Balogh v. Law Office of Ira T. Nevel LLC et al
MEMORANDUM Opinion and Order signed by the Honorable Edmond E. Chang. For the reasons stated in the Opinion, the Ocwen and Deutsche motion to dismiss 13 is granted as to the federal law claims. The Nevel motion to dismiss 20 is terminated withou t prejudice in light of the anticipated relinquishment of supplemental jurisdiction. But before entering a dismissal with prejudice and a final judgment, the Court will give Balogh until 12/12/2017, to move for leave to amend the complaint (and attac h a proposed amended complaint). It does not seem likely that Balogh can fix the problems with the RESPA and TILA claims, but ordinarily a plaintiff should be given a chance to amend the complaint. If no motion is filed by that date, then the Court will enter the dismissal with prejudice on the federal claims and relinquish the state claims. The status hearing of 12/19/2017 remains in place. Emailed notice(slb, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
LAWRENCE J. BALOGH,
DEUTSCHE BANK NATIONAL TRUST
COMPANY, OCWEN LOAN SERVICING,
LAW OFFICES OF IRA T. NEVEL,
No. 17 CV 862
Judge Edmond E. Chang
MEMORANDUM OPINION AND ORDER
Plaintiff Lawrence Balogh filed this action against Deutsche Bank, Ocwen
Servicing, and the Law Offices of Ira Nevel, alleging a variety of federal and state
claims, in connection with Deutsche Bank’s foreclosure action brought against
Balogh in Illinois State Court. R. 1, Compl.1 In August 2016, Deutsche Bank
received a Judgment of Foreclosure against Balogh in the Circuit Court of Cook
County. R. 14, Def. Deutsche’s Br., Exh. 2. Balogh alleges a variety of federal and
state law claims: violations of the Real Estate Settlement Procedures Act (RESPA),
12 C.F.R. § 1024.36(d); the Truth in Lending Act (TILA), 15 U.S.C. § 1635; the
Illinois Consumer Fraud Act (ICFA), 815 ILCS 505/2); and a conspiracy to commit
fraud.2 Now, Defendants move to dismiss all claims, arguing that (1) there is no
to the docket are referred to with an “R.” followed by the entry number
and, if appropriate, a page or paragraph number.
2This Court has subject matter jurisdiction over the federal law claims under 28
U.S.C. § 1331, and supplemental jurisdiction over the state law claims under 28 U.S.C.
§ 1367, because they form part of the same case or controversy as the federal claims.
subject matter jurisdiction under the Rooker-Feldman doctrine; and (2) even if there
is jurisdiction, the allegations do not state a claim. Def. Deutsche Mot. Dismiss
¶¶ 3-43; Def. Nevel’s Br. at 1. For the reasons below, the motion to dismiss the
federal law claims is granted, and the Court relinquishes supplemental jurisdiction
over the state law claims.
For the purpose of deciding this motion, the Court accepts the allegations in
the Complaint as true. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In May 2005,
Balogh took out an adjustable-rate mortgage from IndyMac Bank, FSB to buy his
Brookfield, Illinois home. Compl. ¶ 14. In July 2008, IndyMac Bank failed and
closed, and the Federal Deposit Insurance Corporation (FDIC) was appointed as the
receiver. Id. ¶ 17. In June 2012, the Law Offices of Ira T. Nevel prepared paperwork
assigning and transferring Balogh’s mortgage to Deutsche Bank. Compl. ¶ 22. Nevel
attested that the Mortgage Electronic Registration Systems (MERS) assigned the
note to Deutsche Bank in 2005, and that assignment paperwork was filed in the
Cook County Recorder’s office. Compl. ¶ 56. Because Nevel’s office was not
incorporated until 2008, Balogh alleges that a valid assignment is impossible. Id.
Ocwen Loan Servicing and Deutsche Bank jointly move for a motion to
dismiss, and the briefing details the bases for each Defendant. For simplicity, the Court will
refer to the briefing, R. 14 in the record, as Def. Deutsche’s Br.
Meanwhile, Balogh made his scheduled mortgage payments up until his
default in August 2008. Compl. ¶ 71; Def. Deutsche Br., Exh. A. ¶ 3(j).4 In June
2012, Deutsche Bank, as the Trustee of the IndyMac INDX Mortgage Loan Trust,
filed a state-court complaint to foreclose on the Brookfield property. Compl. ¶ 21.
