IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

Lou Davis and Tameka Davis, 

formerly known as Tameka 

Smith, 

Plaintiffs, 

) 

) 

) 

)

)

) 

 v. ) No. 20 C 4816 

Bank of America, N.A. 

Defendant. 

)

)

)

) 

Memorandum Opinion and Order 

 The complaint in this case alleges that Bank of America, N.A. 

(“BANA”) violated the Fair Credit Reporting Act (“FCRA”), 15 U.S.C 

§ 1681s-2(b), § 1681n, and/or § 1681o by reporting to the three major 

credit agencies a debt it claimed plaintiffs owed it when, in fact, 

plaintiffs owe BANA nothing. Specifically, plaintiffs claim that 

BANA failed reasonably to investigate the disputed debt; provided 

false information to the credit agencies regarding the disputed debt; 

and was willful or negligent in these violations. Additionally, 

plaintiffs bring a claim for declaratory and injunctive relief under 

Illinois law, asking me to declare that they do not owe BANA the 

debt in question and enjoining BANA for further efforts to enforce 

it. BANA has moved to dismiss the complaint. I deny the motion. 

 The events giving rise to this lawsuit are not in dispute. 

Plaintiffs formerly owned a condominium in Chicago that secured two 

Case: 1:20-cv-04816 Document #: 24 Filed: 01/25/21 Page 1 of 6 PageID #:155
2 

loans: a first mortgage held or serviced by Wells Fargo, and a second 

mortgage held by BANA. After plaintiffs fell behind on the first 

mortgage, Wells Fargo filed a foreclosure action in August of 2017. 

BANA was named as a defendant in the action and appeared in the case. 

In September of 2018, a judgment of foreclosure was entered and the 

property sold. The sale was approved, and the foreclosure judgment 

became final, in April of 2019, after which a judicial deed was 

issued, delivered and recorded. Compl. at ¶¶ 7-14. 

Nothing in the final judgment of foreclosure reserved BANA’s 

right to pursue a claim for money damages against plaintiffs. Yet 

BANA has sought collection of over $9,000 that it claims plaintiffs 

owe on a Note accompanying the second mortgage, and it has reported 

the disputed debt to Equifax, TransUnion, and Experian, damaging 

plaintiffs’ credit. Further, plaintiffs claim to have wasted time 

and money in an effort to correct the information on their credit 

report. 

BANA’s motion to dismiss primarily challenges the parties’ 

underlying dispute—whether plaintiffs owe an enforceable debt to 

BANA—as indeed, plaintiffs’ claims go nowhere if the debt is valid. 

Plaintiffs claim that any debt they may have owed BANA in connection 

with the second mortgage became unenforceable when the judicial deed 

was issued pursuant to the final judgment of foreclosure on the first 

mortgage, which did not specify that BANA retained the right to 

Case: 1:20-cv-04816 Document #: 24 Filed: 01/25/21 Page 2 of 6 PageID #:156
3 

pursue a claim for deficiency against plaintiffs. Plaintiffs point 

to 735 ILCS 5/15-1509(c), which states: 

Claims Barred. Any vesting of title by a consent 

foreclosure pursuant to Section 15–1402 or by deed 

pursuant to subsection (b) of Section 15–1509, unless 

otherwise specified in the judgment of foreclosure, shall 

be an entire bar of (i) all claims of parties to the 

foreclosure and (ii) all claims of any nonrecord claimant 

who is given notice of the foreclosure in accordance with 

paragraph (2) of subsection (c) of Section 15–1502, 

notwithstanding the provisions of subsection (g) of 

Section 2–1301 to the contrary. 

735 Ill. Comp. Stat. Ann. 5/15-1509. 

Defendant argues that notwithstanding this section’s language 

facially barring “all claims,” upon “vesting of title...by deed 

pursuant to subsection (b) of Section 15-1509,” its claim for 

deficiency survived the final judgment of foreclosure because that 

claim arises from a “separate contractual obligation” plaintiffs owe 

under a Note that accompanied the second mortgage. In defendant’s 

view, the foreclosure action—which culminated in a final judgment of 

foreclosure and vesting of title by deed—had “no effect” on BANA’s 

ability to pursue a contractual remedy under the Note; it merely 

extinguished BANA’s collateral interest in plaintiffs’ condominium. 

