Avdo Hukic v. Aurora Loan Services

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3826
A VDO H UKIC,
Plaintiff-Appellant,
v.
A URORA L OAN S ERVICES and O CWEN
L OAN S ERVICING,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 4950—Virginia M. Kendall, Judge.
A RGUED JANUARY 23, 2009—D ECIDED N OVEMBER 20, 2009
Before B AUER, E VANS, and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. Avdo Hukic obtained a six-
figure mortgage with an interest rate of 10.65%. It
allowed him to pay his taxes and insurance premiums
directly to the entities owed payment, but only if he
promptly furnished proof to his mortgage servicer that
he was making those payments. Because Hukic did not
submit such proof, Aurora Loan Services, and later
Ocwen Loan Servicing, also made tax and insurance
2 No. 07-3826
payments on Hukic’s behalf. They notified Hukic of a
corresponding increase in his monthly amount due, but
Hukic did not change the amount he paid to them each
month. The amounts Hukic owed for taxes and insur-
ance and a deficiency that resulted from the incorrect
processing of one money order led Aurora and Ocwen
to report Hukic as delinquent to consumer reporting
agencies. Although it turns out that Hukic had been
paying taxes directly to the county all along, we must
affirm the judgment in the defendants’ favor because
Hukic did not comply with the terms of his agreement
that required him to submit proof of payment. Aurora
and Ocwen were therefore justified when they reported
that Hukic had defaulted on his loan. We affirm the grant
of summary judgment in favor of the defendants on
Hukic’s claims for breach of contract, tortious interference,
and violation of the Fair Credit Reporting Act (FCRA).
We also affirm the dismissal of Hukic’s claims for defama-
tion and intentional infliction of emotional distress.
I. BACKGROUND
Avdo Hukic obtained a mortgage from Life Savings
Bank in 1997. The mortgage was for $119,700 and had an
interest rate of 10.65%. The mortgage agreement
required that he make monthly payments of $1,334.42
as well as pay taxes, insurance premiums, and other
charges or fines. The agreement allowed Hukic as the
borrower to pay the taxes and insurance premiums
directly to the entities owed payment, provided that
Borrower shall promptly furnish to Lender all
notices of amounts to be paid under this para-
No. 07-3826 3
graph. If Borrower makes these payments directly,
Borrower shall furnish to Lender receipts evid-
encing the payments.
Hukic got off to a good start, making monthly pay-
ments of $1,335 in a timely fashion. Then, in April 1998,
Hukic submitted a money order made out in the amount
of $1,335 to Life Savings Bank. All should have been
fine, as the amount was fifty-eight cents more than what
he was required to pay, and he submitted it to the bank
on time. For some reason, however, the money order
was only processed as a payment of $1,135, and the
bank only received that amount.
Life Savings Bank assigned Hukic’s loan to Aurora
Loan Services the next month and forwarded $1,135 as
Hukic’s April payment. Aurora notified Hukic that his
April payment was deficient and asked Hukic to remit
$200 and request a refund from the money order’s is-
suer. Hukic did not do so, later saying he did not have the
time to do that. When Hukic made monthly payments to
Aurora thereafter, Aurora always applied his payment first
to the amount that was due from the previous month, so
Aurora’s records continued to show Hukic as one month
delinquent.
When Life Savings Bank assigned Hukic’s loan to
Aurora, it also advised Aurora that Hukic’s hazard insur-
ance had expired. Aurora wrote to Hukic and told him
that if evidence of current insurance was not received
within sixty days, Aurora would set up an escrow
account to pay the $1,716 annual premium for the up-
coming policy year, pursuant to the terms of the mortgage.
4 No. 07-3826
Aurora did not receive evidence of up-to-date hazard
insurance from Hukic, so it advanced the funds. Aurora
also paid Hukic’s property taxes of $1,927 for the first
half of 1999 because Hukic had not submitted evidence
that he was paying the taxes on his own. Pursuant to
the terms of the mortgage, Aurora set up an escrow
account for the reimbursement of the property taxes.
Aurora notified Hukic of the increases to the amount
due each month as a result of these accounts, but he
continued to make monthly payments of $1,335. Aurora
reported Hukic’s loan as delinquent to consumer credit
reporting agencies in November of 1999.
About four months later, Aurora assigned Hukic’s loan
to another company, Ocwen Loan Servicing. Records
Ocwen received indicated that Hukic had not made
his January mortgage payment. On March 13, 2000,
Ocwen mailed Hukic a notice of default. It stated that
he needed to pay $7,261.16 by April 12, 2000 to cure the
deficiency in his account, and that failure to cure
the default could result in foreclosure proceedings.
On September 8, 2000, Ocwen advanced $1,116 to pay
Hukic’s property taxes and made an adjustment to his
escrow account. Ocwen also informed Hukic that month
that if he had paid the property taxes directly to the
county without informing Aurora or Ocwen, he should
obtain a refund of the property taxes and then remit the
refund to Ocwen to cure the deficiency in the escrow
account. Hukic did neither. When Ocwen did not
receive proof of payment, it advanced funds on two
occasions in 2001 to pay Hukic’s property taxes and
adjusted his escrow account.
No. 07-3826 5
Ocwen sent Hukic over ten notices of default during
2000 and 2001. On December 6, 2000, Ocwen wrote
Hukic and told him that his loan had been transferred to
Ocwen’s Early Intervention Department for review and
possible foreclosure. On January 11, 2001, Hukic’s
counsel wrote to Aurora. Counsel stated that Hukic had
made timely payments to Aurora and was paying his
property taxes directly, and also that Hukic had
been unable to refinance his home due to negative infor-
mation from Aurora on his credit reports. Counsel wrote
a similar letter to Aurora later in the year.
On November 7, 2001, foreclosure proceedings began
against Hukic in Illinois state court. On May 16, 2003,
the state court wrote in an order that Ocwen had agreed
“to accept reinstatement of monthly payments and the
parties will continue to negotiate the escrow issue.” A
month later, in an order dated June 16, 2003, the state
court dismissed the foreclosure proceedings and stated
that Hukic had tendered proof of payment of real estate
taxes for 2002 and the first installment of 2003. Hukic
later prepared an application for a property tax refund
and directed that the county pay a refund of the
duplicate property tax payments to Ocwen.