Balogh alleges that Deutsche and Ocwen did not review his mortgage for loss
mitigation before Deutsche Bank filed its complaint for foreclosure. Compl. ¶¶ 23,
In June 2016, Balogh sent notice to Ocwen Servicing that he wanted to
rescind the loan. Compl. ¶ 24. Ocwen did not return any money or property at issue
in the loan transaction to Balogh after receiving notice of rescission, nor did it begin
the process of formally rescinding the loan. Compl. ¶¶ 45-46. The same day, he sent
an official Request for Information to Ocwen seeking details about his loan,
including the owner of the note, proof of any assignments, and a breakdown of fee
assessments. Id. ¶ 25. Ocwen did not deliver the information and failed to provide a
written response to Balogh that fulfilled the statutory guidelines. Compl. ¶¶ 30-33.
After the state court entered its initial judgment of foreclosure, and in light of
Ocwen not responding sufficiently to his request, Balogh brought this suit in federal
court in February 2017. Compl. ¶¶ 2, 3, 13. The crux of his claims is the allegation
the state-court foreclosure filings are outside the pleadings in this case,
this Court may take judicial notice of matters of public record without converting the
motion to dismiss into a motion for summary judgment, particularly where the facts are not
subject to reasonable dispute. Ennenga v. Starns, 677 F.3d 766, 773 (7th Cir. 2012). This
Court takes judicial notice of the underlying foreclosure documents, as they are state court
filings and orders as a matter of public record, which is appropriate on a motion to dismiss.
assignments” of his mortgage and kept the true ownership information from him.
Id. ¶ 13. The Illinois state foreclosure case remains ongoing. Def. Nevel’s Br., Exh.
A. Defendants move to dismiss the complaint for lack of subject matter jurisdiction
and for failure to state a claim. Def. Deutsche Mot. Dismiss ¶¶ 3-4; Def. Nevel’s Br.
II. Legal Standard
Deutsche Bank and Ocwen Servicing bring their motion under Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6). A Rule 12(b)(1) motion tests whether the
Court has subject-matter jurisdiction, Hallinan v. Fraternal Order of Police of Chi.
Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009); Long v. ShoreBank Dev. Corp., 182
F.3d 548, 554 (7th Cir. 1999), while a Rule 12(b)(6) motion tests the sufficiency of
the complaint, Hallinan, 570 F.3d at 820; Gibson v. City of Chi., 910 F.2d 1510,
1520 (7th Cir. 1990). In order to survive a Rule 12(b)(1) motion, the plaintiff must
establish that the district court has jurisdiction over an action. United Phosphorous,
Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir. 2011), overruled on other
grounds by Minn-Chem, Inc. v. Agrium, Inc., 683 F.3d 845 (7th Cir. 2012). “If
subject matter jurisdiction is not evident on the face of the complaint, [then] the ...
Rule 12(b)(1) [motion is] analyzed [like] any other motion to dismiss, by assuming
for the purposes of the motion that the allegations in the complaint are true.”
United Phosphorus, 322 F.3d at 946. But “if the complaint is formally sufficient but
the contention is there that there is in fact no subject matter jurisdiction, [then] the
movant may use affidavits and other material to support the motion.” Id. (emphasis
The other ground that the defense advances is Rule 12(b)(6). “A motion under
Rule 12(b)(6) challenges the sufficiency of the complaint to state a claim upon which
relief may be granted.” Hallinan, 570 F.3d at 820. “[A] complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). These allegations “must be enough to raise a
right to relief above the speculative level.” Twombly, 550 U.S. at 555. The
allegations that are entitled to the assumption of truth are those that are factual,
rather than mere legal conclusions. Iqbal, 556 U.S. at 678-79.
