White v. Resurgent Capital Servs.

• Docket Number: 21-cv-1257-DWD
• Decision Date: 24 March 2023
• Parties: JUDIETTE R. WHITE, Plaintiff, v. RESURGENT CAPITAL SERVICES, L.P., and LVNV FUNDING, LLC, Defendants.
• Court: U.S. District Court — Southern District of Illinois

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JUDIETTE R. WHITE, Plaintiff, v. RESURGENT CAPITAL SERVICES, L.P., and LVNV FUNDING, LLC, Defendants.

No. 21-cv-1257-DWD

United States District Court, S.D. Illinois

March 24, 2023

MEMORANDUM & ORDER

DAVID W. DUGAN, UNITED STATES DISTRICT JUDGE

Plaintiff Judiette R. White brings claims against LVNV Funding LLC (“LVNV”) and Resurgent Capital Services, L.P. (“Resurgent”) (collectively “Defendants”). Plaintiff's claims arise out of a debt said to be owed by Plaintiff in connection with a QVC, Inc. account (“QVC”). QVC charged off the subject debt and sold it to LVNV. LVNV then utilized Resurgent to manage collection of the account.^[1] Plaintiff contends Defendants efforts to collect the debt violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. The wrongful conduct at the heart of Plaintiff's Complaint is Defendants' alleged failure to adequately validate the debt in violation of 15 U.S.C. § 1692g. The Complaint further alleges that the same conduct violated 15 U.S.C. § 1692e and § 1692f.

Presently before the Court is Defendants' Motion for Summary Judgment (“Motion”) (Doc. 26). The thrust of Defendants' argument is that Plaintiff's claims rest on the wrongful belief that Resurgent's verification of the debt was insufficient. Defendants contend that because they appropriately validated the debt, they are entitled to summary judgment on all counts.

In responding to the Motion, Plaintiff states that she is abandoning her claims to the extent that they are premised upon the sufficiency of Defendants' validation (Doc. 30). Plaintiff maintains, however, that genuine issues of material fact remain as to Defendants' alleged violations of 15 U.S.C. § 1692e and § 1692f. As to these claims Plaintiff contends Defendants' inclusion of a validation notice on the initial communication and on a subsequent communication, as well as Defendants' efforts to collect on the account when verification requests were pending constitutes unfair and deceptive conduct in violation of the FDCPA.

I. BACKGROUND^[2]

On or about March 12, 2021, Plaintiff received a debt collection email from TrueAccord, an independent third party hired by LVNV to attempt to collect on the debt (Doc. ¶¶ 12-13, 26-1, p. 2, ¶ 6). This was the first written communication Plaintiff received in connection with the subject debt, and it included the validation notice required under 15 U.S.C. § 1692g(a). Id. The validation notice provided as follows:

Unless you notify us within 30 days after receiving this notice that you dispute the validity of this debt, or any portion of it, we will assume this debt is valid. If you notify us in writing within 30 days after receiving this notice that you dispute the validity of this debt, or any portion of it, we will obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such judgment or verification. If you request of us in writing, within 30 days after receiving this notice, we will provide you with the name and address of the original creditor, if different from the current creditor.

(Doc. 26-1, p. 13). On April 5, 2021, Plaintiff sent a written validation request and an email regarding the same to TrueAccord (Doc. 1, ¶¶ 14-15; Doc. 26-1, pp. 2, 8, 10).

On April 14, 2021, Resurgent sent two letters to Plaintiff (Doc. 1, ¶¶ 16-21; Doc. 261, pp. 2, 13, 15-16). The first April 14 letter identified the original creditor (QVC Inc.); the current creditor (LVNV Funding LLC); Resurgent's reference number for the account (705326801); the last four digits of the account number (1564); and the amount of the debt ($454.53) (Doc. 26-1, p. 13). It further stated: “Resurgent Capital Services L.P. manages the above referenced account for LVNV Funding LLC and has initiated a review of the inquiry recently received either directly or from TrueAccord, the current servicer of this account.” (Doc. 26-1, p. 13). The letter also included another validation notice, stating that Plaintiff had 30 days from receipt of the notice to dispute the validity of the debt (Doc. 1, ¶ 19; Doc. 26-1, p. 13).

The second April 14 letter included an account summary verifying the debt (Doc. 26-1, pp. 15-16). The account summary identified: the Resurgent's reference number for the account (705326801); the last four digits of the account number (1564); name of the current creditor (LVNV Funding, LLC); name of the debtor (Judiette White); address of the debtor (an address in Belleville, Illinois); name of the original creditor (QVC Inc.); current balance due ($454.53); account charge-off amount ($495.80); balance at time of acquisition ($924.93); date of last payment (September 18, 2019); date account was opened (October 29, 2018); and date account was charged off (August 1, 2020). Id.

In response to Resurgent's April 14th letters, Plaintiff submitted additional validation requests to Resurgent on April 19th and April 22nd (Doc. 26-1, pp. 18, 20-21, 23). On May 19, 2021, Resurgent placed Plaintiff's account with Credit Control, LLC (“Credit Control”), an independent third party employed by LVNV to attempt to collect on the debt (Doc. 26-1, p. 2), and on May 24, 2021, Credit Control sent Plaintiff a communication attempting to collect on the subject debt (Doc. 30-2). The letter from Credit Control identified the current creditor (LVNV Funding LLC); the original creditor (QVC Inc.); the amount due ($454.53); and the last four digits of the account number (1564). The letter also explained as follows: “Dear Judiette White, please be advised, our client, LVNV Funding LLC, has placed the above-referenced account with our office for collection. We want to bring this matter to your attention.” (Doc. 30-2). The letter identified Credit Control as a debt collector and provided Plaintiff with options for paying on the account. It also included a validation notice (Doc. 30-2).

Plaintiff sent a validation request to Credit Control and an additional validation request to Resurgent on June 9, 2021 and June 21, 2021 (Doc. 26-1, pp. 2, 25-26, 33-35, 37). Resurgent sent additional correspondence stating that it had received inquiries regarding the specified account and had initiated an investigation on June 14, 2021 and September 17, 2021 (Doc. 26-1, pp. 2, 28, 39). Resurgent sent additional account summaries, validating the subject debt, on June 15, 2021 and September 18, 2021 (Doc. 26-1, pp. 2, 30-31, 41-42).

II. Summary Judgment Standard

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c). The moving party has the initial burden of demonstrating that no evidence exists to support the non-moving party's contentions. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets this burden, then the non-moving party must set forth specific facts showing that there is a genuine issue of material fact requiring a jury trial. Id. at 324. In reviewing a motion for summary judgment, the Court must view the record and draw all inferences in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). However, “this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Id. at 24748 (emphasis in original); see also Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991) (noting that court is required to draw “only those inferences that are reasonable”).

III. The Fair Debt Collection Practices Act

In response to the abusive and deceptive practices of some debt collectors, Congress enacted the FDCPA as follows:

It is the purpose of this subchapter to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.

15 U.S.C. § 1692(e).

A. Section 1692g (Validation of Debts)

In addition to avoiding abusive debt collection practices, the FDCPA requires debt collectors to take affirmative steps to notify debtors of their rights. In relevant part, 15 U.S.C. § 1692g requires debt collectors to provide timely written notice as follows:

(a) Notice of debt; contents

Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing-

(1) the amount of the debt;

(2) the name of the creditor to whom the debt is owed;

(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;

(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and

(5) a statement that, upon the consumer's request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor if different from the current

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