Is your case strong enough to win?

While litigation is inherently unpredictable and often uncertain, before you file a lawsuit, make sure you have competent, experienced counsel.  Just as importantly, ask questions.  Before you authorize (and pay for) your attorney to file a Complaint, ask him/her to give you a solid analysis of each count and theory of your case.   Put differently, a sage plaintiff will be sure to look before you leap and do your homework before filing a Complaint.  Conducting thorough legal research is not a guarantee you’ll win your case.  However, you’re better off finding out the probability of success before you file given the amount of time, money and resources required in bringing a lawsuit.  The best way to do this is simple–hire an experienced, competent litigator who knows his/her stuff.  A lawyer like that will undoubtedly do the hard work needed to lay a strong predicate before your case is filed.  The case below illustrates how someone with plausible, viable claims lost their case before it started.   A well-developed and detailed pre-filing analysis might have led to a very different result.

Demona Freeman secured a loan to purchase her home, which was assigned to the Bank of New York Mellon (BNY Mellon) and serviced by Ocwen Loan Servicing, LLC. After falling behind on her mortgage payments, BNY Mellon initiated a foreclosure action. Freeman filed for bankruptcy and eventually cured her mortgage default through bankruptcy payments. Despite this, Ocwen inaccurately reported her loan as delinquent and began rejecting her monthly payments, leading BNY Mellon to file a second foreclosure action, which was later dismissed. Freeman sued Ocwen and BNY Mellon, alleging violations of the Fair Credit Reporting Act (FCRA) and the Fair Debt Collection Practices Act (FDCPA).

The United States District Court for the Southern District of Indiana dismissed Freeman’s FCRA claim and granted summary judgment against her, on her FDCPA claim, citing lack of standing.  Freeman appealed both rulings.  She argued that Ocwen failed to conduct a reasonable investigation after being notified by consumer reporting agencies (CRAs) of her dispute over the delinquent loan reporting.  She also claimed that Ocwen’s erroneous reporting and collection practices caused her various injuries.

The United States Court of Appeals for the Seventh Circuit reviewed the case.   The court affirmed the district court’s dismissal of the FCRA claim, finding that Freeman failed to specify which CRA she notified, thus not providing Ocwen fair notice of the claim.  The court also upheld the summary judgment on the FDCPA claim, concluding that Freeman lacked standing.  The court determined that Freeman did not provide sufficient evidence of concrete injuries, such as monetary harm or intangible injuries closely related to common law analogues like defamation or invasion of privacy.  Consequently, the court affirmed the district court’s rulings.