Ordinarily, claims only must meet the Rule 8(a)(2) standard. But claims
alleging fraud must also satisfy the heightened pleading requirement of Federal
Rule of Civil Procedure Rule 9(b), which requires that “[i]n alleging fraud or
mistake, a party must state with particularity the circumstances constituting fraud
or mistake.” Fed. R. Civ. P. 9(b) (emphasis added). And Rule 9(b)’s heightened
pleading standard applies to fraud claims brought under the ICFA. Pirelli
Armstrong Tire Corp. Retiree Med. Benefits Trust v. Walgreen Co., 631 F.3d 436, 441
(7th Cir. 2011) (citation omitted). Thus, Rule 9(b) requires that Balogh’s complaint
state “the identity of the person making the misrepresentation, the time, place, and
content of the misrepresentation, and the method by which the misrepresentation
was communicated to the plaintiff.” Uni*Quality, Inc. v. Infotronx, Inc., 974 F.2d
918, 923 (7th Cir. 1992) (internal quotation marks and citation omitted). Put
differently, his complaint “must describe the who, what, when, where, and how of
the fraud.” Pirelli, 631 F.3d at 441-42 (internal quotation marks and citation
At the outset, Deutsche Bank and Ocwen Servicing question Balogh’s ability
to bring a claim at all because he lacks any Article III injury. Def. Deutsche’s Br. at
10. To have standing to bring a suit, a litigant must have suffered an injury that is
fairly traceable to the defendant’s conduct and able to be redressed by a favorable
judicial decision. Diedrich v. Ocwen Loan Servicing, LLC, 839 F.3d 583, 587-88 (7th
Cir. 2016) (citing Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016)). Plaintiffs
must allege a particularized injury-in-fact. Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61 (1992). Standing is a threshold showing, and a concrete injury must
“actually exist” and not be “abstract.” Spokeo, 136 S. Ct. at 1548. For Balogh to
demonstrate that he has standing, this Court looks to whether he has sufficiently
alleged facts supporting concrete injuries that are fairly traceable to each of his
claims. Lujan, 504 U.S. at 560-61.
Balogh brings claims under several federal and state laws, but Deutsche and
Ocwen argue that Balogh “fail[s] to articulate any concrete injury” from the alleged
statutory violations. Def. Deutsche’s Br. at 10. But this is not right. First, the
section of RESPA at issue, 12 U.S.C. § 2605(e)(1)(A), “imposes a duty on loan
servicers to respond to borrower inquiries.” Diedrich, 839 F.3d at 587-88. As the
Seventh Circuit noted in Diedrich, RESPA does provide for “actual damages” caused
by the loan servicer’s failure to provide information to the borrower. Id. at 589
(emphasis in original) (citing 12 U.S.C. § 2605(f)(1)(A)). RESPA also provides for
statutory damages, up to $2000, for a pattern or practice of failing to comply with
the law. § 2605(f)(1)(B). Although Balogh does not plead factual basis to infer a
pattern or practice of violations (he pleads only the conclusion of a “pattern,” Compl.
¶ 34), he does assert that he hired an “auditor and lawyer to persist in these efforts
to obtain critical information” on the account. Compl. ¶ 36. Giving Balogh the
benefit of reasonable inferences, Balogh presumably found it necessary to hire the
auditor and lawyer because Ocwen would not respond with the loan information
that he needed. What he paid for those services qualify as concrete injuries that
establish Article III standing (whether he states an adequate claim for relief on the
merits is another matter, as discussed later in the Opinion).
Moving beyond RESPA, Balogh does not really set forth a separate
explanation on the concrete injuries he suffered on the other claims. See R. 22, Pl.’s
Resp. Br. to Deutsche; R. 23, Pl.’s Resp. Br. to Nevel. Deutsche argues that Balogh
lacks standing for his fraud and Home Affordable Modification Program (HAMP)
claims.5 Def. Deutche’s Br. at 10-11. But the rationale for the concrete injury is the
same: Balogh has had to hire a lawyer to fight the allegedly improper foreclosure. In
short, Balogh alleges particularized injuries—apart and separate from his
in reality takes aim at Balogh’s state law fraud and ICFA claims, under
which his HAMP allegations fit. See Compl. ¶¶ 65-69.
foreclosure—stemming from Defendants’ alleged conduct, even if his complaint also
bemoans the foreclosure itself. Article III standing is secure.
The other jurisdictional challenge that the defense brings is based on the
Rooker-Feldman doctrine. Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District
of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). This doctrine rests
on the premise that the Supreme Court is the only federal court with appellate
authority over state-court decisions. Taylor v. Fed. Nat’l Mortg. Ass’n, 374 F.3d 529,
532 (7th Cir. 2004). It prevents lower federal courts—such as this District Court—
from exercising jurisdiction over cases challenging state-court judgments entered
before the losing party files a federal suit. See Exxon Mobil Corp. v. Saudi Basic
Indus. Corp., 544 U.S. 280, 284 (2005).
