United States District Court, N.D. Indiana
MARY MITCHELL, on behalf of herself and all other class members, Plaintiff,
LVNV FUNDING, LLC; RESURGENT CAPITAL SERVICES, L.P.; and ALEGIS GROUP, LLC, Defendants.
OPINION AND ORDER
THERESA L. SPRINGMANN, UNITED STATES DISTRICT COURT CHIEF
matter is before the Court on three matters: (1) the Amended
Motion for Summary Judgment [ECF No. 142], filed by Plaintiff
Mary Mitchell on behalf of herself and all other class
members; (2) the Cross Motion for Summary Judgment [ECF No.
139], filed by Defendants LVNV Funding, LLC (LVNV), Resurgent
Capital Services, L.P. (Resurgent), and Alegis Group, LLC
(Alegis); and (3) the Defendants' Daubert Motion to Bar
the Plaintiff's Expert [ECF No. 137]. All of these
motions are briefed and ripe for ruling. The parties have
also briefed statements of undisputed material facts.
[see ECF Nos. 144, 155, 163, 165, 167, 154, 160,
following facts, taken from the Amended Complaint [ECF No.
31] and the parties' statements of material facts, are
engaged in the business of purchasing allegedly defaulted
debts originally owed to others and incurred for personal,
family, or household purposes. LVNV has no employees. It
holds titles to accounts while Resurgent, operating as a
collection agency, directs collection activities on behalf of
LVNV. Alegis is the sole general partner of Resurgent.
January 30, 2012, Capital Management Services, L.P. (CMS),
contracted by Resurgent to send dunning letters, sent the
Plaintiff, who is a resident of Indiana, a letter to collect
on her debt. The letter included “GE-WALMART” as
the “Description” and listed “LVNV Funding
LLC” as the “Current Creditor.” (Second Am.
Compl. Ex. A., ECF No. 31-1.) The account number and balance
were also included. (Id.) The substance of the
letter stated, in relevant part:
Mary L. Mitchell:
This company has been engaged by RESURGENT CAPITAL SERVICES,
LP, the servicer of the account, to resolve your delinquent
debt of $1356.06. Please submit your payment and make your
check or money order payable to Capital Management Services,
LP, to the above address.
Unless you notify this office within 30 days after receiving
this notice that you dispute the validity of this debt or any
portion thereof, this office will assume this debt is valid.
If you notify this office in writing within 30 days from
receiving this notice that you dispute the validity of this
debt or any portion thereof, this office will obtain
verification of the debt or obtain a copy of a judgment and
mail you a copy of such verification or judgment. If you
request this office in writing within 30 days after receiving
this notice this office will provide you with the name and
address of the original creditor, if different than the
Capital Management Services, LP is authorized to accept less
than the full balance due as settlement of the above account.
The settlement amount of $474.62, which represents 35% of the
amount presently owed, is due in our office no later than
forty-five (45) days after receiving this notice. We are not
obligated to renew this offer.
For your convenience, this settlement may be made online at:
www.cms-trans. com. For other payment options,
please contact Capital Management Services LP . . . .
This is an attempt to collect a debt; any information
obtained will be used for that purpose. This communication is
from a debt collector.
(Id.) The letter also directed the recipient to
“detach and return top portion with payment.”
parties do not contest that the alleged debt was past the
operative statute of limitations. The letter did not disclose
the date of the transactions giving rise to the claimed debt
or advise that the debt was barred by Indiana's six year
statute of limitations.
Plaintiff alleges that the settlement offer, in connection
with the failure to disclose that the claim was time-barred,
implied that LVNV could decide to sue the Plaintiff to
collect on the debt. Moreover, the Plaintiff alleges that the
Defendants engaged in unfair and deceptive acts and practices
“by causing its agents to send consumers collection
letters that contain settlement offers on time-barred debts
without disclosure of the fact that the debt is
time-barred.” (Second Am. Compl. ¶ 47.) The
Plaintiff seeks actual and statutory damages pursuant to the
Fair Debt Collection Practices Act (FDCPA).
November 10, 2015, the Court certified the following class,
pursuant to Federal Rule of Civil Procedure 23(b)(3):
(a) All individuals with addresses in Indiana or Illinois
(b) to whom LVNV, Resurgent, or any debt collector employed
by LVNV or Resurgent
(c) sent a letter seeking to collect
(d) a credit card debt on which the last payment had been
made more than five years (Illinois residents) or six years
(Indiana residents) prior to the letter
(e) which letter was sent on or after i. December 17, 2011,
in the case of Indiana residents or ii. February 28, 2011, in
the case of Illinois residents and
(f) On or before January 7, 2013
(g) Where the individual after receipt of the letter, i. Made
a payment, ii. filed a suit, iii. or responded by requesting
verification or contesting the debt.
(Nov. 5, 2015 Order, ECF No. 88; Apr. 21, 2016 Order Am.
Class Definition, ECF No. 105.) The Court also certified a
subclass “for those class members who received a copy
of the letter attached as Exhibit A to the Second Amended
Complaint. Illinois residents who fall within the revised
class definitions in McMahon v. LVNV Funding, LLC,
1:12-CV-1410, are specifically excluded.” (Nov. 5, 2015
judgment is warranted when “the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). Summary judgment is the moment in
litigation where the nonmoving party is required to marshal
and present the Court with evidence on which a reasonable
jury could rely to find in his favor. Goodman v.
Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir.
2010). A court should deny a motion for summary judgment when
the nonmoving party presents admissible evidence that creates
a genuine issue of material fact. Luster v. Ill.
Dep't of Corrs., 652 F.3d 726, 731 (7th Cir. 2011)
(first citing United States v. 5443 Suffield
Terrace, 607 F.3d 504, 510 (7th Cir. 2010), then citing
Swearnigen-El v. Cook Cnty. Sheriff's Dep't,
602 F.3d 852, 859 (7th Cir. 2010)). A court's role in
deciding a motion for summary judgment “is not to sift
through the evidence, pondering the nuances and
inconsistencies, and decide whom to believe. [A] court has
one task and one task only: to decide, based on the evidence
of record, whether there is any material dispute of fact that
requires a trial.” Waldridge v. Am. Heochst
Corp., 24 F.3d 918, 920 (7th Cir. 1994). Material facts
are those that are outcome determinative under the applicable
law. Smith v. Severn, 129 F.3d 419, 427 (7th Cir.
1997). Although a bare contention that an issue of material
fact exists is insufficient to create a factual dispute, a
court must construe all facts in a light most favorable to
the nonmoving party, view all reasonable inferences in that
party's favor, Bellaver v. Quanex Corp., 200
F.3d 485, 491-92 (7th Cir. 2000), and avoid “the
temptation to decide which party's version of the facts
is more likely true, ” Payne v. Pauley, 337
F.3d 767, 770 (7th Cir. 2003).
A debt collector may not use any false, deceptive, or
misleading representation or means in connection with the
collection of any debt. Without limiting the general
application of the foregoing, the ...