Demona Freeman v. Ocwen Loan Servicing, LLC

U.S. Court of Appeals for the Seventh Circuit
Demona Freeman v. Ocwen Loan Servicing, LLC, 113 F.4th 701 (7th Cir. 2024)

Demona Freeman v. Ocwen Loan Servicing, LLC

Opinion

                               In the

    United States Court of Appeals
                 For the Seventh Circuit
                    ____________________
No. 23-2512
DEMONA FREEMAN,
                                                 Plaintiff-Appellant,
                                 v.

OCWEN LOAN SERVICING, LLC,
and BANK OF NEW YORK MELLON,
                                              Defendants-Appellees.
                    ____________________

        Appeal from the United States District Court for the
         Southern District of Indiana, Indianapolis Division.
        No. 1:18-cv-03844 — Tanya Walton Pratt, Chief Judge.
                    ____________________

     ARGUED FEBRUARY 5, 2024 — DECIDED JULY 12, 2024
                ____________________

   Before ROVNER, BRENNAN, and KIRSCH, Circuit Judges.
    KIRSCH, Circuit Judge. To finance the purchase of her home,
Demona Freeman secured a loan, which was assigned to the
Bank of New York Mellon (BNY Mellon). She fell behind on
her mortgage payments, and BNY Mellon filed a foreclosure
action against her. Freeman then filed for bankruptcy. She
later completed all payments required under her bankruptcy
plan and cured the pre-petition mortgage default. Despite
2                                                 No. 23-2512

these payments, Ocwen Loan Servicing, LLC, the servicer of
the loan, inaccurately reported the loan as delinquent and be-
gan rejecting Freeman’s monthly payments (demanding in-
stead that she cure the default). Because of Ocwen’s erroneous
reporting that Freeman defaulted on her loan, BNY Mellon
brought a second foreclosure action against her but eventu-
ally agreed to voluntarily dismiss it. Freeman subsequently
sued, alleging violations of the Fair Credit Reporting Act
(FCRA), 
15 U.S.C. §§ 1681
 et seq., and the Fair Debt Collection
Practices Act (FDCPA), 
id.
 §§ 1692 et seq. The district court
dismissed the FCRA claim and entered summary judgment
on the FDCPA claim. Because Freeman failed to state an
FCRA claim and lacks standing to bring an FDCPA claim, we
affirm.
                               I
    Demona Freeman purchased a home. To finance the pur-
chase, she secured a loan, which was assigned to the Bank of
New York Mellon and serviced by Ocwen Loan Servicing,
LLC. BNY Mellon filed a foreclosure action against Freeman
after she fell behind on her mortgage payments. Freeman then
filed for bankruptcy. She eventually made the necessary pay-
ments to obtain an order of discharge in the bankruptcy.
    However, Ocwen’s records reflected an inaccurate loan
payment due date. As a result, the loan erroneously appeared
delinquent, and Ocwen considered Freeman in default on her
loan. Ocwen told her that because of the loan’s default status,
it would only accept a payment that would cure the default,
not a regular monthly payment. And because Ocwen errone-
ously determined that Freeman defaulted on her loan, BNY
Mellon filed a second foreclosure action against her, which it
No. 23-2512                                                    3

later voluntarily dismissed after investigations and corre-
sponding corrections to the loan.
    While Freeman was considered in default on her loan, she
sent various correspondence to Ocwen, stating that it had
committed errors in servicing her loan. As part of its collec-
tion practices, Ocwen called Freeman over 12 times in a
month. It also sent agents to Freeman’s home to conduct door
knocks and leave tags on her door about once a week for
nearly three years. She later sued Ocwen, alleging violations
of the Fair Credit Reporting Act, 15 U.S.C. § 1681s-2(b), and
the Fair Debt Collection Practices Act, 15 U.S.C. § 1692k. (She
also sued BNY Mellon, but on appeal, she does not dispute
the district court’s disposition of her claims against it.) Free-
man amended her complaint twice, but the court denied her
third request to amend because the deadline for amendment
had passed, and she had not shown good cause. Ocwen
moved to dismiss, and the court granted the motion as to
Freeman’s FCRA claim. Ocwen subsequently moved for sum-
mary judgment on Freeman’s FDCPA claim, which the court
granted for lack of standing. Freeman appealed both rulings.
    On appeal, she contends that Ocwen violated the FCRA
by failing to conduct a reasonable investigation after being
notified by consumer reporting agencies (CRAs) that she dis-
puted Ocwen’s reporting of her loan as delinquent. Freeman
also asserts that Ocwen violated the FDCPA, arguing that
Ocwen’s erroneous reporting and collection practices caused
her to suffer various injuries. We take these arguments in
turn.
4                                                    No. 23-2512