On April 1, 2004, Hukic notified TransUnion, a credit
reporting agency, that he disputed the status of his
Ocwen account and asked TransUnion to investigate.
One month later, TransUnion informed Hukic that the
negative credit information reported by Ocwen had
been deleted from his credit report. Hukic’s later credit
reports reflected an adverse account associated with
Aurora but not with Ocwen.
6 No. 07-3826
Hukic filed suit against Aurora and Ocwen in
Illinois state court on July 1, 2005. He maintained that he
had been denied refinancing, loans and credit as a result
of false information conveyed by Aurora and Ocwen to
consumer reporting agencies. Aurora timely removed
the case to federal court, and Hukic did not seek to
remand the case. The district court granted the defendants’
motion to dismiss seven of the counts alleged in the
complaint. It later granted summary judgment to the
defendants on the remaining claims for violation of the
Fair Credit Reporting Act, breach of contract, and tortious
interference with prospective economic advantage.
Hukic appeals.
II. ANALYSIS
A. Subject Matter Jurisdiction
Hukic’s first challenge is to our jurisdiction. He main-
tains that the notice of removal failed to establish
diversity jurisdiction on its face, and, therefore, the
federal court never had subject matter jurisdiction. Al-
though Hukic did not raise this argument in the district
court, it is always a federal court’s responsibility to
ensure it has jurisdiction, so we turn to that question
first. See Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006).
We analyze jurisdiction based on the events at the time
the case is brought. Grupo Dataflux v. Atlas Global Group,
L.P., 541 U.S. 567 (2004); Olympia Exp., Inc. v. Linee Aeree
Italiane, S.P.A., 509 F.3d 347, 349 (7th Cir. 2007). When a
case is initially filed in state court and then removed to
federal court, the time-of-filing rule means that we
No. 07-3826 7
analyze our jurisdiction at the time of removal, as that is
when the case first appears in federal court. Wisc. Dep’t
of Corrs. v. Schacht, 524 U.S. 381, 391 (1998); Tropp v.
Western-Southern Life Ins. Co., 381 F.3d 591, 595 (7th Cir.
2004).
The federal removal statute authorizes a defendant to
remove “any civil action brought in a State court of which
the district courts of the United States have original
jurisdiction.” 28 U.S.C. § 1441(a); see Wisc. Dep’t of Corrs.,
524 U.S. 381 at 386. One circumstance in which federal
courts have original jurisdiction is when the lawsuit
is between “citizens of different States” and the amount
in controversy is over $75,000. 28 U.S.C. § 1332(a)(1).
Paragraph four of Aurora’s notice of removal invoked
the federal court’s jurisdiction on that basis.1 The
notice also stated that Hukic was an Illinois citizen and
that Aurora “is a Delaware limited liability company
and has its principal place of business in Colorado.” But
for diversity jurisdiction purposes, the citizenship of a
limited liability company is the citizenship of each of its
members. Thomas v. Guardsmark, LLC, 487 F.3d 531, 534 (7th
Cir. 2007); Hicklin Eng’g, L.C. v. Bartell, 439 F.3d 346, 347
(7th Cir. 2006); cf. 28 U.S.C. § 1332(c)(1) (a corporation is
a citizen of the states of its incorporation and principal
place of business). The notice of removal therefore gave
two pieces of irrelevant information about Aurora (the
state of its principal place of business and that it was a
Delaware company) while failing to provide the infor-
1
Ocwen, a Florida citizen, had not been served at the time.
8 No. 07-3826
mation critical to determining its citizenship: the citizen-
ship of its members.
Aurora has informed us on appeal that its sole member
is Lehman Brothers Bank. At the time of removal, Lehman
Brothers Bank (it has since been renamed) was a
federally chartered savings association. See Thomas, 487
F.3d at 534 (assessing citizenship of limited liability com-
pany’s members at time notice of removal filed). In con-
trast to state-chartered corporations, the citizenship of
federally chartered corporations and savings associations
has not always been straightforward. The Supreme Court
held in St. Louis & San Francisco Ry. Co. v. James, 161 U.S.
545, 562 (1896), that a state-chartered corporation is a
citizen of the state in which it was chartered for
diversity jurisdiction purposes. The Court later held that
a corporation chartered pursuant to an Act of Congress
with activities in different states, on the other hand, was
not a citizen of any state for diversity jurisdiction pur-
poses. Bankers Trust Co. v. Texas & Pacific Ry. Co., 241 U.S.
295, 309-10 (1916). In 1958, Congress enacted a provision
now codified at 28 U.S.C. § 1332(c)(1) that made a corpora-
tion a citizen of the states of its incorporation and the
location of its principal place of business. This provision
meant that local companies could no longer bring suit in
federal court on the basis of a corporate charter that had
been obtained in another state. See A.I. Trade Finance, Inc. v.
Petra Int’l Banking Corp., 62 F.3d 1454, 1458 (D.C. Cir. 1995).
With Bankers Trust in the background, many courts
concluded that 28 U.S.C. § 1332(c)(1) applied only to
state corporations and not to federally chartered corpora-
tions or associations. The result for these courts was
No. 07-3826 9
that, unless a specific statutory provision dictated other-
wise, a federally chartered savings association was not
a citizen of any state, meaning it was not eligible for
diversity jurisdiction; courts sometimes recognized an
exception if activities were localized in one state. See, e.g.,
Loyola Fed. Sav. Bank v. Fickling, 58 F.3d 603, 606 (11th
Cir. 1995); Provident Nat’l Bank of Cal. Federal Savs. & Loan
Ass’n, 624 F. Supp. 858, 861 (E.D. Pa. 1985), aff’d, 819
F.2d 434 (3d Cir. 1987); see also Feuchtwanger Corp. v. Lake
Hiawatha Fed. Credit Union, 272 F.2d 453, 455-56 (3d Cir.
1959) (discussing localization exception in case not gov-
erned by § 1332(c)).
