A plaintiff who had executed a mortgage loan from Bank of America, N.A. on April 16, 2007, was unable to make adequate payments to the bank. This resulted in the bank filing a foreclosure complaint against the plaintiff. Post this, the plaintiff filed for bankruptcy under Chapter 13 in January 2013, which resulted in automatic stay affording protection against any collection actions. In June 2013, a modification was made in Chapter 13 bankruptcy by the plaintiff, wherein they proposed to surrender the home to Bank of America, N.A. against their claims. This modified plan was confirmed in June 2013, by the bankruptcy court.
This debt was later sold off by Bank of America, N.A. to BSI Financial Services, Inc. To recover the dues, BSI Financial Services, Inc. sent a Notice of Servicing Transfer to the plaintiff on October 1, 2014. According to the notice, the plaintiff is expected to send any payments due on or after the said date to BSI Financial Services, Inc. A disclaimer was also attached to it, according to which:
In case you have filed for bankruptcy, the “automatic stay” comes into effect in a bankruptcy case, or you have received a discharge for personal liabilities for obligations specified in the letter, BSI Financial Services, Inc. will not and does not intend to pursue collection of said obligation from the plaintiff personally.
After six months of sending the above-mentioned notice, BSI Financial Services, Inc. made over ten phone calls to the plaintiff’s cell phone, nearly five calls to the home telephone and more than 10 voicemails. The plaintiff responded to BSI Financial Services, Inc. and asked them to stop the constant harassment since they had already filed for bankruptcy. But despite the request, the calls continued. According to the plaintiff’s complaint against BSI Financial Services, Inc. they had:
- Made a minimum of 10 calls within a 2 month period (between October 15, 2014, and December 12, 2014)
- Used automatic dialer system to call the plaintiff
- Continuous calls were made to plaintiff’s cell phone
- Made regular attempt to contact the plaintiff without their consent.
BSI Financial Services, Inc. asked the court to dismiss all four different claims made by the plaintiff. Since numerous complaints were made by the plaintiff, the court also gave multiple decisions:
- Since BSI Financial Services, Inc. had acted as a debt collector, thereby violating the Fair Debt Collection Practices Act, the 1st charge of the complaint was not dismissed by the court.
- Since there was no proof that the voicemails left by BSI Financial Services, Inc. were pre-recorded, that plaintiff answered calls or that there was a delay before plaintiff got any human response, the 2nd charge was dismissed.
- The 3rd count was not dismissed as the defendant, BSI Financial Services, Inc., had indulged in acts of collection, assessing and claims of recovery by sending the plaintiff letters and numerous phone calls all amounting to the collection. Due to these actions, the defendant had willfully violated the bankruptcy automatic stay.
- A further analysis was required to assess whether the defendant had violated the Illinois Consumer Fraud Deceptive Business Practices Act for the 4th
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