                                II
                                A
    We first address Freeman’s FCRA claim. We review de
novo a district court’s dismissal for failure to state a claim,
“accepting as true all well-pleaded facts and drawing reason-
able inferences in [Freeman’s] favor.” Peterson v. Wexford
Health Sources, Inc., 
986 F.3d 746, 751
 (7th Cir. 2021) (quotation
omitted). Freeman must allege “only enough facts to state a
claim to relief that is plausible on its face,” Bell Atl. Corp. v.
Twombly, 
550 U.S. 544, 570
 (2007), but “[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclu-
sory statements, do not suffice,” Ashcroft v. Iqbal, 
556 U.S. 662, 678
 (2009).
   Under the FCRA, if a consumer notifies a CRA of a dispute
over the completeness or accuracy of information in her file,
the CRA must notify the furnisher of the information about
the dispute, and the furnisher must take several measures in
response. 15 U.S.C. § 1681i(a)(2), s-2(b). The furnisher must
investigate, report the investigation’s results to the CRA, and
take certain steps if the investigation finds the information in-
complete or inaccurate. Id. § 1681s-2(b).
    The district court did not err in dismissing Freeman’s
FCRA claim. Freeman alleged in her amended complaint that
Ocwen incorrectly reported to various CRAs that her loan
was delinquent. She also alleged that Ocwen violated the
FCRA by failing to conduct a reasonable investigation upon
receiving notice from “one or more consumer reporting agen-
cies” that she disputed Ocwen’s reporting of her loan as de-
linquent. This second allegation implies that Freeman notified
“one or more” CRAs of her dispute. But even if this allegation
No. 23-2512                                                    5

were sufficient to allege that Freeman notified CRA(s) of her
dispute, she failed to allege which CRA(s) she notified. Such
barebones allegations cannot sustain her claim.
    Her failure to identify the CRA(s) she notified does not
give Ocwen “fair notice of what the claim is and the grounds
upon which it rests.” Erickson v. Pardus, 
551 U.S. 89, 93
 (2007)
(cleaned up). “The notice [of a dispute] required in order to
trigger the furnisher’s duties under the statute does not come
from ‘any’ consumer reporting agency or ‘an’ agency, but, ra-
ther, must come from ‘the’ … consumer reporting agency that
received notice of a dispute from any consumer.” SimmsParris
v. Countrywide Fin. Corp., 
652 F.3d 355, 359
 (3d Cir. 2011)
(cleaned up). The FCRA requires that Ocwen, in response to
a particular CRA’s notification of a dispute, investigate and
report the results to that CRA. 15 U.S.C. § 1681s-2(b). Ocwen
cannot effectively respond to a claim that it failed to comply
with these obligations if it does not know which CRA’s dis-
pute notification it needed to respond to with an investiga-
tion. Thus, to survive a motion to dismiss, Freeman needed to
allege which CRA(s) she notified, but she failed to do so.
    At argument, Freeman’s counsel stated that she notified
Equifax and that Equifax, in turn, notified Ocwen of the dis-
pute. In doing so, counsel referenced a particular exhibit.
However, this exhibit does not save Freeman’s FCRA claim
from its pleading deficiencies: she first provided the exhibit at
summary judgment, after the court dismissed the FCRA
claim. Freeman also points to an exhibit attached to her com-
plaint—a letter from Ocwen’s counsel that she says included
copies of the disputes transmitted by the CRAs to Ocwen. But
the exhibit only contains a short letter from Ocwen’s counsel,
not copies of the disputes or any reference to a specific CRA.
6                                                    No. 23-2512