Although the core of Rooker-Feldman is that it bars a party from directly
contesting a state-court judgment’s validity in a lower federal court, the doctrine
also applies when a party brings a federal case that is “closely enough related” to a
state-court judgment, even if the losing party is not directly asking the lower federal
court to review the state judgment. Mains v. Citibank, 852 F.3d 669, 675 (7th Cir.
2017). For example, if the federal plaintiff really is seeking relief for an injury that
is caused by the state-court judgment, then in effect the plaintiff really is seeking—
impermissibly—review of the judgment. Id. So the doctrine applies if there is “no
way for the injury complained of by a plaintiff to be separated from a state court
judgment.” Id. (quoting Sykes v. Cook Cty. Cir. Ct. Prob. Div., 837 F.3d 736, 742 (7th
Cir. 2016)). In contrast, if a suit seeks damages for independently unlawful
conduct—separate and apart from the state-court judgment—it should not be
barred.6 See Johnson v. Pushpin Holdings, LLC, 748 F.3d 769, 773 (7th Cir. 2014).
Defendants Deutsche and Ocwen do not offer a precise analysis of how
Rooker-Feldman bars any claim in particular. They merely contend that “most of
Balogh’s allegations are barred” and that “to the extent the Complaint seeks to
impact” the state judgments by “characterizing the foreclosure as fraudulent,”
Rooker-Feldman bars the claims. Def. Deutsche’s Br. at 11, 13. But because RookerFeldman is an issue of subject matter jurisdiction, this Court has an independent
obligation to ensure that jurisdiction exists.
The first issue to consider is whether the state-court foreclosure judgment
can even trigger the Rooker-Feldman doctrine at all. Under Illinois law, a judgment
of foreclosure—despite the fact that it is called a “judgment”—is an interlocutory
order. EMC Mortg. Corp. v. Kemp, 982 N.E.2d 152, 154 (Ill. 2012); HSBC Bank USA
v. Townsend, 793 F.3d 771, 776 (7th Cir. 2015).7 That is, a judgment of foreclosure
does not actually “dispose of all issues between the parties and it does not terminate
is a separate doctrine from that of res judicata, or claim
preclusion. Even in situations where Rooker-Feldman does not bar a claim, the principles of
claim preclusion might still apply to bar the proceedings. See Mains v. Citibank, 852 F.3d
669, 675 (7th Cir. 2017). No arguments about claim preclusion are made in Defendants’
initial briefs, and Defendants only briefly mention it in their reply without developing the
argument. Def. Deutsche’s Reply Br. at 6.
7A host of options and doctrines would be available to Defendants if Balogh brought
a federal suit before any judgments had been rendered in the ongoing state suit, but
Rooker-Feldman is not one of them. “Comity or abstention doctrines may, in various
circumstances, permit or require the federal court to stay or dismiss the federal action in
favor of the state-court litigation.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S.
280, 292 (2005).
the litigation.” See HSBC Bank USA, 793 F.3d at 776 (quoting EMC Mortg., 982
N.E.2d at 154). Other steps remain in a foreclosure case, even after the judgment of
foreclosure. The lender eventually will ask for an order of possession (authorizing
the lender to take possession of the property), as well as an order allowing and then
approving the sale of the property. HSBC Bank USA, 793 F.3d at 776. Indeed, the
borrower still has an opportunity to redeem the property after the foreclosure
judgment is entered. Id. The Seventh Circuit has not definitively answered whether
Rooker-Feldman applies to judgments of foreclosure.8 The courts in this District are
divided on the issue.9
one case, the Seventh Circuit held that claims were only barred when state court
proceedings had actually ended, stating “therefore, an interlocutory ruling does not evoke
the doctrine or preclude federal jurisdiction.” TruServ Corp. v. Flegles, Inc., 419 F.3d 584,
591 (7th Cir. 2005). But TruServ did not involve a foreclosure judgment; the interlocutory
decision at issue was merely a denial of a motion to dismiss based on a forum selection
clause. Id. More recently, the Seventh Circuit stated that the “principle that only the
Supreme Court can review the decisions by the state judiciary in civil litigation is as
applicable to interlocutory as to final state-court decisions.” Harold v. Steel, 773 F.3d 884,
886 (7th Cir. 2014). But, again, that case did not involve a judgment of foreclosure, and
indeed the statement was not necessary to the holding of the case, because the state-court
garnishment order actually was a final order. Id. There is a risk of stretching the dictum in
Harold too for, because the general rule is that Rooker-Feldman does not apply if there is
no final judgment in state court. Even more recently, in an unpublished decision, the
Seventh Circuit cited Harold to hold that the interlocutory nature of a foreclosure judgment
is not an impediment to applying Rooker-Feldman. Carpenter v. PNC Bank, 633 F. App’x
346, 348 (7th Cir. 2016) (non-precedential disposition). But Carpenter is not controlling
authority. Seventh Cir. R. 32.1(b).
