detailed factual allegations,’ but it demands more than an unadorned,
the-defendant-unlawfully-harmed- me accusation” so [a] pleading that offers ‘labels and
conclusions’ or a ‘formulaic recitation of the elements of a cause of action will not do.’”); see
also Virnich, 664 F.3d at 212 (a recitation of the elements of a claim is not entitled to a
presumption of truth).

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With respect to Saccamenos’s remaining allegations, to survive Potestivo’s motion to
dismiss her FDCPA claims based on the letter, Saccameno must assert sufficient facts to support
an inference that: (1) Potestivo is a “debt collector” under the FDCPA, (2) the reinstatement
letter was sent “in connection with the collection of [a] debt,” and (3) Potestivo violated one of
the FDCPA’s substantive provisions. Kabir v. Freedman Anselmo Lindberg LLC, No. 14 C
1131, 2015 WL 4730053, at *2 (N.D. Ill. Aug. 10, 2015) (citing Gburek v. Litton Loan Servicing
LP, 614 F.3d 380, 384 (7th Cir. 2010)).
A careful study of the amended complaint, motion, response, and reply shows that the
parties appear to disagree about the sufficiency of Saccameno’s allegations relating to six issues:
(1) whether the FDCPA reaches Potestivo because it (a) acted as a debt collector and (b)
attempted to collect a debt when it sent the reinstatement letter; (2) whether the information in
the reinstatement letter is actionable because it is inaccurate; (3) whether Potestivo improperly
attempted to collect a debt that had been discharged in bankruptcy;4 (4) whether the letter is
actionable under the “unsophisticated consumer” and “competent lawyer” standards;5 (5)

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This argument appears in multiple iterations, some of which are not clearly articulated.
Specifically, Saccameno contends that (1) U.S. Bank’s failure to respond to the “notice of
payment of final mortgage cure” meant that her loan was current so Potestivo could not legally
attempt to collect the amounts asserted in the reinstatement letter and (2) pursuant to Fed. R.
Bankr. P. 3002.1, she was “contractually current” with her loan as of the date of her bankruptcy
discharge so Potestivo could not try to collect on the loan. Confusingly, Saccameno also argues
that “the Reinstatement Quote is plainly wrong and as these amounts were demanded by
Potestivo to reinstate a loan that was already reinstated by the Chapter 13.” (Pl.’s Resp., Dkt. 64,
at 6.)
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The court has provided its interpretation of Saccameno’s argument. Her description of
the “unsophisticated consumer” versus “competent lawyer” issue is as follows: “Potestivo has
stated in its [motion to dismiss] that the unsophisticated consumer should not apply to its
communications but instead the “competent lawyer” standard should apply. This does change
the fact that party who determines whichever standard is the trier of fact, and since a jury has
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whether the letter violates the FDCPA because it is “abusive and oppressive”;6 and (6) whether
the FDCPA required Potestivio to verify the accuracy of the figures provided by Ocwen before
sending the letter. As discussed below, the court finds that Saccameno’s often conflicting and
conclusory allegations about Potestivo fail to support an inference that the reinstatement letter
was an attempt to collect a debt. As this is a threshold issue that is necessary for all of her
FDCPA claims, it controls the resolution of Posetivo’s motion to dismiss.
A.

Is the Reinstatement Letter Within the Ambit of the FDCPA?
Pursuant to the FDCPA, a “debt” is “any obligation or alleged obligation of a consumer

to pay money arising out of a transaction in which the money, property, insurance, or services
which are the subject of the transaction are primarily for personal, family, or household
purposes, whether or not such obligation has been reduced to judgment.” 15 U.S.C. § 1692a(5).
In turn, a “debt collector” is “any person who uses any instrumentality of interstate commerce or
the mails in any business the principal purpose of which is the collection of any debts, or who
regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be
owed or due another.” 15 U.S.C. § 1692a(6).