    Further, Freeman argues that our unpublished decision in
Lang v. TCF National Bank, 
249 F. App’x 464
 (7th Cir. 2007),
supports her claim, but Lang is inapposite. Lang alleged that
he notified a CRA that he disputed the accuracy of the credit
information in his file. 
Id. at 465
. We explained that he did not
also need to allege that the CRA notified the furnisher of the
information because “[t]he FCRA does not require a CRA to
tell a consumer when it notifies a furnisher of information about
the consumer’s dispute.” 
Id. at 466
 (emphasis in original). “As
a result a consumer may not, at the time of filing a complaint,
be in a position to allege that notification.” 
Id.
 Crucially, Lang
named the specific CRA that he notified in his amended com-
plaint. By contrast, Freeman only vaguely alleged that “one
or more” CRAs knew of her dispute. A plaintiff must allege
that she notified a CRA and identify the CRA she notified. Be-
cause Freeman failed to identify the CRA(s) she notified in her
complaint, the district court did not err in dismissing Free-
man’s FCRA claim.
                                B
    Freeman argues that the district court abused its discretion
in denying her leave to amend to cure deficiencies in her
FCRA claim. “We review a district court’s denial of leave to
amend for abuse of discretion and reverse only if no reasona-
ble person could agree with that decision.” Huon v. Denton,
841 F.3d 733, 745
 (7th Cir. 2016) (quotation omitted). Further,
when a plaintiff moves for leave to amend after the deadline
for amendment has passed, the court may apply “the height-
ened good-cause standard of [Federal Rule of Civil Proce-
dure] 16(b)(4),” Adams v. City of Indianapolis, 
742 F.3d 720
, 733–
34 (7th Cir. 2014) (quotation omitted), before considering
No. 23-2512                                                      7

whether “justice so requires” leave to amend under Rule
15(a)(2).
    The district court did not abuse its discretion in denying
Freeman leave to amend her complaint for a third time. The
court noted that it had already given her two opportunities to
amend her complaint. And it explained that it denied her
third request to amend because the deadline for amendment
had passed, and she did not meet Rule 16(b)(4)’s good cause
standard. Freeman insists that when she made the two prior
amendments, she did not have reason to believe the FCRA
claim was deficient. She observes that the deadline for
amendment expired months before Ocwen filed its motion to
dismiss. But that a plaintiff “had no reason to know that his
complaint was deficient until the defendant[] filed [its] mo-
tions to dismiss” does not establish good cause, as “a party
should always ask itself whether the complaint it wants to file
sets out a viable claim.” Alioto v. Town of Lisbon, 
651 F.3d 715, 720
 (7th Cir. 2011). The district court did not abuse its discre-
tion in denying Freeman leave to amend.
                                III
     We now turn to Freeman’s FDCPA claim. To bring a claim
in federal court, a plaintiff must have Article III standing.
TransUnion LLC v. Ramirez, 
594 U.S. 413
, 422–23 (2021). That
is, a plaintiff must show that she suffered a concrete injury in
fact that was likely caused by the defendant and redressable
by judicial relief. 
Id. at 423
. “[T]raditional tangible harms,” in-
cluding physical and monetary harms, “readily qualify as
concrete injuries.” 
Id. at 425
. An intangible harm may be con-
crete if it has “a close relationship to [a] harm[] traditionally
recognized as providing a basis for lawsuits in American
courts.” 
Id.
 In other words, an intangible injury may be
8                                                     No. 23-2512

