Funding v. Boyles

• Decision Date: 23 October 2009
• Docket Number: 2080442.
• Citation: 70 So.3d 1221
• Parties: LVNV FUNDING, LLCv.Tammie Lynn (Moncries) BOYLES.
• Court: Alabama Court of Civil Appeals

70 So.3d 1221

LVNV FUNDING, LLC

v.Tammie Lynn (Moncries) BOYLES.

2080442.

Court of Civil Appeals of Alabama.

Oct. 23, 2009.

David R. Pruet III and Wesley B. Gilchrist of Lightfoot, Franklin & White, L.L.C., Birmingham, for appellant.Jerry O. Lorant of Lorant & Associates, PC, Birmingham, for appellee.BRYAN, Judge.

LVNV Funding, LLC (“LVNV”), appeals from a judgment denying its motion to vacate a default judgment pursuant to Rule 60(b)(4), Ala. R. Civ. P. ¹ We reverse and remand.

On April 18, 2006, Tammie Lynn (Moncries) Boyles sued LVNV in the Jefferson Circuit Court (“the circuit court”). In pertinent part, Boyles's complaint alleged that LVNV was “one and the same as Resurgent Capital Services, L.P.[,] a corporation, of Houston, Texas, and one and the same as Resurgent Services Capital, a corporation[,] of Greenville, South Carolina”; that LVNV was “doing business as Sherman Acquisition, Inc.”; that LVNV had committed the tort of invasion of privacy by intentionally, willfully, and maliciously harassing Boyles with communications seeking to collect a debt that Boyles did not owe; and that LVNV had committed the torts of fraud and deceit by suing Boyles to recover a debt that LVNV knew Boyles did not owe. As relief, Boyles prayed for an award of damages in the amount of $50,000. Boyles's complaint instructed the circuit court clerk to serve LVNV with process by certified mail and to address it as follows:

“Kathy James

LVNV Funding, LLC

15 South NE St. Ste. 600

Greenville, SC 29601”

The circuit court clerk complied with Boyles's instructions and received a return receipt signed by Brandi Taylor.

After more than 30 days had elapsed from the date Taylor had signed the return receipt, the circuit court clerk notified Boyles that LVNV had not answered or otherwise defended against Boyles's complaint. Boyles requested that the circuit court clerk enter a default against LVNV; however, the circuit court clerk did not do so. Thereafter, Boyles moved the circuit court to enter a default judgment against LVNV with leave for Boyles to prove the amount of her damages. On August 19, 2006, the circuit court entered an order stating that “a Judgment is rendered against LVNV Funding, LLC, one and the same as Resurgent Capital Services, and one and the same as Sherman Financial Group, doing business under the name of LVNV Funding, Inc.[,] the same being in default, with leave to prove damages.” On December 14, 2006, the circuit court, without giving LVNV notice, held an evidentiary hearing for Boyles to prove the amount of her damages. On December 18, 2006, the circuit court entered a judgment stating:

“This cause was set before the undersigned [on December 14, 2006,] for the purposes of taking testimony to prove damages, default judgment having been previously entered herein in favor of [Boyles] and against the defendant, LVNV Funding, LLC, one and the same as Resurgent Capital Service, LP, a corporation in Houston, Texas; and one and the same, as Resurgent Capital, a corporation in Greenville, South Carolina, which is also doing business as Sherman Acquisition, Inc. (see paragraphs 3 and 4, of the Complaint), on Count One for intentionally, willfully, and maliciously invading [Boyles's] privacy and Count Three, for Fraud and Deceit. The Court heard the sworn testimony of [Boyles], reviewed certain documents presented and heard the arguments of counsel and, therefore, enters Judgment herein in the amount of Fifty Thousand and No/100 Dollars ($50,000.00) in favor of [Boyles] and against the defendants, separately and severally, as hereinabove set forth.”

On January 16, 2008, Boyles's attorney sent LVNV's attorney a copy of the default judgment by facsimile transmission. On February 15, 2008, LVNV filed a motion pursuant to Rule 60(b)(4), Ala. R. Civ. P., seeking relief from the judgment entered against it on the ground that the judgment was void because LVNV had not been properly served with process in accordance with Rule 4, Ala. R. Civ. P. Specifically, LVNV asserted that it had not been properly served with process because, it said, Rule 4 required that the process be addressed to an officer of LVNV, a partner (other than a limited partner) in LVNV, a managing or general agent of LVNV, or an agent authorized by appointment or by law to receive service of process on behalf of LVNV and Kathy James, the person to whom the process had been addressed, was not such an officer, partner, or agent. In support of its motion, LVNV submitted an affidavit signed by Tammy Garrett, which stated, in pertinent part:

“2. I am a supervisor for Resurgent Capital Services LP (‘Resurgent’). Resurgent is the Master Servicing Agent and Attorney–in–Fact for [LVNV]. My duties with Resurgent include supervision of a staff that included Kathy James during her tenure of employment with Resurgent in 2006. I have general knowledge about the relationship between Resurgent and LVNV and specific knowledge about the job responsibilities of Kathy James in relationship to both Resurgent and LVNV.