Congress has now stepped in. After this case had been
removed to federal court, Congress added a provision to
the United States Code that states:
In determining whether a Federal court has diver-
sity jurisdiction over a case in which a Federal
savings association is a party, the Federal savings
association shall be considered to be a citizen only
of the State in which such savings association
has its home office.
12 U.S.C. § 1464(x). Although the provision became
effective after the removal here, the defendants maintain
that 12 U.S.C. § 1464(x) applies in this case with the
result that Lehman was a citizen of Delaware, where it
had its home office. Aurora points in support to the
Supreme Court’s pronouncement that “[i]ntervening
statutes conferring or ousting jurisdiction” apply in
pending cases, “whether or not jurisdiction lay when the
10 No. 07-3826
underlying conduct occurred or when the suit was filed.”
Landgraf v. USI Film Products, 511 U.S. 244, 274 (1994); see
First Midwest Bank v. Metabank, No. 06-4114, 2007 WL
913893, at *3 (D.S.D. Mar. 23, 2007) (applying § 1464(x) to
case pending at time of provision’s passage). But see
World Savs. Bank, FSB v. Wu, No. 08-00887, 2008 WL
1994881, at *2 (N.D. Cal. May 5, 2008) (declining to apply
§ 1464(x) retroactively and concluding court lacked
subject matter jurisdiction).
There is another complication, though, which the
parties did not discuss. That is the fact that even if
§ 1464(x) applies to cases where the removal occurred
before the provision took effect, the provision’s
text says that it applies in cases where a federal savings
association “is a party.” A “party” is “[o]ne by or against
whom a lawsuit is brought.” See U.S. ex rel Eisenstein v.
City of New York, 129 S. Ct. 2230, 2234 (2009)) (citing
Black’s Law Dictionary 1154 (8th ed. 2004)). In this case,
Hukic sued Aurora (and Ocwen), not Lehman, so it is
not clear that § 1464(x) controls Lehman’s citizenship. Cf.
NetJets Aviation, Inc. v. LHC Commc’ns, LLC, 537 F.3d 168,
176 (2d Cir. 2008) (stating members of a limited liability
company are generally not liable for the entity’s debts);
see also Creaciones Con Idea, S.A. de C.V. v. Mashreqbank
PSC, 232 F.3d 79, 82-83 (2d Cir. 2000) (finding use of
“party” in 12 U.S.C. § 632 conferred federal jurisdiction
only when federally chartered corporation was a party
to banking suit and did not extend to predecessor of a
party). Congress may have wanted a federal savings
association to be considered the citizen of the state of its
home office in any diversity jurisdiction determination,
No. 07-3826 11
and the heading of the section adding § 1464(x) does
state “Clarifying citizenship of federal savings associa-
tions for federal court jurisdiction,” albeit non-binding.
Financial Services Regulatory Relief Act of 2006, Pub. L.
No. 109-351, 120 Stat. 1966, 1974 (emphasis added). Per-
haps Congress will see fit to clarify its clarification.
We can put all this aside, however, because we have
jurisdiction for another reason. A federal court also has
original jurisdiction over a cause that arises “under the
Constitution, laws, or treaties of the United States.” 28
U.S.C. § 1331. Hukic’s complaint has from the very begin-
ning stated a claim under a federal statute, the FCRA,
15 U.S.C. § 1681. The federal court had original juris-
diction over the FCRA claim.
The next question is whether the presence of state-law
claims in the complaint somehow means we lack subject
matter jurisdiction. To answer that question we turn to
28 U.S.C. § 1367. Section 1367(a) provides in relevant part:
[I]n any civil action of which the district courts
have original jurisdiction, the district courts shall
have supplemental jurisdiction over all other
claims that are so related to claims in the action
with such original jurisdiction that they form part
of the same case or controversy under Article III
of the United States Constitution.
Section 1367(c) says that “district courts may decline to
exercise supplemental jurisdiction over a claim under
subsection (a)” if certain conditions are met.
Section 1367(a), not section 1367(c), is the relevant
provision for our jurisdictional question. The Supreme
12 No. 07-3826
Court has explained: “With respect to supplemental
jurisdiction in particular, a federal court has subject-
matter jurisdiction over specified state-law claims, which
it may (or may not) choose to exercise.” Carlsbad Tech., Inc.
v. HIF Bio, Inc., 129 S. Ct. 1862, 1866 (2009). In contrast,
“ ‘the [district] court’s exercise of its discretion under
§ 1367(c) is not a jurisdictional matter.’ ” Id. at 1867 (quot-
ing 16 J. Moore et al., Moore’s Federal Practice § 106.05[4],
p. 106-27 (3d ed. 2009)). The notice of removal and
attached complaint make clear that all of Hukic’s claims
arise out of the servicing of Hukic’s mortgage loan by
Aurora and Ocwen and the reports those entities made
to credit reporting agencies, and the claims arise out of
the same case or controversy. See United Mine Workers v.
Gibbs, 383 U.S. 715, 725 (1966); Okolie v. TransUnion LLC,
No. 99-CV-2687, 1999 WL 458165, at *1 (E.D.N.Y. June 30,
1999) (finding claims for FCRA, breach of contract, and
defamation shared common nucleus of operative fact);
Wiggins v. Hitchens, 853 F. Supp. 505, 514-15 (D.D.C. 1994)
(concluding that FCRA, tortious interference with a
contract, and conspiracy claims formed part of same “case
or controversy”).
Therefore, the federal court had jurisdiction over the
claims in Hukic’s complaint. We point out that this dis-
cussion likely would have been much shorter had the
notice of removal also explicitly stated that § 1331 (along
with § 1367) provided a basis for removal. For in addi-
tion to the subject matter jurisdiction requirement for
removal, there is also the statutory requirement that the
defendant file a notice of removal “containing a short and
plain statement of the grounds for removal, together
No. 07-3826 13
with a copy of all process, pleadings, and orders served
upon such defendant or defendants in such action.”
