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Voorhees v. LVNV Funding, LLC

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

September 22, 2014

SAMUEL VOORHEES, 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 plaintiff's Motion for Partial Summary Judgment, [Doc. 89], and defendants' Motion for Summary Judgment, [Doc. 92]. Plaintiff argues that there is no genuine issue for trial regarding whether the Defendant LVNV Funding, LLC ("LVNV") violated the FDCPA when it filed a state court lawsuit without being licensed as a debt collection service in Tennessee. In defendants' motion, defendants LVNV, Nikki Foster ("Foster"), and Buffaloe & Associates, PLC ("Buffaloe") (collectively "defendants") seek dismissal of all of plaintiff's claims arising under the FDCPA for failure to create genuine issues of material fact. Responses have been filed, [Docs. 103 and 106], and the matters are ripe for review. For the reasons stated below, the plaintiff's motion is DENIED, and the defendants' motion is GRANTED.

I. BACKGROUND

It is undisputed that the plaintiff defaulted on his Credit One Bank, N.A. Visa credit card account.[1] The account was transferred to LVNV in 2009. At the time of the transfer the principal owing was $896.34. LVNV placed the account with Resurgent Capital Services, LP ("Resurgent"), which manages and services delinquent accounts. Resurgent hired Buffaloe, a law firm licensed in Tennessee, to collect the debt for LVNV.[2]

On March 3, 2011, Buffaloe filed a collection lawsuit in state court on behalf of LVNV. Attached to the civil warrant was an affidavit of sworn account signed by Foster, an authorized representative of LVNV. The warrant sought a money judgment in the amount of "$896.34, plus pre and post judgment interest accruing at the statutory rate of 10% and court costs of this cause of $114.50, and service of process fees in the amount of $25.00." The affidavit stated that as of the date of assignment, the plaintiff owed "$896.34 plus any additional accrued interest."

On May 21, 2011, the plaintiff filed a motion to dismiss and a sworn denial which stated, "I have not entered into any agreement with LVNV for the repayment of debt or otherwise. I do not believe that I owe any money to LVNV Funding LLC." On October 19, 2011, the state suit was voluntarily dismissed. The plaintiff filed this federal action in this Court on March 5, 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) failing to disclose in an "initial communication" that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose; and failing to disclose in a subsequent communication that the communication is from a debt collector, 15 U.S.C. § 1692e(11);
(7) using unfair or unconscionable means to collect or attempt to collect a debt, 15 U.S.C. § 1692f; and
(8) collection of any amount (including interest, fees, etc.) unless such amount was expressly authorized by the agreement creating the debt or is permitted by law, 15 U.S.C. § 1692f(1).

Plaintiff also asserts that LVNV is liable for the acts and omissions of Buffaloe and Foster under the theory of respondeat superior.

This Court admits that it has been difficult to discern the actual claims and arguments put forth by the plaintiff. Perhaps due to the difficulty in understanding the Complaint and plaintiff's filings, defendants' filings have likewise not been a model of clarity. Considering the entire record and the specifics listed above, this Court will address the following issues:

1. Whether defendants violated various sections of the FDCPA by their routine practice of filing a state lawsuit allegedly having demonstrated no intention of litigating the case on the merits?;

2. Whether defendants violated various sections of the FDCPA by supporting their state court collection action with an affidavit that was allegedly not based on personal knowledge?;

3. Whether defendants violated the FDCPA for communicating credit information which was allegedly known to be false or should be known to be false?;

4. Whether defendants violated various sections of the FDCPA due to the warrant and affidavit listing "inconsistent" amounts?;

5. Whether defendants violated various sections of the FDCPA because the warrant and affidavit requested interest and attorney's fees[3] and the defendants have allegedly failed to produce a contract allowing for such collection?;

6. Whether defendants violated various sections of the FDCPA because the specific interest rates stated in the warrant, affidavit, and other filings in the case were different (not specifically addressed by plaintiff in Response)?;

7. Whether defendants violated various sections of the FDCPA because the interest rates listed in the warrant and affidavit were for rates not allowed by Tennessee law (not specifically addressed by plaintiff in Response)?;

8. Whether defendants violated section 1692e(11) for failing to include the requisite language in the Sworn Affidavit (not specifically ...


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