9Compare Hodges v. CIT Grp. (In re Hodges), 350 B.R. 796, 801-03 (Bankr. N.D. Ill.
2006); Lihter v. Pierce & Assocs., 2016 WL 4771370, at *2 (N.D. Ill. Sep. 13, 2016); Schuller
v. Am.'s Wholesale Lender, 2015 WL 5316413, at *2-3 (N.D. Ill. Sep. 9, 2015); Berry v. Wells
Fargo Bank N.A., 2015 WL 8601866, at *2-3 (N.D. Ill. Dec. 14, 2015), with Byrd v.
Homecomings Fin. Network, 407 F. Supp. 2d 937, 943-44 (N.D. Ill. 2005); Medrano v. Ocwen
Loan Servicing, LLC, 2017 WL 413614, at *4 (N.D. Ill. Jan. 31, 2017). See also, Garavito v.
Suntrust Mortg., Inc., 2013 WL 856127, at *4-5 (N.D. Ill. Mar. 6, 2013) (noting “the
purposes behind the Rooker-Feldman doctrine would be served by allowing an Illinois
foreclosure judgment to satisfy the finality requirement” but declining to apply RookerFeldman because the “Seventh Circuit has ruled that ‘an interlocutory ruling does not
evoke the doctrine or preclude federal jurisdiction.’” (quoting TruServ, 419 F.3d at 591)).
Reasoning from first principles, ordinarily an interlocutory order cannot
serve as the trigger of the Rooker-Feldman doctrine: lower federal courts are not
permitted to “review and reverse unfavorable state-court judgments.” See Exxon
Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283 (2005) (emphasis added).
But judgments of foreclosure are inherently different from ordinary interlocutory
orders. A judgment of foreclosure does definitively decide certain claims asserted by
the lender and does grant certain requests for relief sought by the lender. In that
sense, the judgment is final on those definitively decided claims and requests for
relief. Indeed, nothing in the ensuing state-court litigation would change the
outcome of the judgment of foreclosure. So a foreclosure judgment is actually akin to
a partial judgment under Federal Rule of Civil Procedure 54(b). See Fed. R. Civ. P.
54(b). In other words, the foreclosure judgment enters final decisions on certain
claims and requests for relief, so much so that the parties then move forward with
other claims and requests for relief on the premise that the foreclosure judgment is
in place. If, after the entry of a foreclosure judgment, a borrower sought a federalcourt declaratory judgment that the lender had no interest in the property, then the
district court would be undoing the foreclosure judgment to hold otherwise. That
claim would be barred under Rooker-Feldman.
At any rate, because Balogh does not explicitly ask to vacate the foreclosure
judgment, Rooker-Feldman applies only to the extent Balogh asks for relief
“inextricably intertwined” with his state court judgment, in that the relief requested
would aim to undo or undermine the judgment. Exxon, 544 U.S. at 286 n.1 (quoting
Feldman, 460 U.S. at 486). In Mains v. Citibank, the Seventh Circuit affirmed the
dismissal of RESPA and TILA claims (among others) based on Rooker-Feldman,
even though none of the federal-complaint allegations flatly demanded a reversal of
the state-court foreclosure judgment. Mains v. Citibank, 852 F.3d 669, 677 (7th Cir.
