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Smith v. Lvnv Funding, LLC

United States District Court, E.D. Tennessee, Greeneville Division

September 9, 2014

MARY SMITH, Plaintiff,
v.
LVNV FUNDING, LLC, ET AL., Defendants.

MEMORANDUM OPINION AND ORDER

J. RONNIE GREER, District Judge.

This Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., case is before the Court on Defendant Hosto & Buchan, PLLC's ("Hosto" or "defendant") Motion For Summary Judgment, [Doc. 143]. In its motion, and pursuant to Federal Rule of Civil Procedure 56 and 10(c), Hosto adopts by reference the same arguments advanced in Defendants LVNV Funding, LLC ("LVNV") and Steve Hawkins's ("Hawkins") Motion for Summary Judgment [Doc. 99]. The plaintiff responded, [Doc. 146], and the defendant replied, [Doc. 148]. For the reasons stated below, the defendant's motion is GRANTED.

I. BACKGROUND

Many of these facts are also set forth in the Court's March 10, 2014 Memorandum Opinion and Order, [Doc. 139].[1] The plaintiff, who has very limited education, admits that she opened a Montgomery Wards department store credit card account in 1996. When Montgomery Wards stores closed, the card associated with the account was replaced with a Walmart card, for continued utilization purposes. GE Capital was the original creditor on the consumer debt owed by the plaintiff. The account was transferred to Defendant LVNV in 2007. At the time of transfer, the total principal amount owing on plaintiff's account was $4, 626.06. Plaintiff cannot remember whether she ever paid off her Montgomery Wards credit card in full.

LVNV placed plaintiff's account with Resurgent Capital Services, LP ("Resurgent"), which manages and services delinquent accounts. Defendant Hosto was an agent of Resurgent, and Hosto sought to collect the debt. Hosto sent plaintiff a collection letter on May 25, 2010, which stated that the letter was an attempt to collect a debt and provided plaintiff notice of her right to request a validation of the debt. It also stated a current balance of $5, 563.69. On November 19, 2010, Defendant Hosto filed a collection lawsuit against plaintiff in state court, on behalf of Defendant LVNV. Attached to the Civil Warrant filed against plaintiff in the underlying State Court collection lawsuit was an affidavit of sworn account, styled "Plaintiff's

Affidavit of Indebtedness and Ownership of Account."

The warrant sought a money judgment in the amount of "$6, 616.66, plus the cost of this cause by reason of a suit filed on a sworn account, Plaintiff, LVNV FUNDING LLC, assignee of GE CAPITAL, original creditor, owner of Account No. XXXXXXXXXXXXXXXX, with the principle [sic] balance of $4, 626.06 accrued prejudgment interest in the amount of $1, 065.39, accruing until the date of judgment at the contract rate of interest which is 6% per annum, reasonable attorney's fees in the amount of $925.21, all of which shall bear post-judgment interest at the rate of ten (10%) percent per annum beginning from the date of judgment." [Doc. 109-2, pg. 1]. The affidavit stated that as of the date of assignment, the plaintiff owed "$4, 626.06 plus any additional accrued interest." [Doc. 109-2, pg. 2]. On January 16, 2011, the plaintiff filed a sworn denial which stated she had not entered into any agreement with LVNV for the repayment of debt or otherwise and did not believe that she owed any money to LVNV.

On February 28, 2011, Hosto sent a letter to plaintiff's counsel, and it stated the current balance was $5, 912.36. [Doc. 146-1, pg. 1]. On March 9, 2011, the state suit was non-suited. [Doc. 13, ¶ 39]. On May 6, 2011, Hosto sent plaintiff's counsel another letter, and it stated that the current balance was $5, 963.31. [Doc. 146-2, pg. 1] The plaintiff filed this federal action in this Court on November 18, 2011, [Doc. 1], and amended the Complaint on January 10, 2012.

The plaintiff alleges that the defendants violated several provisions of the FDCPA by:

(1) using any false, deceptive, or misleading misrepresentation or means in connection with the collection of any debt, 15 U.S.C. § 1692e;
(2) falsely representing the "character, amount, or legal status" of the debts, 15 U.S.C. § 1692e(2)(A);
(3) threatening to take any action that cannot legally be taken or that is not intended to be taken, 15 U.S.C. § 1692e(5);
(4) communicating to any person credit information which is known or which should be known to be false, 15 U.S.C. § 1692e(8);
(5) using a false representation or deceptive means in an attempt to collect the debts, 15 U.S.C. § 1692e(10);
(6) using unfair or unconscionable means to collect or attempt to collect a debt, 15 U.S.C. § 1692f; and
(7) collection of any amount (including interest, fees, etc.) unless such amount was expressly authorized by the agreement creating the debt or is ...

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