Nelson v. LVNV Funding LLC et al

Filing 29

Order denying Motion of Non-Debt Collector Entity Defendants for summary judgment (Related Doc # 15 ); denying Motion of Defendants Benjamin W. Navarro, Leslie G. Gutierrez, Scott E. Silver, Kevin P. Branigan and Robert A. Roderick for summary judgment (Related Doc # 16 ); granting Plaintiff's Motion to Deny of Defer Consideration of Two Motions for Summary Judgment (Related Doc # 20 ). Judge Christopher A. Boyko on 7/24/2012.(R,D)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

PATRICIA NELSON,
Plaintiff,
vs.
LVNV FUNDING, LLC, et al.,
Defendants.

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CASE NO. 1:12CV835
JUDGE CHRISTOPHER A. BOYKO
ORDER

CHRISTOPHER A. BOYKO, J.:
This matter comes before the Court upon the Motion (ECF DKT #20) of Plaintiff,
Patricia Nelson, to Deny or Defer Consideration of Two Motions for Summary Judgment.
For the following reasons, Plaintiff’s Motion is GRANTED and Defendants’ Motions (ECF
DKT #15 and #16) for Summary Judgment are DENIED at this time.
I. BACKGROUND
The captioned case was initiated in this Court on April 6, 2012, upon removal from
Cuyahoga County Common Pleas Court. Plaintiff brings the action, on her own behalf and on
behalf of others similarly situated, for violations of the Fair Debt Collection Practices Act, the
Ohio Consumer Sales Practices Act, common law fraud and conspiracy, against twenty

allegedly-related entities and individuals, claiming Defendants, individually and collectively,
made false statements and committed other deceptive or unconscionable acts in an attempt to
collect a consumer debt.
On May 29, 2012, Defendants, Sherman Originator LLC, Alegis Group LLC,
Sherman Financial Group, Sherman Capital Markets LLC, Sherman Acquisition Limited
Partnership, Sherman Acquisition LLC, Sherman Acquisition II Limited Partnership,
Sherman Acquisition II General Partner LLC, Sherman Capital, LLC, and Meeting Street
Partners II Inc. (“Sherman Defendants”), filed their Motion for Summary Judgment (ECF
DKT #15). On that same date, Defendants, Benjamin W. Navarro, Leslie G. Gutierrez, Scott
E. Silver, Kevin P. Branigan and Robert A. Roderick (“Individual Defendants”), filed their
Motion for Summary Judgment (ECF DKT #16).
On June 21, 2012, Plaintiff moved for an order, pursuant to Fed.R.Civ.P. 56(d),
denying or deferring consideration of those summary judgment motions until discovery can
be completed.
The case is scheduled for a Case Management Conference on August 2, 2012.
II. LAW AND ANALYSIS
Fed.R.Civ.P. 56(d) permits the Court to defer or deny a motion for summary judgment
when the party opposing the motion for summary judgment demonstrates by way of affidavit
or declaration the need for discovery in order to properly respond.
When Affidavits Are Unavailable. If a nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present facts essential to
justify its opposition, the court may:
(1) defer considering the motion or deny it;

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(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.
Courts have held that a party “must receive ‘a full opportunity to conduct discovery’
to be able to successfully defeat a motion for summary judgment.” Ball v. Union Carbide
Corp., 385 F.3d 713, 719 (6th Cir.2004), (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242 (1986)). Likewise, it is improper to grant summary judgment if the nonmovant is given
an insufficient opportunity for discovery. White’s Landing Fisheries, Inc. v. Buchholzer, 29
F.3d 229, 231-232 (6th Cir. 1994). The Sixth Circuit applies an abuse of discretion standard
to a district court’s ruling on a Rule 56(f) [now 56(d)] request for discovery. Plott v. Gen.
Motors Corp., 71 F.3d 1190, 1196-97 (6th Cir.1995).
The affidavit or declaration accompanying the motion must “indicate to the district
court [the party's] need for discovery, what material facts it hopes to uncover, and why it has
not previously discovered the information.” Cacevic v. City of Hazel Park, 226 F.3d 483, 488
(6th Cir.2000)(citing Radich v. Goode, 866 F.2d 1391, 1393–94 (3d Cir.1989)).1
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The Federal Rules of Civil Procedure were amended on December 1, 2010 which included
redesignating former Rule 56(f) as 56(d). The amendments have not altered the applicability of
former 56(f) precedent to a present analysis of 56(d).
See Enyart v. Karnes, No. 2:09cv 687, 2011 WL 1070870, *1 (S.D.Ohio March 21, 2011).

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Plaintiff submits counsel’s affidavit, and references an investigation conducted by the
Maryland State Collection Agency Licensing Board in the Office of the Commissioner of
Financial Regulation. On October 25, 2011, the Maryland Agency issued a Summary Cease
and Desist Order against the same people and entities that Plaintiff has named as Defendants
here, for violations of Maryland state and federal debt collection laws, including the Fair Debt
Collection Practices Act. On July 2, 2012, the Maryland State Collection Agency Licensing
Board reached a settlement agreement with LVNV Funding LLC and Resurgent Capital
Services, L.P. The settlement required payment of a monetary penalty, dismissal of pending
collection cases, and crediting the accounts of consumers whose cases were already
adjudicated or settled. The other affiliated businesses and individuals were dismissed from
the Agency action.
The Maryland Agency proceeding is not evidence of Defendants’ liability under state
or federal law in Ohio; nor is the Maryland settlement agreement proof that said Defendants
are without culpability in this action. Since a Case Management Conference has not yet been
conducted, and no discovery can be served before the parties confer as required under
Fed.R.Civ.P. 26(f), the Court finds that Plaintiff’s request to defer or deny the summary
judgment motions has merit.
Plaintiff is entitled to explore facts to determine if Defendants’ activities violate Ohio
consumer law and/or the Fair Debt Collection Practices Act. Plaintiff also has the right to
probe the credibility of the Defendants, and to cross-examine them on their affidavit

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testimony, denying involvement in debt collection activities and participation in unlawful
joint collection strategies.
Plaintiff correctly points out that the Court’s Notice of Case Management Conference
prohibits Defendants’ pending motions for summary judgment: “Unscheduled Motions for
Summary Judgment may not be filed unless leave of Court has been sought and granted.”
(ECF DKT #22 at 1).
Further, the Court cautions the parties that it does not condone unnecessarily
prolonged litigation nor unjustified motion practice as a means of coercing settlement.
III. CONCLUSION
Therefore, Plaintiff’s Motion (ECF DKT #20) is GRANTED and Defendants’
Motions (ECF DKT #15 and #16) for Summary Judgment are DENIED, subject to being refiled. At the upcoming Case Management Conference, the Court will determine, among other
matters, the scope and timing of discovery.

IT IS SO ORDERED.
DATE: 7/24/2012

S/Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge

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