2017). The borrower’s RESPA claim sought an accounting on the loan to determine
if the lender charged him improper late fees during the loan’s life. Id. at 676. That
aspect of the RESPA claim did not afoul of Rooker-Feldman, because the late fees
were imposed during the payment-plan period, well before the foreclosure judgment
was entered. Id. But the borrower also contended that the lender should not have
collected on the mortgage note before providing the accounting. Id. That aspect of
the RESPA claim was barred by Rooker-Feldman because “[i]n effect, it is just
another way to try to undo the state court’s foreclosure judgment.” Id. The TILA
claim in Mains was even more clearly violative of Rooker-Feldman, because the
borrower alleged that the bank misrepresented what payments were due, failed to
respond to his attempt to rescind the loan, and was not the “proper holder and
servicer of the loan.” Id. at 676-77. Remedying those alleged violations would
require “disregarding or effectively vacating” the foreclosure judgment. Id. at 677.
Some of the relief sought by Balogh would run into the jurisdictional bar of
Rooker-Feldman. In his complaint, Balogh outright asserts that Defendants
“unlawfully st[ole]” his home. Compl. ¶ 1. But a lower federal court cannot vacate
the foreclosure judgment, so Balogh cannot pursue that relief here. Similarly, any
emotional distress over the foreclose judgment is again an injury arising out of the
state-court judgment, so that too cannot be recovered here. Some of the other forms
of relief that Balogh seeks likewise would require, in effect, vacatur of the
foreclosure judgment. For failing to properly respond to his rescission demand
under TILA, Balogh seeks the “return of any money or property” in connection with
his mortgage transactions and “forfeiture o[r] return of loan proceeds.” Compl. ¶ 48.
But ordering a return of his house or the money paid for it would directly contradict
the foreclosure judgment, so Rooker-Feldman bars that form of relief too.
Nevertheless, some of the relief that Balogh seeks is not barred by RookerFeldman. Specifically, the RESPA claim alleges that Ocwen failed to provide
information about the consideration for any assignments of the loan and when the
loan was assigned. Compl. ¶ 30. In light of that alleged failure to provide
information, Balogh had to hire an auditor and lawyer to ferret out the information.
Compl. ¶ 36. Compensation for those expenses would not require undoing the
foreclosure judgment—Balogh could concede the propriety of the foreclosure but
still complain that the information should have been provided so that he did not
have to expend his own money to get it. Also, Balogh seeks statutory damages
under both RESPA and TILA, 12 U.S.C. § 2065(f); 15 U.S.C. § 1635(b), and those
damages (again, at least for Rooker-Feldman purposes) would not require undoing
the foreclosure judgment. So some aspects of the RESPA and TILA claims are not
blocked by Rooker-Feldman. Having said that, as explained next, the complaint fails
to adequately state claims for relief under those statutes.
C. Count 1: RESPA Request for Information
Under the Real Estate Settlement Procedures Act, a borrower can request
certain information from the servicer of the loan. 12 U.S.C. § 2605(e)(1)(A).
Specifically, a borrower can ask for information “relating to the servicing of such
loan,” and when the borrower makes a “qualified written request,” the servicer then
must respond with the information within 30 days. Id. § 2605(e)(1)(A), (e)(2).
Ocwen offers two arguments against the RESPA claim: (1) Balogh did not
request the type of information that is covered by RESPA; and (2) even if the
information that was requested was covered, Ocwen was no longer servicing the
loan when Balogh made the request. Def. Deutsche’s Br. at 5. On the first
argument, Ocwen points out that RESPA only requires loan servicers to provide
information “relating to the servicing” of the loan. 12 U.S.C. § 2605(e)(1)(A)
(emphasis added). Ocwen then relies on the implementing regulation’s definition of
“servicing,” which says—in part—that “servicing means receiving any scheduled
periodic payments from a borrower,” 12 C.F.R. § 1024.2(b). Because Balogh asked
about loan assignments and the ownership of the note, Ocwen reasons that his
request went beyond “servicing” information because those two subjects do not
relate to “scheduled periodic payments.” Def. Deutsche’s Br. at 5-6.
This argument fails, because Ocwen ignores the remainder of the regulation’s
definition of servicing. In pertinent part, the regulation defines servicing to mean
“receiving any scheduled periodic payments from a borrower … and making the
payments to the owner of the loan or other third parties of principal and interest.”
§ 1024.2(b) (emphasis added). Balogh asked for information about who formally
owned his mortgage—indeed he particularly requested the “name of the owner of
his loan.” Compl. ¶ 25. That fits within the definition of “servicing,” which includes
making payments to the owner of the loan.
