Messina v. Green Tree Servicing, LLC, Case No. 14 C 7099

• Decision Date: 28 September 2016
• Docket Number: Case No. 14 C 7099
• Citation: 210 F.Supp.3d 992
• Parties: Teresa MESSINA, Nicholas Kukuc, and A.M., a minor child, by and through Teresa Messina his Mother and Next Friend, Plaintiffs, v. GREEN TREE SERVICING, LLC, a Delaware Limited Liability Company, Defendant.
• Court: U.S. District Court — Northern District of Illinois

210 F.Supp.3d 992

Teresa MESSINA, Nicholas Kukuc, and A.M., a minor child, by and through Teresa Messina his Mother and Next Friend, Plaintiffs,

v.GREEN TREE SERVICING, LLC, a Delaware Limited Liability Company, Defendant.

Case No. 14 C 7099

United States District Court, N.D. Illinois, Eastern Division.

Signed September 28, 2016

Roger Zamparo, Jr., Jordan M. Sartell, Zamparo Law Group, P.C., Hoffman Estates, IL, Ronald Wilcox, The Law Office of Ronald Wilcox, San Jose, CA, for Plaintiffs.

Anna-Katrina S. Christakis, Dina Marie Masiello, Jennifer Lisa Majewski, Pilgrim Christakis LLP, Chicago, IL, for Defendant.

OPINION AND ORDER

Joan H. Lefkow, U.S. District Judge

Teresa Messina and her sons, Nicholas Kukuc and A.M., allege that Green Tree Servicing, LLC, in the course of servicing Messina's mortgage, violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (FDCPA) (count I), the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (TCPA) (count II), the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 Ill. Comp. Stat 505 et seq. (ICFA) (count III), the Real Estate Settlement Procedures Act, 12 U.S.C. § 2605 et seq. (RESPA) (count IV), and intruded on her seclusion (count V).¹ (Dkt. 36.) Green Tree's motion for summary judgment on all counts is now before the court. (Dkt. 95.) For the reasons stated below, Green Tree's motion is granted in part and denied in part.

BACKGROUND²

In August 2005, Messina obtained a mortgage loan from First Magnus Financial Corporation. (Dkt. 97, Defendant's Local Rule 56.1 Statement of Undisputed Material Facts (Def.'s LR 56.1 ) ¶ 8.) Beginning in October 2005, Messina had a monthly payment due on the first of each month. According to the terms of the loan agreement, a failure to timely pay the full amount due resulted in a default. (Id. ¶ 10; dkt. 107, Plaintiffs' Local Rule 56.1 Statement of Additional Undisputed Material Facts (Pls.' LR 56.1 ) ¶ 21; dkt. 107-2, Messina Decl., Ex. 13 §§ 3(A), 6(b).)³ Shortly after it was entered into, First Magnus assigned the loan to Bank of America (BoA). (Def.'s LR 56.1 ¶ 9.) On March 9, 2013, Messina received a letter from BoA notifying her that, beginning April 1, 2013, Green Tree would begin servicing the loan. (Id. ¶ 13.)

On March 19, 2013, Messina made a scheduled payment of $1,543.33; however, BoA's records incorrectly reflected that the payment was in the amount of $1,963.87. (Def.'s LR 56.1 ¶¶ 15–16; Pls.' LR 56.1 ¶ 24; dkt. 107-2, Messina Decl., Ex. 14 at TM_00159.) It is not entirely clear why, but the next day BoA issued an $832.55 overage refund check to Messina, which she cashed. (Def.'s LR 56.1 ¶¶ 17–18.) On April 16, 2013, Messina made a $1,543.33 payment, of which at least a portion was used to fully satisfy Messina's payment due on March 1, 2013. (Pls.' LR 56.1 ¶¶ 29–30.) Therefore, it was not until April 16, 2013, that, at least according to how Green Tree was tracking her mortgage, Messina became current on her March 2013 payment. (Id. ¶ 30; Defendant's Response to Pls.' LR 56.1 (Def.'s Resp. LR 56.1 ) ¶ 30.) It appears that it was the accounting of the March 19, 2013 payment that precipitated this lawsuit and led to Green Tree's allegation that Messina was perpetually $420.54 delinquent on her loan.

In the months that followed, Green Tree was in frequent communication with plaintiffs. Between April 29, 2013 and August 30, 2014, Green Tree placed more than 250 calls to plaintiffs.⁴ (See Pls.' LR 56.1 ¶ 2.) The vast majority of these calls were placed from August to November 2013 (see Call Summary Chart) and were done so through one of two methods: (1) click-to-dial calls and (2) automated dialer calls. (Def.'s LR 56.1 ¶ 34.)⁵ When call center agents placed click-to-dial calls they did so by either dialing the call, typing a phone number into the keypad of the agents' computer, or clicking on the telephone number on their computers. (Id. ¶ 39.) Regardless of the location of the call center agent, loan information, including phone numbers, were stored on a server in St. Paul, Minnesota, which call center agents accessed by logging in from their local computers to Green Tree's UCSe user interface. (Id. ¶¶ 35, 38; dkt. 101-3, Sparks Decl. ¶ 6.) While the agents' computers did not store customer information, have software that allowed for telephone numbers to be called using a random or sequential number generator, or have the ability to perform predictive dialing (Def.'s LR 56.1 ¶ 37; dkt. 101-3, Sparks Decl. ¶ 6), a call center agent could nonetheless participate in a dialer campaign from their local computer.