28 U.S.C. § 1446(a). We are sometimes unable to proceed
if the notice of removal does not make the basis of
federal jurisdiction clear, such as when there is an allega-
tion in the notice that contains the parties’ residence
but not their domicile, as the latter is the critical infor-
mation we need to determine whether we have juris-
diction based on diversity. See Northern League, Inc. v.
Gidney, 558 F.3d 614, 614 (7th Cir. 2009) (per curiam)
(finding that removal notice’s allegation of residence and
not domicile presented genuine jurisdictional problem);
McMahon v. Bunn-O-Matic Corp., 150 F.3d 651, 653-54 (7th
Cir. 1998) (granting motion to amend pleadings under
28 U.S.C. § 1653 to supply missing jurisdictional details).
Here, however, the basis of original jurisdiction was
clear. The notice of removal states that the complaint
alleged a claim under the FCRA and cited the pertinent
United States Code provision, and the notice also stated
that such a claim could be brought in federal or state
court. The notice also states that all the claims arose out
of Aurora and Ocwen’s servicing of Hukic’s loan, and the
attached complaint confirmed that the state-law claims
were part of the same case or controversy as the FCRA
claim. And, unlike in Gavin v. AT&T Corp., 464 F.3d 634(7th Cir. 2006), where the defendant never argued an
alternate basis of federal jurisdiction even when
pressed, the defendants here affirmatively argued to
us—the first time that jurisdiction was raised as an
issue—that federal question jurisdiction exists. We are
satisfied that we have jurisdiction, and we will proceed
to the merits.
14 No. 07-3826
B. Procedural Arguments
1. Effect of Illinois State Court Foreclosure Action
In the first of several procedural arguments, Hukic
argues that the district court failed to give the state court
foreclosure judgment full faith and credit. See 28 U.S.C.
§ 1738; Licari v. City of Chicago, 298 F.3d 664, 666 (7th
Cir. 2002) (federal courts must give state court judg-
ments same preclusive effect they would have in state
court). Aurora and Ocwen stipulated that the foreclosure
judgment was entitled to full faith and credit, and the
district court orally granted a motion to afford the judg-
ment full faith and credit. Although it later denied a
formal motion as moot, that denial does not suggest that
the district court failed to afford the foreclosure judg-
ment its proper credit, and we find nothing in the
district court’s decision indicating it failed to do so.
Hukic’s true objection seems to be to the inter-
pretation the district court gave to the state court judg-
ment. Hukic maintains that the foreclosure judgment
meant that Aurora and Ocwen should have been col-
laterally estopped from raising any arguments in this
case concerning his performance under the terms of the
mortgage. The state court’s order reflects that resolution
of the foreclosure action was an involuntary dismissal
pursuant to Illinois Supreme Court Rule 273, and Hukic
emphasizes that the rule provides that unless specified
otherwise, “an involuntary dismissal of an action, other
than a dismissal for lack of jurisdiction, for improper
venue, or for failure to join an indispensable party, oper-
ates as an adjudication upon the merits.”
No. 07-3826 15
It is true that an adjudication on the merits is one of the
prerequisites for collateral estoppel. In re A.W., 896
N.E.2d 316, 321 (Ill. 2008); see also Barbers, Hairstyling
for Men & Women, Inc. v. Bishop, 132 F.3d 1203, 1206 (7th
Cir. 1997). It is not the only one, however. Collateral
estoppel only “bars relitigation of an issue already
decided in a prior case.” In re A.W., 896 N.E.2d at 321(quoting People v. Tenner, 794 N.E.2d 238, 248 (Ill. 2002)).
That is, the issue decided in the prior adjudication must
be identical to the one presented in the suit in question
for collateral estoppel to apply. Id.; see also Boelkes v.
Harlem Consolidated Sch. Dist. No. 122, 842 N.E.2d 790, 795
(Ill. App. Ct. 2006). Collateral estoppel does not apply
here. The foreclosure judgment bears no indication that
the issue of Hukic’s compliance with his obligations
under the mortgage had been litigated and decided in
his favor. Instead, the substance of the June 16, 2003
state court order dismissing the foreclosure action
states only that Hukic had “tender[ed] proof of payment
of Cook Co. Real Estate Taxes for Tax year 2002 and
first installment of 2003.” If that statement is relevant
here at all, it is to suggest that prior to that time, when
Aurora and Ocwen were providing information to
credit reporting agencies, Hukic had not submitted proof
of his payment of his property taxes. The May 16, 2003
state court order also does not help Hukic. It stated that
Ocwen agreed “to accept reinstatement of monthly pay-
ments.” The Illinois statute concerning reinstatement
provides that in any foreclosure of a mortgage which
has become due “through acceleration because of a
default under the mortgage,” a mortgagor may reinstate
the mortgage, 735 Ill. Comp. Stat. 5/15-1602, and
16 No. 07-3826
“[r]einstatement is effected by curing all defaults then
existing,” id. The use of “reinstatement” in the May order
therefore suggests a prior default, and an order stating
that Ocwen had agreed to reinstatement does not consti-
tute a determination that Hukic had complied with the
terms of his mortgage agreement prior to that date.
Finally, the district court’s interpretation of the state
court judgment did not violate the Rooker-Feldman
doctrine as Hukic suggests. The Supreme Court has
emphasized the narrowness of the doctrine, stating it is
“confined to cases . . . brought by state-court losers com-
plaining of injuries caused by state-court judgments
rendered before the district court proceedings com-
menced and inviting district court review and rejection
of those judgments.” Exxon Mobil Corp. v. Saudi Basic
Indus. Corp., 544 U.S. 280, 284 (2005). In short, the
doctrine prevents a party from effectively trying to
appeal a state-court decision in a federal district or
circuit court. See Lance v. Dennis, 546 U.S. 459, 463 (2006).
No one in this case is attempting to challenge the rulings
in the state court foreclosure proceeding. Aurora and
Ocwen are not the plaintiffs in the federal suit, nor do
they challenge the foreclosure judgment or seek to
resume foreclosure proceedings in this suit. The Rooker-
Feldman doctrine has not been violated.
