Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Heng v. Heavner, Beyers & Mihlar, LLC

United States Court of Appeals, Seventh Circuit

February 17, 2017

KlMTYLERY HENG, et al., Plaintiffs-Appellants,
v.
Heavner, Beyers & Mihlar, LLC, Defendant-Appellee. JUSTIN GIERKE, on behalf of plaintiff and a class, Plaintiff-Appellant,
v.
Codilis & Associates, P.C., Defendant-Appellee. Laura Zuniga, et al., Plaintiffs-Appellants,
v.
Pierce and Associates, Defendant-Appellee.

          Argued October 27, 2016

         Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 15 C 08454 - Charles R. Norgle, Judge. No. 15 C 11618 - Robert W. Gettleman, fudge. No. 16 C 01897 - Milton I. Shadur, fudge.

          Before WOOD, Chief Judge, and BAUER and MANION, Circuit Judges.

          BAUER, Circuit Judge.

         In these three separate cases consolidated on appeal, appellants challenge the dismissal of their claims brought under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et. seq. Appellants in Heng, et al., v. Heavner, et al., separately challenge the district court's order striking an exhibit, and also challenge the district court's denial of their request for leave to amend. We affirm.

         I. BACKGROUND

         We need not discuss the specifics for each individual case because the underlying facts are consistent (the exception to this is the procedural history in Heng). Appellants obtained a Federal Housing Administration-insured residential mortgage loan and subsequently defaulted due to financial hardship.[1]Appellees are law firms that represent the loan servicing agents; they filed foreclosure complaints in Illinois state court against appellants. These complaints generally followed the statutory complaint template set forth in Section 15-1504(a) of the Illinois' Mortgage Foreclosure Law. See 735 Ill.Comp.Stat. 5/15-1504(a). The template includes the following language: "Names of defendants claimed to be personally liable for deficiency, if any[, ]" and, "[a] personal judgment for a deficiency, if sought." Id. at 5/15-1504(a)(3)(M), (3)(iii). Appellees included both allegations in their foreclosure complaints, and identified appellants to be personally liable for any deficiency.

         Appellants filed suit against appellees, alleging violations of the FDCPA. According to the complaints, the FHA does not authorize deficiency judgments where, as here, appellants suffered a financial hardship. Attached as an exhibit to their complaints, appellants included a letter from the FHA responding to a Freedom of Information Act request. In part, the FHA's response provided:

There have been zero foreclosed FHA loans in Illinois in which the pursuit of a deficiency judgment was authorized. FHA is not currently pursuing deficiency judgments[T]he Department has determined it is not [in] the best interests of FHA to routinely seek deficiency judgments in connection with [claims without conveyance of title or "CWCOT"] claims. Therefore, FHA is not requesting that the mortgagees pursue any deficiency judgments in connection with CWCOT claims, unless FHA makes a special request pursuant to 24 C.F.R. [§] 203.369. ... Since FHA is not currently pursuing deficiency judgments, we do not maintain any reports tracking deficiency judgments.

         Appellees filed a motion to dismiss, which the district court granted under Federal Rule of Civil Procedure 12(b)(6). Appellants filed timely notices of appeal. This consolidated appeal followed.

         We turn to certain facts pertaining only to the Heng case. As stated above, appellants filed a complaint and appellee filed a motion to dismiss. Shortly thereafter, appellants filed a first amended complaint on December 12, 2015. On December 23, 2015, appellee filed a motion to dismiss the amended complaint. Appellants received a letter dated December 23, 2015, from appellants' loan servicing agent who was represented by appellee. This letter provided an explanation about deficiency judgments and an offer to waive a deficiency judgment.

         On February 5, 2016, appellants filed a response to the second motion to dismiss, which included the letter as an exhibit and allegations concerning it. Appellee filed both a reply and a motion to strike on February 19, 2016. Appellants were not given an opportunity to oppose the motion to strike, which the district court granted without comment.

         On February 25, 2016, appellants filed a motion to reconsider the district court's order granting appellee's motion to strike and, alternatively, requested leave to amend the first amended complaint to include the exhibit. On March 23, 2016, the district court denied appellants' motion to reconsider and the alternative request for leave to amend, and granted appellee's motion to dismiss.

         II. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.