been demanded a jury. Although the below statement [from Walker v. National Recovery, Inc.,
200 F.3d 500, 501 (7th Cir. 1999)] was made in regards to an unsophisticated consumer standard
it is equally applicable if the competent lawyer standard is at issues [sic].” (Pl.’s Resp., Dkt. 64,
at 7.)
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Specifically, Saccameno argues that by sending the letter, Potestivo “(i) refuse[d] to
correct Ocwen’s accounting errors or adequately respond to Plaintiff’[s] repeated disputes over
several years with Ocwen that Potestivo was aware of; (ii) allowed the misapplication and
rejection of payments; and (iii) [assessed] illegal fees.” (Pl.’s Resp., Dkt. 64, at 11.) Saccameno
further asserts that “[o]n its face, the letter does not appear to be abusive. However, when
looking into the complete fact pattern, it would become apparent why §1692d was pled in the
Complaint. Accounting errors and been found repeatedly. The errors had not been corrected or
adequately responded to.” (Id.)
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Potestivo asserts that even though it acts as a debt collector in certain instances, the
FDCPA does not cover each and every communication that it sends. This is correct, as
“[c]ommunications from a debt collector must be made in connection with the collection of a
debt to be covered by the FDCPA.” Bonfiglio v. Citifinancial Servicing, LLC, No. 14 C 9254,
2015 WL 5612194, at *5 (N.D. Ill. Sept. 23, 2015) (citing Gburek, 614 F.3d at 384-86 (although
a communication need not explicitly demand payment, it must be “made specifically to induce
the debtor to settle her debt”)).
The Seventh Circuit has not decided whether the FDCPA reaches communications
related to mortgage foreclosures. Kabir, 2015 WL 4730053, at *2. Potestivo points to authority
holding that a mortgage foreclosure action is outside the ambit of the FDCPA because it is an
effort to foreclose on an interest in real property, as opposed to an attempt to collect a debt by
obtaining a money judgment. See, e.g., Glazer v. Chase Home Fin. LLC, 704 F.3d 453, 460 (6th
Cir. 2013) (collecting cases). The amended complaint does not specify whether Ocwen sought
to recover a deficiency judgment in its state court foreclosure action and thus sought to recover a
money judgment. If so, Posetivo’s argument would fail.
In any event, the court is persuaded by Judge Ellis’ recent decision surveying the split in
authority and concluding that the FDCPA reaches actions taken in connection with foreclosure
proceedings because (among other reasons), “[f]inding otherwise ‘would create an enormous
loophole in the [FDCPA] immunizing any debt from coverage if that debt happened to be
secured by a real property interest and foreclosure proceedings were used to collect the debt.”
Kabir, 2015 WL 4730053, at *3 (quoting Wilson v. Draper & Goldberg, P.L.L.C., 443 F.3d 373,

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376 (4th Cir. 2006)). Thus, Saccameno has sufficiently alleged that the FDCPA reaches a
communication relating to a debt secured by real property.
B.

Was Potestivo Trying to Collect a Debt When It Sent the Reinstatement Letter?
The existence of a connection between Potestivo’s reinstatement letter and the state court

mortgage foreclosure proceeding does not necessarily compel the conclusion that Potestivo sent
the letter “in connection with the collection of any debt.” 15 U.S.C. § 1692; see also Preuher v.
Seterus, LLC, No. 14 C 6140, 2014 WL 7005095, at *2 (N.D. Ill. Dec. 11, 2014) (citing Gburek,
614 F.3d at 384-85) (“While [the defendant] does not dispute that it is a debt collector, this
characterization does not require the conclusion that the Hazard Letter was sent in connection
with the collection of a debt.”).
There is no bright line test to determine if a communication was sent in connection with
the collection of a debt. Gburek, 614 F.3d at 384. Thus, the presence of an explicit demand for
payment is not dispositive. Id. Instead, the court must conduct a “commonsense inquiry” by
considering whether a communication contains a demand for payment, “the nature of the parties’
relationship,” and “the purpose and context of the communications.” Id. at 385 (citing Ruth v.
Triumph P’ships, 577 F.3d 790, 799 (7th Cir. 2009)). “In the context of a motion to dismiss,”
the court must determine if the complaint and the communication at issue “sufficiently allege
that the communication was made in connection with the collection of a debt.” Preuher, 2014
WL 7005095, at *2 (citing Gburek, 614 F.3d at 386).
Saccameno’s position, at its heart, appears to be that Ocwen’s foreclosure case against
her is wrongful because she was current with her mortgage as a result of her bankruptcy case.
Saccameno contends that Potestivo—Ocwen’s counsel— wrongfully attempted to force her to

