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Collins v. Lvnv Funding, LLC

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

December 19, 2014

CHADRICK COLLINS, Plaintiff,
v.
LVNV FUNDING, LLC, and BUFFALOE & ASSOCIATES, PLC, Defendants.

MEMORANDUM OPINION AND ORDER

DENNIS H. INMAN, Magistrate Judge.

This Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., case is before the Court the address the Motion for Judgment on the Pleadings filed by LVNV Funding, LLC ("LVNV") and Buffaloe & Associates, PLC, ("Buffaloe")(collectively "defendants") filed pursuant to Federal Rule of Civil Procedure 12(c). [Doc. 16]. In their motion, defendants seek dismissal of all of plaintiff's claims arising under the FDCPA for failure to state a claim upon which relief may be granted based upon the rulings of this Court in Robert Bradford v. LVNV Funding, LLC, et al., Case No.2:11-cv-291 (Doc.156, Feb.25, 2014); Carl Sells v. LVNV Funding, LLC, et al., Case No.2:11-cv-355(Doc.150, March 5, 2014); Lorinda Smith v. LVNV Funding, LLC, et al., Case No.2:11-cv-379 (Doc.154, March 31, 2014); Mary Smith v. LVNV Funding, LLC, et al., Case No.2:11-cv-356 (Doc. No. 329, March 10, 2014 )2; and William Melvin v. PYOD, LLC, et al., Case No.2:11-cv-288. In each of these cases, the court found that (1) neither the civil warrant nor the sworn affidavit were false, deceptive or misleading in violation of the FDCPA; and (2) LVNV does not engage in collection activities itself, but instead relies on licensed attorneys to engage in collection activities, and therefore is not required to hold a Tennessee collection service license. See, e.g., Bradford, Doc. 156 at pp.7-8, 18-20.

On July 21, 2014, the plaintiff filed a motion for an extension of time to respond to the defendants' motion, [Doc. 20], and, on July 22, 2014, the Court granted plaintiff's request and ordered that plaintiff's response to the motion be filed by July 28, 2014. [Doc. 21]. The plaintiff has failed to file a response, and pursuant to LR7.2 of the Local Rules of the United States District Court for the Eastern District of Tennessee "[f]ailure to respond to motion may be deemed a waiver of any opposition to the relief sought." For the reasons stated below, the defendants' motion for judgment on the pleadings will be GRANTED.

I. BACKGROUND

Buffaloe, a law firm, filed a Civil Warrant and Affidavit against Chadrick Collins in the General Sessions Court for Hawkins County, Tennessee, in an attempt to collect a debt Collins owed to LVNV. The Affidavit attached to the Civil Warrant was signed by Leia Rigg, an authorized representative of LVNV.

Notwithstanding the affiant's testimony contained in the Rigg Affidavit, plaintiff alleges that the defendants (1) did not have competent evidence that plaintiff owed the debt, (2) deliberately refrained from obtaining any documentation of the debt, and (3) failed to conduct an adequate investigation before filing the collection lawsuit. Plaintiff further alleges that the Rigg Affidavit is a false representation made without knowledge of the facts underlying the debt. Plaintiff alleges that defendant LVNV failed to include "mini-Miranda" language in the Civil Warrant or Affidavit and that Defendants failed to send a written validation of the debt. Finally, plaintiff alleges that LVNV's lack of a "collection service" license in Tennessee violated the FDCPA. Based on the above, plaintiff contends that defendants violated the following sections of the FDCPA:

• Defendants falsely represented the character, amount, and legal status of plaintiff's debt, in violation of 15 U.S.C. § 1692e(2)(A);
• Defendants falsely represented the compensation which may be legally received by A debt collector for the collection of a debt, in violation of 15 U.S.C. § 1692e(2)(B);
• Defendants' false representations were used in an attempt to collect plaintiff's debt, in violation of 15 U.S.C. § 1692e(10);
• Defendants communicated to the General Sessions Court, the general public and plaintiff credit information that they knew, or should have known, to be false, in violation of 15U.S.C. § 1692e(8);
• Defendants used unfair or unconscionable means to collect or attempt to collect a debt in violation of 15 U.S.C. § 1692f;
• Defendants threatened to take action that could not legally be taken, in violation of 15 U.S.C. § 1692e(5);
• Defendants failed to send a written notice containing the amount of the debt within five days after the initial communication, in violation of 15 U.S.C. § 1692g(a)(1), (3)-(5) and
• Defendants failed to include the FDCPA's "mini-Miranda" language in their initial communication, ...

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