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Mitchell v. LVNV Funding, LLC

United States District Court, N.D. Indiana

September 28, 2017

MARY MITCHELL, on behalf of herself and all other class members, Plaintiff,



         This 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, 161.]


         The following facts, taken from the Amended Complaint [ECF No. 31] and the parties' statements of material facts, are undisputed.

         LVNV is 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.

         On 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:

         Dear 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 current creditor.
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.” (Id.)

         The 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.

         The 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).

         On 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 Order.)


         Summary 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. The FDCPA

         Section 1692e provides:

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 ...

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