concrete if it has a close historical or common law analogue.
Id. at 424
. The allegations in the complaint must set out her
theory of injury, though they need not identify the precise
common law analogue for the injury. See Pucillo v. Nat’l Credit
Sys., Inc., 
66 F.4th 634, 640
 (7th Cir. 2023). Then, at summary
judgment, she must “supply evidence of specific facts that,
taken as true, show each element of standing,” and “we must
look to evidence in the record to evaluate whether [the plain-
tiff] has suffered an injury in fact.” Wadsworth v. Kross, Lieber-
man & Stone, Inc., 
12 F.4th 665, 667
 (7th Cir. 2021) (cleaned up).
    Freeman asserts that she suffered concrete injuries in fact
that support standing: a tangible injury—monetary harm—
and intangible injuries. She identifies several common law an-
alogues for her intangible injuries: defamation, false light, in-
vasion of privacy, intrusion upon seclusion, and abuse of pro-
cess. But on this record, none of these harms suffices for
standing, so the district court properly dismissed her FDCPA
claim.
                                 A
    As to monetary harm, Freeman asserts that she suffered
the concrete injury of incurring legal fees to defend against
the second foreclosure. Seeking legal advice in response to a
communication concerning a disputed debt does not amount
to an injury in fact. Pierre v. Midland Credit Mgmt., Inc., 
29 F.4th 934
, 939 (7th Cir. 2022). Similarly, hiring a lawyer to resolve
confusion about the proper course of action is also insufficient
to confer standing. Brunett v. Convergent Outsourcing, Inc., 
982 F.3d 1067, 1069
 (7th Cir. 2020).
   But even if hiring an attorney and litigating the second
foreclosure action is an injury sufficient for standing, see
No. 23-2512                                                    9

Choice v. Kohn Law Firm, S.C., 
77 F.4th 636, 639
 (7th Cir. 2023),
Freeman’s argument fails as a matter of proof. The court ex-
cluded all evidence that could show she was monetarily
harmed. Freeman concedes that the court excluded a docu-
ment itemizing the attorney’s fees she incurred in the foreclo-
sure action. It excluded that document because it found that
during discovery, Freeman never disclosed the precise fee
amount indicated on the document but rather disclosed a
lower fee amount. Ocwen was consequently prejudiced be-
cause it could not conduct any discovery related to the docu-
ment.
    Freeman contends that the exclusion does not extend to
her declaration statement concerning the same fee amount in-
dicated on the itemized document. But she made the declara-
tion statement after discovery, presenting the same prejudice
problem as did the excluded itemized document. And she
cited the declaration statement in her response in opposition
to Ocwen’s motion for summary judgment, yet the court con-
cluded at summary judgment that it excluded all evidence
that she was concretely injured by incurring attorney’s fees.
The court thus excluded the declaration statement, and Free-
man cannot show monetary harm to support standing for her
FDCPA claim.
                               B
    Freeman’s common law analogues for the intangible inju-
ries she suffered are also unavailing. First, she argues that she
suffered reputational harm akin to defamation. She states that
Ocwen’s dissemination of inaccurate credit reporting dam-
aged her credit, may have caused her to be denied credit, and
discouraged her from seeking credit opportunities out of fear
of embarrassment. Freeman says that the Supreme Court’s
10                                                   No. 23-2512

decision in TransUnion, 
594 U.S. 413
, and our decision in
Ewing v. Med-1 Solutions, LLC, 
24 F.4th 1146
 (7th Cir. 2022),
support her analogy to defamation. In TransUnion, class mem-
bers were listed in their credit reports as a “potential match”
to a name on a list of terrorists, drug traffickers, and other
criminals. 594 U.S. at 419–20. TransUnion disseminated these
credit reports to third parties; this publication of the mislead-
ing credit reports to the third parties caused the class mem-
bers to suffer an injury closely related to the reputational
harm associated with defamation, making the injury suffi-
ciently concrete for standing. 
Id.
 at 432–33.
    But in Ewing, we made clear that to establish the publica-
tion element of a defamation analogue, “the third party must
understand the defamatory nature of the communication.” 24
F.4th at 1154. In that case, we concluded that the third party
understood the defamatory nature of the communication
(debt collectors’ reports) because the third party included the
debts in the plaintiffs’ credit reports, and its assessment of the
plaintiffs’ creditworthiness considered whether a debt was
disputed. Id. By contrast, Freeman provides no evidence that
a third party understood the defamatory significance of
Ocwen’s communication. The record indicates that Quicken
Loans and Chase Card requested her credit report from
TransUnion and that those reports contained Ocwen’s inac-
curate reporting. The record also contains Freeman’s declara-
tion statement that OneMain denied her a loan and her hus-
band’s statement that her credit “is messed up because of this
whole situation.” R. 336-25 at 15:2–3. But none of this evidence
amounts to specific facts establishing that Ocwen dissemi-
nated the inaccurate reporting to a third party, such as
TransUnion, who understood the defamatory significance of
the inaccurate reporting. It instead merely shows that
No. 23-2512                                                  11