2. Denial of Leave to File Second Amended Com-
plaint
We turn next to Hukic’s contention that the district
court abused its discretion when it denied him leave to
No. 07-3826 17
file a second amended complaint. Although leave to
amend should be freely given, Fed. R. Civ. P. 15(a), that
does not mean it must always be given. “[D]istrict courts
have broad discretion to deny leave to amend where
there is undue delay, bad faith, dilatory motive, repeated
failure to cure deficiencies, undue prejudice to the defen-
dants, or where the amendment would be futile.”
Arreola v. Godinez, 546 F.3d 788, 796 (7th Cir. 2008).
Several of those circumstances apply here. Hukic did not
seek leave to file his second amended complaint until
three days before the close of fact discovery and one
day after Hukic’s deposition. When he did so, he sought
to add eleven new causes of action against the
existing defendants as well to add a third defendant.2 Yet
discovery on the other claims, including numerous deposi-
tions, had already taken place with only the initial claims
in mind. See Ferguson v. Roberts, 11 F.3d 696, 706 (7th
Cir. 1993) (upholding denial of leave to file amended
complaint where proposed complaint “contained new
complex and serious charges which would undoubtedly
require additional discovery for the defendants to rebut”)
(internal quotation marks omitted).
2
Hukic sought to add claims for violation of the Real Estate
Settlement Procedures Act, 12 U.S.C. §§ 2601, et seq.; violation
of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1691,
et seq.; fraudulent concealment; unjust enrichment; violation of
the duty of good faith and fair dealing; conversion; negligence;
intentional or negligent misrepresentation; fraud; violation
of the Racketeer Influenced and Corrupt Organizations Act,
18 U.S.C. §§ 1961, et seq.; and civil conspiracy.
18 No. 07-3826
Moreover, the district court did not abuse its discretion
when it ruled that the reason Hukic gave for re-
questing leave late in the process did not justify granting
leave so late in the game. Hukic says he learned of other
pending lawsuits against Ocwen that involved mortgage
servicing issues shortly before he requested leave to
amend, and he said he only discovered the other suits
when comment logs he received from the defendants
during discovery raised questions. But the existence of
lawsuits against Ocwen was publicly available informa-
tion, available long before he sought leave to amend. The
principal case to which he points, for example, had been
pending against Ocwen since 2003. Therefore, we find
no abuse of discretion in the district court’s decision
to deny leave to file a second amended complaint.
C. Substantive Arguments
Hukic argues that material issues of fact remain that
preclude summary judgment on his breach of contract,
tortious interference with a credit expectancy, and FCRA
claims. We review the grant of summary judgment
de novo, with the familiar standard that summary judg-
ment should be granted if there is no genuine issue of
material fact and the record demonstrates that the
moving party is entitled to a judgment as a matter of
law. See Fed. R. Civ. P. 56(c); Holmes v. Potter, 552 F.3d 536,
538 (7th Cir. 2008). Hukic also challenges the dismissal of
his claims for defamation and intentional infliction of
emotional distress.
No. 07-3826 19
1. Breach of Contract and Tortious Interference
Claims
Summary judgment was proper on the breach of
contract and tortious interference claims because there
were no genuine issues of material fact precluding its
entry. Even if we disregard the $200 shortfall that
resulted when the money order for $1,335 was processed
only for $1,135, Hukic still failed to comply with his
contractual requirement that he submit proof he was
paying his property taxes directly to the county and that
he was buying his own insurance. See Catania v. Local
4250/5050 of Commonwealth Workers of Am., 834 N.E.2d
966, 971 (Ill. App. Ct. 2005) (stating plaintiff must demon-
strate its performance with contract’s requirements to
succeed on breach of contract claim). The mortgage
agreement provided that Hukic could pay the taxes and
insurance premiums directly, but only if he “promptly
furnish[ed]” receipts evidencing his payments.
Despite repeated requests, Hukic did not furnish evi-
dence that he had been paying his taxes directly to the
county until his foreclosure proceeding. Nor did he
submit evidence that he was paying insurance
premiums on his own. Hukic does not contest that he
was repeatedly advised that he was behind on his mort-
gage and that he was told how to cure the deficiency.
Because he did not do so, the servicers continued to make
the tax and insurance payments, which the mortgage
agreement allowed them to do. The result, though, was
that Hukic was in default on his mortgage and not com-
plying with his contractual requirements.
20 No. 07-3826
Although Hukic maintains issues of fact exist as to, for
example, the nature of the relationship between the
parties and whether Ocwen was on notice of Hukic’s
damages, none creates a genuine issue of material fact as
to whether Hukic was in default. Hukic’s Uniform Com-
mercial Code argument also fails to address the breach
of contract associated with the tax and insurance funds in
the escrow account. He argues that the operation of
Uniform Commercial Code Section 3-310, Ill. Comp. Stat.
5/3-310, meant that his obligations were discharged
when he gave a money order in the amount of $1,335 to
Life Savings Bank. But that does not address the larger
breach related to the tax and insurance amounts. Summary
judgment was proper on his breach of contract claim.
Summary judgment was similarly proper on the
tortious interference claim. A tortious interference with
prospective economic advantage claim requires, among
other things, an intentional and unjustified interference
by the defendant. Voyles v. Sandia Mortgage Corp., 751
N.E.2d 1126, 1133 (Ill. 2001). In Voyles, the Supreme
Court of Illinois held that a tortious interference claim
premised on allegedly inaccurate credit reporting cannot
succeed when a mortgage servicer truthfully reports a
loan as in foreclosure, even when the underlying events
leading to the foreclosure are disputed and the loan is
later reinstated. Id. at 1133-34. Similarly here, Hukic was
in breach of the terms of his loan, and it was not inac-
curate to tell credit reporting agencies that Hukic had
defaulted on his mortgage. Therefore, summary judg-
ment was proper on the tortious interference claim as well.