But Ocwen’s second argument against the RESPA claim is a winner: Ocwen
was no longer the “servicer” of Balogh’s loan by the time Balogh got around to
asking for information, which was around eight years after he stopped making
payment on the loan. RESPA defines a “servicer” as “the person responsible for
servicing a loan … .” 12 U.S.C. § 2605(i)(2). And remember that “servicing” means,
in relevant part, “receiving any scheduled periodic payments from a borrower.”
§ 2605(i)(3); 12 C.F.R. § 1024.2(b). So if a servicer is no longer “receiving any
scheduled periodic payments from a borrower,” then it is no longer servicing the
loan. Once a borrower defaults on a loan, then there are no longer any scheduled
periodic payments to collect. See Jones v. Wells Fargo Home Mortgage, Inc., 2014
WL 3974261, at *3 (N.D. Ill. Aug. 12, 2014) (holding that, after default, “because it
had ceased servicing [borrower’s] Mortgage Loan within the meaning of RESPA,
[the former servicer] was no longer bound by RESPA’s requirement to furnish [the
borrower] information”); Bilek v. Bank of Amer., N.A., 2011 WL 830948, at *5 (N.D.
Ill. Mar. 3, 2011) (holding that servicer was no longer “servicing” the loan after it
stopped “receiving any scheduled periodic payments”). Balogh admits that he was
delinquent in his payments, Compl. ¶ 71, and he does not dispute that the default
occurred on August 1, 2008, Def. Deutsche Br., Exh. A. ¶ 3(j). Almost eight years
later, in June 2016, he sent the request for information to Ocwen. That is way too
late, because Ocwen had not been servicing the loan, for RESPA’s purposes, as of
the date that he defaulted. Count 1, the RESPA claim against Ocwen, is dismissed
for failure to state a claim.
D. Count 2: Truth in Lending Act
(Ocwen and Deutsche Bank)
The purpose of TILA is to “assure a meaningful disclosure of credit terms so
that the consumer will be able to compare more readily the various credit terms
available to him and avoid the uninformed use of credit.” 15 U.S.C. § 1601(a). To
that end, TILA generally authorizes borrowers to rescind certain consumer credit
transactions, including a mortgage for their principal home. 15 U.S.C. § 1635(a).
This means that if a third-party creditor tries to buy a homeowner’s mortgage
note—say from the original bank—the homeowner has a chance to rescind the
transaction. Typically, the mortgager has three business days after the transaction
to rescind, no questions asked. Id. If the lender violates TILA’s disclosure
requirements, then the right to rescind expands beyond the three days for
unconditional rescissions. See id. § 1635(f). But TILA contains what is in essence a
statute of repose, putting the upper limit for rescission at three years “after the date
of consummation of the transaction,” no matter what. Id.; Beach v. Ocwen Federal
Bank, 523 U.S. 410, 411-12 (1997) (“[Section] 1635(f) completely extinguishes the
right of rescission at the end of the 3-year period.”). That repose period begins to
run after “the date the transaction is consummated or ‘closed’—the date the
borrower signed the loan documents.” Barnes v. Homestart Mort. Corp., 2012 WL
4434683, at *2 (N.D. Ill. Sept. 20, 2012) (citing 12 C.F.R. § 226.2(a)(13)).
Balogh received his Truth in Lending Disclosure Statement on May 13, 2005,
when the mortgage loan on his home originated. Compl. ¶ 41; Def. Deutsche’s Br.,
Exh. A. Almost a decade later, he tried to rescind the transaction on April 20, 2015,
when he sent a notice to Ocwen. Compl. ¶ 43. Those dates alone are enough to
require dismissal under the statute of repose. To be sure, a statue of repose (like a
limitations period) is an affirmative defense, so ordinarily a dismissal motion is not
the right way to litigate it. But when the “the plaintiff effectively pleads herself out
of court by alleging facts that are sufficient to establish the defense,” Hollander v.