But the plain language of § 15-1509(c) does not allow for that 

interpretation. The statute expressly states that the vesting of 

title by deed “shall be an entire bar of...all claims” of parties to 

the foreclosure, and Illinois Courts have held that the statute means 

what it says. BMO Harris Bank Nat’l Ass’n v. LaRosa, 2017 IL App 

(1st) 161159, ¶ 19, 78 N.E.3d 511, 515 (Ill. App. 2017) (declining 

Case: 1:20-cv-04816 Document #: 24 Filed: 01/25/21 Page 3 of 6 PageID #:157
4 

to allow post-foreclosure challenge to deficiency claim, noting that 

“section 15-1509(c)’s language is very clear—all claims of the 

parties to the foreclosure are barred.”). See also Adler v. Bayview 

Loan Servicing, LLC, 2020 IL App (2d) 191019, ¶ 19, ---N.E.3d--- 

(Ill. App. Ct. 2020) (deficiency judgments are not excepted from 

rule that “all claims” are barred); Taylor v. Bayview Loan Servicing, 

LLC, 2019 IL App (1st) 172652, ¶ 12, ---N.E.3d--- (Ill. App. Ct. 

2019) (statutory language barring “all claims” is “clear and 

unambiguous” (quoting U.S. Bank National Ass’n v. Prabhakaran, 2013 

IL App (1st) 111224, ¶ 30, 369 Ill. Dec. 220, 986 N.E.2d 169 (Ill. 

App. Ct. 2013)). 

BANA’s only response to these cases is to point out that they 

did not involve the exact claim at issue here: a deficiency claim 

brought by a junior lienholder based on a note accompanying a 

mortgage. But BANA offers no reasoned explanation for why this 

specific scenario falls outside the scope of the bar, and I discern 

none. At any rate, In re Dancel, No. 18 BK 01399, 2019 WL 521177, at 

*1 (Bankr. N.D. Ill. Feb. 5, 2019), did involve a deficiency claim 

brought by a junior lienholder, and the bankruptcy court held that 

it was barred by § 15-1509(c). 

BANA’s citation to 735 ILCS 5/15-1511, which it cites for the 

proposition that “[F]oreclosure of a mortgage does not affect a 

mortgagee’s rights, if any, to obtain a personal judgment against 

any person for a deficiency,” does not change the analysis. To the 

Case: 1:20-cv-04816 Document #: 24 Filed: 01/25/21 Page 4 of 6 PageID #:158
5 

contrary, BANA’s argument borders on deceptive advocacy, as it 

selectively omits the beginning of the cited provision, which reads 

in full: “Except as expressly prohibited by this Article, foreclosure 

of a mortgage does not affect a mortgagee’s rights, if any, to obtain 

a personal judgment against any person for a deficiency.” (Emphasis 

added). Because section 15-1511 articulates just such an express 

prohibition, defendant’s omission of that phrase is not well taken. 

The remaining grounds BANA asserts for dismissal of plaintiff’s 

FCRA claim require little discussion. The first is that plaintiffs 

fail to plead adequately that BANA’s reporting to the credit agencies 

was “inaccurate and did not comply with industry standards.” But a 

report stating that plaintiffs owed BANA money when in fact they 

owed it none is certainly inaccurate. And even assuming that BANA’s 

compliance with “industry standards” is relevant to plaintiffs’ 

claims, that is not an issue that can be resolved at this stage. 

BANA’s final argument is that plaintiffs suffered no damages as a 

result of the alleged FCRA violations. This argument, too, is 

premature at this stage. 

Lastly, BANA claims that plaintiffs are not entitled to 

injunctive or declaratory relief because they have not pled an 

actionable claim under the FCRA. That argument lacks merit for the 

reasons stated above. Moreover, there is no question that plaintiffs 

have articulated an actionable dispute over whether they owe any 

debt to BANA, and if plaintiffs can establish that they do not, they 

Case: 1:20-cv-04816 Document #: 24 Filed: 01/25/21 Page 5 of 6 PageID #:159
6 

may be entitled to a declaration to that effect. See Tepper v. Cty. 

of Lake, 598 N.E.2d 361, 362 (1992). Similarly, if the dunning 

letters they claim to have received suggest that a nonexistent debt 

is owed, plaintiffs may be entitled to an order enjoining BANA from 

causing additional such letters to be sent. 

For the foregoing reasons, the motion to dismiss is denied. 

 ENTER ORDER:

 

_____________________________ 

 Elaine E. Bucklo

 United States District Judge 

Dated: January 25, 2021 

Case: 1:20-cv-04816 Document #: 24 Filed: 01/25/21 Page 6 of 6 PageID #:160