No. 07-3826 21
2. Fair Credit Reporting Act Claim
Hukic also contests the district court’s grant of sum-
mary judgment to Aurora and Ocwen on his FCRA
claim. In addition to imposing obligations on consumer
reporting agencies, the FCRA contains requirements for
entities such as Aurora and Ocwen that furnish informa-
tion to those agencies. For example, an entity cannot
furnish information if it knows or has reasonable cause
to know the information is inaccurate. 15 U.S.C. § 1681s-
2(a)(1)(A). Because Hukic had not complied with his
obligations under the mortgage agreement regarding the
amounts Aurora and Ocwen paid for taxes and insurance,
Aurora and Ocwen were not furnishing false informa-
tion when they informed consumer reporting agencies
that he was behind on his payments.
In 15 U.S.C. § 1681s-2(b)(1), the FCRA mandates that
“[a]fter receiving notice pursuant to section 1681i(a)(2) of
this title of a dispute with regard to the completeness
or accuracy of any information provided” to a con-
sumer reporting agency, the furnisher must conduct an
investigation regarding the disputed information and
report the results to the agency. If the investigation con-
cludes that a disputed item is inaccurate or cannot be
verified, the furnisher must promptly modify, delete,
or block the reporting of that information. 15 U.S.C.
§ 1681s-2(b)(1)(E).
On April 1, 2004, Hukic sent a letter to the credit report-
ing agency TransUnion that disputed the status of his
Ocwen account, and he asked Trans Union to investigate.
TransUnion conveyed information to Ocwen regarding
22 No. 07-3826
Hukic’s dispute in accordance with its obligation under
15 U.S.C. § 1681i(a)(1). Ocwen removed the negative
information it reported on or before May 1, 2004. Ocwen
therefore complied with its obligations under the FCRA.
Although Ocwen removed Hukic’s negative informa-
tion after its investigation, Aurora continued to report
that Hukic’s account with it had been delinquent. Hukic
never notified any credit reporting agencies that he
disputed the status of his Aurora account. He argued to
the district court, however, that Ocwen had a duty to
inform Aurora that items on Hukic’s credit report were
disputed. Although Hukic maintained that Ocwen was
Aurora’s “sub-agent,” there is no evidence in the
record that Aurora hired Ocwen to assist it in trans-
acting its affairs. See AYH Holdings, Inc. v. Avreco, Inc.,
826 N.E.2d 1111, 1125-26 (Ill. App. Ct. 2005). He also
argued that Ocwen had “constructive knowledge” that
Aurora reported Hukic as late after Ocwen received
access to Hukic’s credit report, but he does not point to
any provision in the FCRA that would require an infor-
mation furnisher to investigate information reported by
other entities. Summary judgment was therefore proper
on Hukic’s claim under 15 U.S.C. § 1681s-2(b) as well.
3. Defamation Claim
Hukic also appeals the district court’s grant of the
defendants’ motion to dismiss his claims for defamation
and intentional infliction of emotional distress. We
review the grant of a motion to dismiss for failure to state
No. 07-3826 23
a claim upon which relief can be granted de novo.
Chaudhry v. Nucor-Steel Indiana, 546 F.3d 832, 836 (7th Cir.
2008). We accept the complaint’s well-pleaded allegations
as true and draw all favorable inferences in the plain-
tiff’s favor. Id.We first address the defamation count, which was
premised on reports Aurora and Ocwen made to credit
reporting agencies that his payments were past due.
Hukic’s complaint alleged these reports were false and
that he had been denied refinancing, loans and credit as
a result. The FCRA bars defamation suits against
entities that furnish information to consumer reporting
agencies based on information such as that provided by
Aurora and Ocwen “except as to false information fur-
nished with malice or willful intent to injure such con-
sumer.” 15 U.S.C. § 1681(h). Because Hukic alleged in
his complaint that the defendants acted with malice,
the district court declined to grant the defendants’
motion to dismiss on preemption grounds. Instead, it
granted the motion to dismiss the defamation claim for
failure to file suit within the statute of limitations.
Hukic appeals that determination.
Our consideration of whether the statute of limitations
barred this state-law claim requires us to act how we
think the Supreme Court of Illinois would if faced with
this question. Rodrigue v. Olin Employees Credit Union,
406 F.3d 434, 442 (7th Cir. 2005). Illinois defamation
actions have a one-year statute of limitations. 735 Ill.
Comp. Stat. 5/13-201; Bryson v. News Am. Pub’ns, Inc., 672
N.E.2d 1207, 1222 (Ill. 1996); Rowan v. Novotny, 510
24 No. 07-3826
N.E.2d 1111, 1113 (Ill. App. Ct. 1987). The statute of
limitations on a defamation count in Illinois generally
begins to run on the date of publication of the allegedly
defamatory material. Bryson, 672 N.E.2d at 1222; Tom
Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradsheet,
Inc., 334 N.E.2d 160, 161 (Ill. 1975). Under certain circum-
stances, namely when a publication was “hidden, inher-
ently undiscoverable, or inherently unknowable,” Illinois
courts apply the “discovery rule” such that the statute of
limitations does not accrue until the plaintiff knew or
should have known of the defamatory report. Blair v. Nev.
Landing P’ship, 859 N.E.2d 1188, 1195 (Ill. App. Ct. 2006);
see Tom Olesker’s, 334 N.E.2d at 164 (cause of action
against credit reporting agency that prohibited distribu-
tion of reports to non-subscribers did not accrue until
plaintiff knew of allegedly defamatory report). In this
case, the district court concluded that Hukic knew about
the defendants’ reports to credit reporting agencies at
the latest in January 2001 when Hukic’s counsel sent a
letter to Aurora questioning the report. Because Hukic
filed suit more than a year later, the district court ruled
that Hukic’s defamation claim was time-barred.
Although the defendants urge us to apply this analysis
on appeal as well, the statute of limitations analysis in
this case involves more than an inquiry into whether the
discovery rule should be applied to a single allegedly
defamatory publication. Hukic’s complaint alleged that
Aurora continued to make false statements to consumer
reporting agencies as of the complaint filing date. That
raises the question of whether the Supreme Court of
Illinois would conclude that the statute of limitations
No. 07-3826 25
barred even the false reports that Hukic alleged had
occurred within the year preceding his lawsuit’s filing.