Brown, 457 F.3d 688, 691 n. 1 (7th Cir. 2006), then a Rule 12(c) motion (for
judgment on the pleadings) is a proper vehicle to decide the defense. Balogh alleges
that the transaction occurred in May 2005, when he bought his house, and that he
tried to rescind in April 2015—almost a decade later. The statute of repose requires
Balogh’s argument against this conclusion is not entirely clear. He seems to
argue that Ocwen did not respond to his notice of rescission, and therefore—voila—
the rescission was already accomplished. Pl.’s Resp. Br. to Deutsche at 4-5. Balogh
then takes out of context a statement by the Supreme Court that TILA “nowhere
suggests a distinction between disputed and undisputed rescissions,” Jesinoski v.
Countrywide Home Loans, Inc., 135 S. Ct. 790, 792 (2015) (quoted by Pl.’s Resp. Br.
to Deutsche at 5). So Balogh contends that even though Ocwen disputes the
effectiveness of the rescission, the rescission was completed. That argument ignores
the crucial point in Jesinoski that the borrowers there sent the written notice before
the three-year period expired. Id. at 791. Once the on-time notice was sent, the
borrowers satisfied the notice requirement without having to file a lawsuit within
the three-year period. Id. at 792-93. Not surprisingly, Jesinoski says nothing about
rejecting the clear statutory command in § 1635(f) that the “right of rescission shall
expire three years after the date of consummation of the transaction … .” The TILA
claim was filed too late and must be dismissed.
E. State Law Fraud Claims
With Counts 1 and 2 dismissed, the remaining claims are the state law fraud
claims. Count 3 alleges that Ocwen conspired with the Law Office of Ira T. Nevel to
commit fraud (presumably common-law fraud) by creating a fraudulent assignment;
Count 4 alleges the same conspiracy as a violation of the Illinois Consumer Fraud
Act, 815 ILCS 505/2; and Count 5 alleges that Ocwen and Deutsche Bank violated
the Illinois Consumer Fraud Act by failing to give Balogh loss-mitigation options
under the Home Affordable Modification Program (widely known as HAMP).10 But
now that the federal law claims have been dismissed, the usual presumption kicks
was established by the Treasury Department amid the economic fallout of
2008. See Emergency Economic Stabilization Act of 2008, 12 U.S.C. § 5201 et seq. HAMP
aims to “prevent unnecessary foreclosures by encouraging banks to restructure and
refinance certain mortgages in default or in imminent risk of default.” Boyd v. U.S. Bank,
N.A., ex rel. Sasco Aames Mortg. Loan Trust, Series 2003-1, 787 F. Supp. 2d 747, 750 (N.D.
Ill. 2011). What HAMP does not do is create a private right of action for consumers like
Balogh, Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 559 n.4 (7th Cir. 2012) (“First,
some homeowners tried to assert rights arising under HAMP itself. Courts have uniformly
rejected these claims because HAMP does not create a private federal right of action for
borrowers against servicers.”), which is probably why Balogh recasts the alleged HAMP
violations as a state law fraud claim.
in: “when the federal claims are dismissed before trial, there is a presumption that
the court will relinquish jurisdiction over any remaining state law claims.”
Dietchweiler by Dietchweiler v. Lucas, 827 F.3d 622, 631 (7th Cir. 2016) (per curiam)
(citing cases). Indeed, this presumption is statutorily expressed in 28 U.S.C.
§ 1367(c)(3), which provides for the discretionary relinquishment of jurisdiction over
state claims when the claims providing original jurisdiction (here, federal-question
jurisdiction) have been dismissed. There is no good reason to hang onto the state
claims: there will be no statute of limitations bar because of Illinois’s savings
statute, 735 ILCS 5/13-217. And the defense argued for relinquishment, R. 29, Def.
Deutsche Reply Br. at 3, but Balogh did not respond. See Pl.’s Resp. Br. to Deutsche;
Pl.’s Resp. Br. to Nevel. If and when the federal law claims are dismissed with
prejudice, then this Court will relinquish supplemental jurisdiction over the state
For the reasons discussed, the motion to dismiss is granted as to the federal
law claims. But before entering a dismissal with prejudice and a final judgment, the
Court will give Balogh until December 12, 2017, to move for leave to amend the
complaint (and attach a proposed amended complaint). It does not seem likely that
Balogh can fix the problems with the RESPA and TILA claims, but ordinarily a
plaintiff should be given a chance to amend the complaint. If no motion is filed by
that date, then the Court will enter the dismissal with prejudice on the federal
claims and relinquish the state claims. The status hearing of December 19, 2017
remains in place.
s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: November 28, 2017
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