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pay money to Ocwen that she did not owe. The first problem with this argument is that the
reinstatement letter, which was addressed to Saccameno’s attorney and sent at the attorney’s
request, begins with a paragraph in bolded capitals that states:
YOU ARE HEREBY NOTIFIED THAT THIS COMMUNICATION IS AN
ATTEMPT TO COLLECT A DEBT, AND ANY INFORMATION
OBTAINED WILL BE USED FOR THAT PURPOSE, THOUGH IT IS
NOT AN ATTEMPT TO COLLECT MONEY FROM ANYONE WHOSE
DEBT HAS BEEN DISCHARGED PURSUANT TO (OR WHO IS UNDER
THE PROTECTION OF) THE BANKRUPTCY LAWS OF THE UNITED
STATES; IN SUCH INSTANCES, IT IS INTENDED SOLEY [sic] FOR
INFORMATIONAL PURPOSES.
(Reinstatement Letter, Dkt. 1-10, emphasis in original.) This paragraph addresses Saccameno’s
precise argument, as she claims that her debt to Ocwen was “discharged pursuant to . . . the
bankruptcy laws of the United States.” (Id.) In that situation, the letter explicitly states that “it is
intended soley [sic] for informational purposes.” (Id.)
But even if the letter can be read as a demand for payment, Saccameno is not out of the
woods. Despite the disclaimer in the reinstatement letter, she stands by her contention that
Potestivo was actively trying to collect a debt, not provide information. She asks, “[w]hat other
purpose could it have? Clearly, the purpose was for Posestivo to collect the amount listed on the
Reinstatement Quote. To suggest that is not debt collection is to deny what the purpose of the
Reinstatement quote was. The [amended complaint] alleges that is debt collection in paragraphs
80-95. That is a fact in this proceeding.” (Pl.’s Resp., Dkt. 64, at 15.)
There are multiple problems with this contention. Saccameno herself has answered the
question she posed about why Potestivo sent the letter – “to try and restart the conversation with
Ocwen, [Saccameno] had requested reinstatement figures to determine as a final attempt at
resolution if Ocwen would provide figures that complied with [Saccameno’s] Chapter 13
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Discharge.” (Am. Compl., Dkt. 40, at ¶ 40.) A plaintiff “can plead [her]self out of court by
including factual allegations that establish that [she] is not entitled to relief as a matter of law.”
O’Gorman v. City of Chicago, 777 F.3d 885, 889 (7th Cir. 2015). Saccameno is bound by her
allegation that her attorney asked Potestivo for the letter to help Saccameno deal with Ocwen.
The allegation that Saccameno asked Potestivo to send the communication that forms the
basis of her claims against Potestivo is critical. As detailed in the amended complaint, Potestivo
did not decide to send the letter in a vacuum; it did so because Saccameno requested the very
letter that she now claims is dunning for her own purposes. These circumstances are clearly
germane to the court’s “commonsense” assessment of the “nature of the parties’ relationship”
and the “purpose and context of the communication[].” See Gburek, 614 F.3d at 384.
Second, Saccameno contends that paragraphs 80-95 of her amended complaint contain
factual allegations supporting an inference that Potestivo’s letter was an attempt to collect a debt.
Three of these paragraphs quote the FDCPA. (Am. Compl., Dkt. 40, at ¶¶ 85-87.) As discussed
above, unadorned quotations from a federal statute do not state a claim for which relief may be
granted. See Iqbal, 556 U.S. at 678 (“Although for the purposes of a motion to dismiss [courts]
must take all of the factual allegations in the complaint as true, [they] ‘are not bound to accept as
true a legal conclusion couched as a factual allegation.’”) (quoting Twombly, 550 U.S. at 555);
see also Laba v. Chicago Transit Auth., No. 14 C 4091, 2014 WL 5822336, at *3 (N.D. Ill. Nov.
10, 2014) (“threadbare recitation of the elements of a Section 1983 cause of action . . . are
insufficient to withstand a motion to dismiss under Rule 12(b)(6)”).
The rest of the paragraphs cited by Saccameno are completely inconsistent with the only
specific non-conclusory factual allegation in the complaint about Potestivo: that it sent the