The parties have framed this as a question of whether
to apply the “continuing violation rule,” whereby the
statute of limitations on a tort that involves a con-
tinuing injury does not begin to run until the date of the
last injury or last tortious act. See, e.g., Feltmeier v. Feltmeier,
798 N.E.2d 75, 85 (Ill. 2003); Belleville Toyota, Inc. v. Toyota
Motor Sales, U.S.A., Inc., 770 N.E.2d 177, 191 (Ill. 2002).
We examined the Supreme Court of Illinois’s treatment
of the “continuing violation rule” in Rodrigue and con-
cluded that Illinois does not apply the continuing viola-
tion rule to “a series of discrete acts, each of which is
independently actionable, even if those acts form an
overall pattern of wrongdoing.” See Rodrigue, 406 F.3d at
443; cf. Feltmeier, 798 N.E.2d at 84-88 (applying con-
tinuing violation rule to abused wife’s intentional
infliction of emotional distress claim alleging that hus-
band’s abuse took place for more than eleven years);
Cunningham v. Huffman, 609 N.E.2d 321, 326 (Ill. 1993)
(applying rule to medical malpractice claim alleging that
injury resulted from continuous unbroken course of
negligent treatment); Kidney Cancer Ass’n v. North Shore
Cmty. Bank and Trust Co., 869 N.E.2d 186, 194 (Ill. App. Ct.
2007) (following Rodrigue and holding that cashing of
checks over a period of years did not constitute a con-
tinuing violation).
We do not think that Illinois would apply the con-
tinuing violation rule in this case. Hukic’s claim did not
depend upon a longstanding or unbroken course of
26 No. 07-3826
activity as in the spousal abuse or medical malpractice
claims in Feltmeier and Cunningham, where Illinois has
applied the continuing violation rule. Instead, the multiple
reports Aurora and Ocwen made to the consumer re-
porting agencies constituted separate, discrete acts, even
one of which would have given rise to a cause of action
under Hukic’s theory. As such, the continuing violation
rule does not apply.
The question instead seems to be whether Illinois
would apply the “single publication rule.” “It is the general
rule that each communication of the same defamatory
matter by the same defamer, whether to a new person or
to the same person, is a separate and distinct publica-
tion, for which a separate cause of action arises.” Restate-
ment (Second) of Torts § 577A cmt. a (1977); see also Keeton
v. Hustler Magazine, Inc., 465 U.S. 770, 774 n.3 (1984)
(quoting comment a to Restatement). The exception to
this general rule is what is known as the “single pub-
lication rule.” Illinois has enacted the Uniform Single
Publication Act, pursuant to which a person has only a
single cause of action for any defamation
founded upon any single publication or exhibition
or utterance, such as any one edition of a news-
paper or book or magazine or any one presentation
to an audience or any one broadcast over radio
or television or any one exhibition of a motion
picture.
740 Ill. Comp. Stat. 165/1; see Schaffer v. Zekman, 554
N.E.2d 988, 993 n.2 (Ill. App. Ct. 1990) (stating that Uni-
form Single Publication Act applies to defamation
No. 07-3826 27
claims). When the statute applies, the cause of action
accrues on the single date of first publication. Blair, 859
N.E.2d at 1193; Winrod v. MacFadden Publ’ns, 187 F.2d 180,
183 (7th Cir. 1951). By arguing that the defamation cause
of action accrued only in January 2001, Aurora and
Ocwen seem to be taking the position that their later
communications to consumer reporting agencies would
fall under the single publication rule.
The single publication rule “is applied in cases where
the same communication is heard at the same time by
two or more persons. In order to avoid multiplicity of
actions and undue harassment of the defendant by re-
peated suits by new individuals, as well as excessive
damages that might have been recovered in numerous
separate suits, the communication to the entire group is
treated as one publication, giving rise to only one cause
of action.” Restatement (Second) of Torts § 577A cmt. b
(1977); see Founding Church of Scientology of Wash., D.C. v.
Am. Med. Ass’n, 377 N.E.2d 158, 160 (Ill. App. Ct. 1978).
Neither the Supreme Court of Illinois nor the Illinois
Appellate Court has addressed the impact of the
Uniform Single Publication Act on claims premised
upon information given to or provided by consumer
reporting agencies. However, several other courts have
discussed the single publication rule in the credit
reporting context. The Ninth Circuit recently stated that
with respect to release of personal credit reports by
agencies that compile credit information, “it has been
widely accepted that the transmission or publication of
the information does not warrant application of the
28 No. 07-3826
single publication rule, and each transmission or pub-
lication is actionable.” Oja v. U.S. Army Corps of Eng’rs,
440 F.3d 1122, 1133 (9th Cir. 2006). Many other courts
have declined to apply the single publication rule as
well. See Lawrence v. TransUnion LLC, 296 F. Supp. 2d 582,
587-88 (E.D. Pa. 2003); Jaramillo v. Experian Info. Solutions,
Inc., 155 F. Supp. 2d 356, 360-61 (E.D. Pa. 2001); Musto v.
Bell South Telecomms. Corp., 748 So.2d 296 (Fla. App. Ct.
1999); Schneider v. United Airlines, Inc., 256 Cal. Rptr. 71 (Ct.
App. 1989); see also Hyde v. Hibernia Nat’l Bank, 861 F.2d
446, 450 (5th Cir. 1988) (declining to apply single publica-
tion rule in FCRA action); Larson v. Ford Credit, No. 06-CV-
1811, 2007 WL 1875989, at *2-4 (D. Minn. June 28, 2007)
(declining to apply single publication rule in FCRA claim
and collecting cases in FCRA context). Some courts have
applied the single publication rule in the credit reporting
context, reasoning that no new publication occurs when
the same, or essentially the same, credit information is
released on multiple occasions. See David J. Gold, P.C. v.
Berkin, No. 00 CV 7940, 2001 WL 121940 (S.D.N.Y. Feb. 13,
2001); Ferber v. Citicorp Mortgage, 1996 WL 46874, at *6
(S.D.N.Y. Feb. 5, 1996); Milner v. N.Y. State Higher Educ.
Servs. Corp., 777 N.Y.S.2d 604, 608 (Ct. Cl. 2004).