“3. Kathy James was employed by Resurgent in 2006. Kathy James was never employed by LVNV.

“4. Ms. James's duties with Resurgent included authorization to review consumer account records and verify those facts upon request.

“5. While employed by Resurgent in 2006, Kathy James was never authorized by appointment or by law to receive service of process on behalf of any entity, including LVNV.

“6. Kathy James was not, nor has she ever been, an officer, partner, managing or general agent of LVNV.”

In opposition to LVNV's motion, Boyles asserted that James was a proper person to receive service of process on behalf of LVNV because James had submitted an affidavit that she had signed as attorney-in-fact for LVNV in the action that LVNV had filed against Boyles. Boyles introduced that affidavit, which stated:

“The undersigned LVNV Funding LLC Representative, upon being duly sworn, deposes and says:

“1. I am an Attorney in Fact for LVNV Funding LLC (‘Plaintiff’), as purchaser and assignee of Sears, which is a corporation organized and existing under the laws of the State of AL.

“2. I have knowledge of the facts herein set forth and am duly authorized to make this Affidavit; that the claim against Tammie L. Moncries is within my knowledge and is just, true and correct and that all just and lawful offsets, payments and credits have been allowed.

“3. There is now due from said debtor the principal sum of $3,070.36 as of the date of this statement.

“4. To the best of my knowledge the Defendant(s) is not now in the military service, as defined in the Soldier's and Sailor's Civil Relief Act of 1940 with amendments, nor has been in such service within thirty days hereof.

“LVNV Funding LLC,as assignee ofSears

“BY: /s/ Kathy James

“Print Name: Kathy JamesTitle: Attorney in Fact”

LVNV subsequently submitted two affidavits signed by Jean Paul Torres and an affidavit signed by Gail Conway. The first affidavit signed by Torres stated, in pertinent part:

“2. I am a Legal Administrator for Resurgent Capital Services L.P. As a result of my position with the company, I am familiar with the relationship between LVNV Funding LLC, Alegis Group, LLC (‘Alegis'), and Resurgent Capital Services, L.P. (‘Resurgent’).

“3. In this regard, Alegis is the managing agent of Resurgent, which provides support services in connection with LVNV's consumer debt portfolios. Those support services include reviewing and researching consumer records and verifying that research by affidavit if necessary. Alegis and Resurgent are not and have never been authorized by appointment or by law to receive service of process on behalf of LVNV, and neither Alegis nor Resurgent are, or ever have been an officer, partner, managing or general agent of LVNV.

“4. As a part of its support services to LVNV, Resurgent authorizes certain of its employees to execute affidavits on behalf of LVNV. Specifically, in the attached ‘Written Consent Action of the Board of Managers in Lieu of a Meeting,’ Resurgent's managing agent Alegis gives Kathy James limited authority to execute such affidavits. The attached document was in effect in April of 2006 and states the full extent of James's authority to act on behalf of LVNV during that time period.

“5. The attached document was kept and maintained by Resurgent in the ordinary course of its regularly conducted business activity, and it was the regular practice of Resurgent's business activity to create that document. The document is a true and accurate copy of the original with the exception that it is an unexecuted copy of the original. The original executed copy of the original is not readily available, I have attempted to locate the original executed version of the attached document, but have been unable to locate it at this time.”

In pertinent part, the document attached to the first affidavit signed by Torres stated:

“ALEGIS GROUP LLC

WRITTEN CONSENT ACTION OF

THE BOARD OF MANAGERS

IN LIEU OF A MEETING

“The undersigned being all the Managers of Alegis Group, LLC, a Delaware limited liability company (the ‘Company’), in accordance with and pursuant to Section 18–404(d) of the Delaware Limited Liability Company Act, do hereby consent to, adopt and approve the following resolutions on behalf of the Company and on behalf of Resurgent Capital Services L.P., in its capacity as general manager of Resurgent Capital Services L.P.

“RESOLVED, that this consent action (‘Consent Action’) shall have the same force and effect as though adopted at a meeting of the Company's Board of Managers duly called and held.

“APPOINTMENT OF AUTHORIZED REPRESENTATIVES

OF THE COMPANY

“RESOLVED, that the following persons be, and hereby are, appointed Authorized Representatives of the Company for the limited purpose of signing, under authority granted in the accordance with general Company corporate authority, affidavits as attorney in fact of LVNV Funding LLC (‘LVNV’), attesting to balance,...