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reinstatement letter at the request of Saccameno’s counsel so Saccameno could “try and restart
the conversation with Ocwen” and convince Ocwen to “provide figures that complied with [her]
Chapter 13 Discharge.” (Am. Compl., Dkt. 40, at ¶ 40.) A plaintiff may assert conflicting legal
theories. See, e.g., Ziccarelli v. Phillips, No. 12 CV 9602, 2013 WL 5387864, at *5 (N.D. Ill.
Sept. 25, 2013) (citing Alper v. Altheimer & Gray, 257 F.3d 680, 687 (7th Cir. 2001)). A
plaintiff may also “plead inconsistent facts” if she is “legitimately in doubt about the facts in
question.” Carlson v. Nielsen, No. 13 CV 5207, 2014 WL 4771669, at *3 (N.D. Ill. Sept. 24,
2014). These rules do not help Saccameno as the so-called facts supporting her FDCPA claims
against Potestivo bear no discernable relationship to her allegations about the chain of events
that resulted in the issuance of the reinstatement letter.
For example, in Count III, Saccameno alleges that Potestivo violated the FDCPA by
“refus[ing] to correct Ocwen’s accounting errors,” “declar[ing] the loan in delinquent or default
status,” “report[ing] the loan delinquent to credit bureaus,” and “threatening a foreclosure sale.”
(Am. Compl., Dkt. 40, at ¶¶ 88, 90-91.) How could Potestivo have refused to correct Ocwen’s
alleged errors when it purportedly sent the letter to Saccameno at her request so she could
continue to try to resolve her dispute directly with Ocwen? How could the reinstatement letter
be a declaration that Saccameno had defaulted on her loan or a threat to file a foreclosure lawsuit
when Ocwen had already advised Saccameno that she was in default, threatened to file a
foreclosure action, and eventually (the timing of events is unclear) filed suit? How could the
letter to Saccameno’s attorney in response to his request to provide a reinstatement letter
summarizing the amount that Ocwen claimed that Saccameno owed be read as a communication

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to a credit bureau to declare Saccameno’s loan as delinquent? These examples are illustrative,
but Saccameno’s remaining “factual allegations” are equally questionable.
Elsewhere in the complaint, Saccameno alleges that her counsel “made repeated requests
via Qualified Written Requests to Ocwen and Potestivo, to recognize [her] bankruptcy payments
and to apply post-petition to post-discharge months. Ocwen has ignored, criticized, and refused
to recognize Plaintiff’s requests as valid, including her requests for accurate reinstatement
figures.” (Am. Compl., Dkt. 40, at ¶ 49.) A complaint must “give enough details about the
subject-matter of the case to present a story that holds together.” Swanson v. Citibank, N.A., 614
F.3d 400, 404 (7th Cir. 2010). Accepting Saccameno’s complaint at face value, the contact
between Saccameno’s counsel and Potestivo appears to have consisted of a request to provide a
reinstatement letter. A request for a letter to be used when negotiating with Ocwen is not a
complaint to Potestivo about the status of Saccameno’s loan. Moreover, Saccameno does not
explain how the FDCPA makes Potestivo liable for Ocwen’s alleged failure to “recognize [her]
requests as valid.”
It is unclear how Saccameno could be “legitimately in doubt” about these facts and thus
have a basis to submit an internally inconsistent pleading. See Carlson v. Nielsen, 2014 WL
4771669, at *3. To the extent that the amended complaint was intended to cure what she
described as “confusion as to what was being alleged against Potestivo,” it does not do so. (Pl.’s
Mot. for Leave to File Am. Compl., Dkt. 36, at ¶ 3.) Saccameno’s current factual allegations
supporting her FDCPA claims against Potestivo, against the backdrop of her allegation that her
attorney asked Potestivo to send the reinstatement letter, are so disjointed and conclusory that
they fail to “raise a right to relief above the speculative level.” See Twombly, 550 U.S. at

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555-56. Thus, the court will not delve into the specific elements necessary to plead colorable
claims based on the cited sections of the FDCPA.
In the interests of justice, the court will give Saccameno another chance to amend her
FDCPA claims against Potestivo. Counsel must consider whether there is a colorable factual
basis underlying each FDCPA claim, and any amended complaint must contain factual
allegations that sufficiently support an inference that Potestivo is liable under the specified
sections of the FDCPA. Sweeping assertions of wrongdoing and conclusory claims of
malfeasance are not enough to satisfy Rule 12(b)(6), are inconsistent with counsel’s Rule 11
obligations, and are an inappropriate use of the court’s and Potestivo’s resources.
IV. CONCLUSION
For the reasons stated above, Potestivo’s motion to dismiss the amended complaint [49]
is granted. The court is contemporaneously issuing an order denying a motion to withdraw the
reference filed by Ocwen and U.S. Bank and setting a status on December 11, 2015, at 9:30 a.m.
to discuss scheduling in light of the bankruptcy proceedings. At the status hearing, the parties
should address whether the filing of a second amended complaint against Potestivo should be
stayed pending the outcome of the bankruptcy proceedings. The court also notes that Saccameno
failed to e-file the exhibits to the amended complaint [40], although she provided the court with
a complete courtesy copy. She must promptly e-file the exhibits. To avoid confusion, she
should e-file the entire amended complaint so the amended complaint and its exhibits are
together under a single number on the docket.

Date: November 19, 2015

/s/
Joan B. Gottschall
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United States District Judge

/cc

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