TransUnion included Ocwen’s inaccurate reporting in its own
credit reports, indicating nothing about TransUnion’s or an-
other third party’s assessment of her creditworthiness. Fur-
ther, her statement that OneMain, a fourth party, denied her
a loan is not enough. Nor is her husband’s vague statement
about damage to her credit, referencing no particular third
party. This defamation analogue therefore fails.
    Freeman’s other defamation analogue and her false light
analogue fail, too. She argues that Ocwen’s foreclosure filings,
which falsely communicated to the public that she was in de-
fault on her loan, caused an injury closely related to defama-
tion and false light, though her analysis analogizes only to
false light. She alleged that Ocwen created an “adverse public
record” and that for the rest of her life, she will have to “en-
dure that Foreclosure record and engage in painful and em-
barrassing discussions and explanations as to why that record
exists.” R. 59 at 32 ¶¶ 216–17. But we have made clear in our
FDCPA case law that anxiety, embarrassment, and stress are
not concrete injuries in fact. Wadsworth, 
12 F.4th at 668
. Fur-
ther, an element of false light is that the tortfeasor “had
knowledge of or acted in reckless disregard as to the falsity of
the publicized matter and the false light in which the other
would be placed.” Restatement (Second) of Torts § 625E(b)
(1977). But Freeman does not assert that Ocwen had
knowledge of or acted in reckless disregard as to the falsity of
the foreclosure action and the false light in which she would
be placed. She therefore lacks standing for an FDCPA claim
for embarrassment stemming from the foreclosure filings.
  Next, Freeman argues that she has standing to pursue an
FDCPA claim for Ocwen’s phone calls and “door knocks,”
which she asserts caused an intangible injury closely related
12                                                  No. 23-2512

to invasion of privacy or intrusion upon seclusion. But this
injury is insufficient for standing. She says that Ocwen called
her 12 times in a month and completed numerous door
knocks, causing her to live in fear of losing her home. As Free-
man notes, we stated in Gadelhak v. AT&T Services, Inc., 
950 F.3d 458
 (7th Cir. 2020), a Telephone Consumer Protection Act
case, that annoyance caused by unwanted text messages can
be analogous to invasion of privacy, such as when the texts
are sent “with such persistence and frequency as to amount
to a course of hounding the plaintiff.” 
Id. at 462
 (quotation
omitted). But we subsequently stated in Wadsworth that “it is
not enough for a plaintiff to be ‘annoyed’ or ‘intimidated’ by
a[n] [FDCPA] violation.” 
12 F.4th at 668
. And “stress by itself
with no physical manifestations and no qualified medical di-
agnosis [does not] amount to a concrete harm.” Pennell v.
Global Tr. Mgmt., LLC, 
990 F.3d 1041, 1045
 (7th Cir. 2021). Free-
man does not contest the district court’s exclusion of her med-
ical records, nor does she argue on appeal that she suffered
physical symptoms of her fear or received any related medical
diagnosis. She is thus left without any admissible evidence
supporting invasion of privacy or intrusion upon seclusion as
an analogue for the fear she suffered, and her fear alone can-
not carry her FDCPA claim. Pierre, 29 F.4th at 939 (“[W]orry,
like confusion, is insufficient to confer standing in [the
FDCPA] context.”).
    Finally, Freeman argues that she suffered psychological
pressures from defending against the foreclosure and that this
injury is akin to abuse of process. But she lacks standing to
bring a claim for this injury for the same reason she lacks
standing to bring a claim for fear: she points to no physical
manifestation of the pressures or any related medical diagno-
sis, and psychological harm, standing alone, cannot amount
No. 23-2512                                                      13

to an Article III injury in fact. Pennell, 
990 F.3d at 1045
. Because
Freeman cannot establish under any of her theories that she
suffered a concrete injury, the district court properly dis-
missed her FDCPA claim for lack of standing.
                                                         AFFIRMED


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