We think that if this case were before the Supreme
Court of Illinois, it would not apply the single publica-
tion rule. For one, the concern about a multiplicity of
lawsuits is not present here as it is in the mass publica-
tion context. Cf. Winrod v. Time, Inc., 78 N.E.2d 708, 714
(Ill. App. Ct. 1948) (concluding that rule was based princi-
pally on the practical reality that without it, a multitude of
suits would result from large distributions of published
No. 07-3826 29
matter and purpose of statute of limitations would be
eviscerated). “Credit information is confidential; dissemi-
nation is limited; and it is easy to determine exactly when
and to whom the information was disseminated.” Larson,
2007 WL 1875989, at *4. Another reason for the single
publication rule in the mass newspaper or magazine
publication context is that even though numerous copies
result from an initial publication, “no conscious intent
arises until the defendant consciously as a second edition
republishes the article.” Winrod, 78 N.E.2d at 714; see also
Dubinsky v. United Airlines Master Executive Council, 708
N.E.2d 441, 445 (Ill. App. Ct. 1999). Here, in contrast, the
defendants affirmatively gave information to consumer
reporting agencies on numerous, separate occasions
after January 2001.
Moreover, although some courts reason that no new
publication occurs when an entity later transmits the
same credit information, whether information in a later
publication is identical is not dispositive under the Re-
statement. “[T]he single publication rule . . . does not
include separate aggregate publications on different
occasions. Thus if the same defamatory statement is
published in the morning and evening editions of a
newspaper, each edition is a separate single publication
and there are two causes of action” since the publication
reaches a new group each time. Restatement (Second) of
Torts § 577A cmt. d (1977); see Weber v. Cueto, 624 N.E.2d
442 (Ill. App. Ct. 1993). And here, in any event, the infor-
mation conveyed did not stay the same. The credit
reports attached to Hukic’s complaint reflect that infor-
mation reported to the consumer reporting agencies
30 No. 07-3826
changed over the time, as the number of times payments
were past due changed, the foreclosure proceeding ap-
peared later, and Ocwen ceased to report negative infor-
mation by the end. Therefore, we do not think that the
Supreme Court of Illinois would apply the single publica-
tion rule in this case.
A conclusion that the single publication rule does not
apply means that reports Aurora made to consumer
reporting agencies within a year prior to the lawsuit’s
filing would not be barred simply because Hukic knew
that Aurora had previously made other reports to those
agencies.3 In this case, however, that does not mean
that Hukic receives a remand for further proceedings.
Hukic’s claim is not one of defamation per se under
Illinois law. See also Whitby v. Associates Disc. Corp., 207
N.E.2d 482, 485 (Ill. App. Ct. 1965) (statements to
credit bureau did not constitute defamation per se and
plaintiff needed to establish special damages to recover).
When a defamation claim is one for defamation per quod
like this one instead of one for defamation per se, a
plaintiff must show special damages, i.e., actual damages
of a pecuniary nature, to succeed. See id.; Imperial Apparel,
Ltd. v. Cosmo’s Designer Direct, Inc., 882 N.E.2d 1011, 1018
(Ill. 2008).
In Illinois courts and in federal courts sitting in
diversity, special damages must be specifically pled when
3
The complaint does not allege that Ocwen conveyed any
false information to credit reporting agencies within the year
preceding the lawsuit’s filing.
No. 07-3826 31
a complaint alleges a defamation per quod claim. Fed. R.
Civ. P. 9(g); Lott v. Levitt, 556 F.3d 564, 570 (7th Cir. 2009);
Muzikowski v. Paramount Pictures Corp., 322 F.3d 918, 924
(7th Cir. 2003). Hukic’s complaint alleges that he had
certain credit applications and loans denied from 2001
through 2003 because of false statements Aurora and
Ocwen made to consumer reporting agencies. The last
of these adverse events alleged in the complaint
occurred on December 4, 2003, well outside the limita-
tions period that began on July 1, 2004 (Hukic filed his
suit on July 1, 2005). In other words, even if reports
made to consumer reporting agencies within the year
preceding a suit’s filing can be actionable, they are not
in this case because the complaint does not allege any
harm that resulted from those particular transmissions.
We therefore uphold the dismissal of the defamation
claim. We note also that Hukic stated in his deposition
that he did not believe Aurora and Ocwen intentionally
made false reports and that he instead thought their
actions were simply a mistake, further dooming his
defamation claim since he needed to show that the
reports were made with malice or willful intent. See 15
U.S.C. § 1681(h); Johnson v. Hondo, Inc., 125 F.3d 408, 419
(7th Cir. 1997) (declining to remand even though district
court incorrectly granted motion to dismiss because
remand would be futile).
4. Intentional Infliction of Emotional Distress Claim
Finally, we briefly address the dismissal of Hukic’s
intentional infliction of emotional distress claim. An
32 No. 07-3826
intentional infliction of emotional distress claim in Illinois
requires that the defendants’ conduct be “extreme and
outrageous.” Kolegas v. Heftel Broad Corp., 607 N.E.2d
201, 211 (Ill. 1992). To meet this standard, the defendant’s
conduct “must be so extreme as to go beyond all
possible bounds of decency, and to be regarded as intolera-
ble in a civilized community.” Id.; see also Lewis v. School
Dist. #70, 523 F.3d 730, 747 (7th Cir. 2008). Hukic maintains
that Aurora failed to apply his monthly mortgage pay-
ments properly and incorrectly reported his loan as
delinquent, but none of the conduct alleged in
the complaint or adduced during discovery rises to the
level of “extreme and outrageous” conduct that would
be sufficient to support a claim under Illinois law. As we
noted earlier, even Hukic thought the information had
been conveyed to credit reporting agencies only by mis-
take. See also Public Fin. Corp. v. Davis, 360 N.E.2d 765,
767 (Ill. 1976) (finding collection methods that included
going to plaintiff’s residence did not rise to the level of
extreme and outrageous conduct). Hukic cannot succeed
on this claim either.
III. CONCLUSION
The judgment of the district court is A FFIRMED.
11-20-09