On April 16, 2007, the Plaintiff executed a mortgage loan from Bank of America, N.A. After the Plaintiff failed to make adequate payments, Bank of America, N.A. filed a Foreclosure Complaint. In January 2013, the Plaintiff filed a Chapter 13 Bankruptcy, resulting in an entrance of an automatic stay. In June 2013, the Plaintiff filed a modified Chapter 13 bankruptcy, proposing to surrender the home to Bank of America, N.A. to satisfy the claims. The modified plan was confirmed by the bankruptcy court in June 2013.
Not too long after, Bank of America, N.A. sold the debt to BSI Financial Services, Inc. On October 1, 2014, BSI Financial Services, Inc. sent the Plaintiff a Notice of Servicing Transfer, which told the Plaintiff to send any payments due on or after October 1, 2014 to BSI Financial Services, Inc. The new servicing group also attached a disclaimer, which read:
If you have filed a bankruptcy petition and there is an “automatic stay” in effect in your bankruptcy case or you have received a discharge of your personal liability for the obligation identified in this letter, we may not and do not intend to pursue collection of that obligation from you personally.
Six months after the notice was sent, BSI Financial Services, Inc. placed over ten phone calls to the Plaintiff’s cell phone, and no less than five to the Plaintiff’s home telephone. In addition, BSI Financial Services, Inc. left over 10 voicemails.
Finally, the Plaintiff answered and requested for BSI Financial Services, Inc. to stop calling them since they had already filed bankruptcy. Unfortunately, the calls continued. The Plaintiff’s Complaint alleged that BSI Financial Services, Inc.:
- Made at least 10 calls between October 15, 2014 and December 12, 2014
- Used an automatic telephone dialing system when calling
- Continued to make calls to the Plaintiff cell phone
- Continued to contact the Plaintiff without consent
Following these claims, BSI Financial Services, Inc. requested that the court dismiss four different claims.
The Results
Because the Plaintiff made various claims, the court made multiple decisions. These decisions are listed below:
- The court determined that Count 1 of the Complaint would not be dismissed because BSI Financial Services, Inc. acted as a debt collector, violating the Fair Debt Collection Practices Act.
- The court determined that Count II of the complaint would be dismissed because there was no proof that the voicemails left to the Plaintiff were prerecorded, that the Plaintiff answered the calls, or that there was a delay before the Plaintiff received a human response.
- The court determined that Count III would not be dismissed because the defendant participated in acts of collecting, assessing, or recovering a claim against the debtor by sending the Plaintiff letters and making multiple phone calls for collection purposes. By participating in such activities, the defendant violated the bankruptcy automatic stay.
- The court must further analyze the fourth claim to determine whether the defendant violated the Illinois Consumer Fraud Deceptive Business Practices Act.
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