Dialer campaigns were conducted through a combination of hardware and software located in Tempe, Arizona and St. Paul, Minnesota. (Def.'s LR 56.1 ¶¶ 43–44.) For a dialer campaign to proceed, a Green Tree employee would determine criteria to be used to identify the phone numbers to be called; then the phone numbers that fit within those criteria would be transferred in a data file to the dialer. (Id. ¶¶ 44–45.) To participate in a campaign, a call center agent would log on to the predictive dialer from the UCSe interface. (Id. ¶ 46.) If the dialer detected that a live person answered the phone, it would then transfer the call to an available, logged-in call center agent. (Id. ¶ 47.) Call center agents did not have the ability to initiate dialer campaigns, which could apparently be initiated either at a national or regional level (see id. ¶¶ 48–51).

Green Tree called plaintiffs using both of the above-described methods, resulting in 167 calls to Messina (including 158 between August and November 2013), 56 to A.M. (including 54 between August and November 2013), and 39 to Kukuc (all of which were placed from August to November 2013). (See Call Summary Chart.) All of the calls placed to Kukuc and A.M. were click-to-dial calls, whereas 57 of the calls placed to Messina were dialer calls. (Call Summary Chart; dkt. 107-1, Sartell Decl., Ex. 9 (Green Tree Dialer Log) at GT0001–04.) At least when not answered, Green Tree often would not identify that it placed the call by leaving a message. (See Pls.' LR 56.1 ¶ 4; dkt. 107-1, Sartell Decl., Ex. 8 (Green Tree Account Notes).)

It is not necessary to detail each of these calls, but some are relevant to whether plaintiffs consented to Green Tree's calls. On July 19, 2013, a call center agent placed a click-to-dial call to Messina, during which Messina declined call back permission. (Id. ¶ 59.) On August 2, 2013, Green Tree placed another click-to-dial call to Messina. (Def.'s LR 56.1 ¶ 61; Call Summary Chart at 1.) Green Tree's account notes indicate that Messina gave Green Tree permission to call her back (Def.'s LR 56.1 ¶ 60), but Messina disputes that characterization and supports her dispute with her own recollection as well as the account notes that indicate that she was uncooperative, referenced her attorney, and refused to be provided with Green Tree's contact information (see Pls.' Resp. LR 56.1 ¶ 60; dkt. 107-2, Messina Decl. ¶ 13; Green Tree Account Notes at GT0038–39). On August 26, 2013, Green Tree placed another click-to-dial call to Messina, in which it asked for call back permission. (Pls.' LR 56.1 ¶ 7.) Messina replied, "Yes. As long as I'm not being harassed." (Id. ¶ 7; Def.'s Resp. LR 56.1 ¶ 7.) Three days later, on August 29, 2013, another click-to-dial call was placed to Messina. (Pls.' LR 56.1 ¶ 8.) This time, when Green Tree asked for call back permission, Messina replied, "Yeah. Have them call me when they have an answer, not when they want me to sit on the phone so they can read notes and see and try to figure this out. It doesn't take that long. I work for a bank. I do this for a living." (Pls.' LR 56.1 ¶ 8; dkt. 107-1, Sartell Decl., Ex. 7 (Telephone Tr.) at 28:24–29:5.) She reiterated this same sentiment later in the conversation:

Green Tree: We'll give you a call back. Is that okay?

Messina: Yes.

Green Tree: Okay. I do apologize.

Messina: When somebody has an answer, not to call me and go you're short $400-some when [sic ]—researched this because I've given enough information.

(Telephone Tr. at 29:21–30:3.) The narrative description in the account notes indicate this nuance, yet the call back permission field only contains a "Y." (Green Tree Account Notes at GT0035.) From September 17, 2013 through October 14, 2013, a number of unanswered calls (click-to-dial and dialer) were placed to Messina. (Green Tree Account Notes at GT0029–33; Call Summary Chart at 2–7.)⁶ On October 15, 2015, Green Tree made contact with Messina and, according to Green Tree's account notes, Messina made a payment and provided call back permission, a fact that Messina appears to dispute. (Pls.' LR 56.1 ¶ 15; Green Tree Account Notes at GT0028–29; dkt. 107-2, Messina Decl. ¶ 7.)⁷ This same pattern repeated the next month, until Messina answered a click-to-dial call on November 15, 2013. (Pls.' LR 56.1 ¶ 16; Green Tree Account Notes at GT0024–28.) During the call, a call center agent told Messina, "And no more calls for you. Okay. That was me calling you those times just to let you know." (Telephone Tr. at 93:3–5.) Nothing in the transcript reflects that Messina was asked for or provided call back permission; nonetheless Green Tree's account notes indicate that she provided such permission during that call. (Green Tree Account Notes at GT0024.) Following this conversation, on November 19, 2013, Green Tree placed one more dialer call to Messina, during which she communicated to Green Tree that it only had permission to call back her attorney. (Pls. LR 56.1 ¶ 16; Telephone Tr. at 95:13–15; Green Tree Account Notes at GT0024.)

During much of this time period, Messina was making payments to Green Tree over the telephone because, as a result of her default, she was not permitted to make same-day payments in any other manner. (See Pls.' LR 56.1 ¶ 42; dkt. 107-2, Messina Decl. ¶¶ 26–28.) When she did so, Green Tree required Messina to pay "a $12 Speedpay vendor's fee."...