Robinson v. Sherman Financial Group, LLC et al

Filing 67

MEMORANDUM; For the foregoing reasons, the Court will GRANT Hostos motion for partial summary judgment (Court File No. 40); GRANT IN PART and DENY IN PART the LVNV Defendants joint motion for summary judgment (Court File No. 42); and DENY Plaintiffs motion for partial summary judgment (Court File No. 49). Plaintiffs § 1692e claims brought against the LVNV Defendants and Hosto will remain in the case; all other claims are dismissed. An Order shall enter. Signed by District Judge Curtis L Collier on 7/31/13. (CNM, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE
RALPH ROBINSON,
Plaintiff,
v.
SHERMAN FINANCIAL GROUP, LLC,
LVNV FUNDING, LLC,
RESURGENT CAPITAL SERVICES, LP,
R. SCOTT BATSON, and
HOSTO & BUCHAN, PLLC,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)

2:12-CV-30
Judge Curtis L. Collier

MEMORANDUM
Before the Court are the following motions: (1) Defendant Hosto & Buchan, PLLC’s
(“Hosto”) motion for partial summary judgment (Court File No. 40); (2) Defendants Sherman
Financial Group, LLC (“Sherman”), LVNV Funding, LLC (“LVNV”), Resurgent Capital Services,
LP (“Resurgent”), and R. Scott Batson’s (“Batson”) (collectively, “LVNV Defendants”) joint
motion for summary judgment (Court File No. 42); and (3) Plaintiff Ralph Robinson’s (“Plaintiff”
or “Robinson”) motion for partial summary judgment (Court File No. 49). For the following reasons,
the Court will GRANT Hosto’s motion for partial summary judgment (Court File No. 40); GRANT
IN PART and DENY IN PART the LVNV Defendants’ joint motion for summary judgment (Court
File No. 42); and DENY Plaintiff’s motion for partial summary judgment (Court File No. 49).
Plaintiff’s § 1692e claims brought against the LVNV Defendants and Hosto will remain in the case;
all other claims are dismissed.

I.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

At issue is Plaintiff’s credit card debt originally owed to and serviced by HSBC/Orchard
Bank (“HSBC”). On November 22, 2010, Hosto sent a letter to Plaintiff in an attempt to collect the
debt originally owed to HSBC but now owed to LVNV (Court File No. 44-4). The current balance
listed was $2,725.22 (id.). On January 23, 2011, Hosto sent another collection letter to Plaintiff,
which indicated the current balance was $2,747 (Court File No. 15-1). Then, on March 8, 2011,
Hosto filed a summons for civil warrant and an affidavit against Plaintiff in state court on behalf of
LVNV (Court File No. 15-2 at 1). The demand in the summons stated Plaintiff owed “a money
judgment of $3,201.06 plus cost from a suit filed on a sworn account with the principle [sic] sum
of $2,208.59 accrued pre-judgment interest of $550.76 accruing at 6% until date of judgment,
reasonable attorney’s fees in the amount of $441.72, all of which shall bear post-judgment interest
of 10% per annum beginning from judgment date” (id.).
The affidavit, which was filed in support of the summons, was authored by Batson (Court
File No. 15-2 at 2). In the affidavit, Batson attested under penalty of perjury to being an authorized
representative for LVNV and to having “personal knowledge regarding [LVNV’s] creation and
maintenance of its normal business books and records” (id.). In explaining the nature of the business
records reviewed, Batson stated:
In the ordinary course of business, [LVNV] regularly acquires revolving credit
accounts, installment accounts, service accounts and/or other credit lines. The
records provided to Plaintiff have been represented to include information provided
by the original creditor or its successors in interest. Such information includes the
debtor’s name, social security number, account balance, the identity of the original
creditor and the account number.
(id.). Batson further attested to the following regarding Plaintiff’s account:
the Account is the result of the extension of credit to Ralph Robinson by
HSBC/Orchard Bank on or about 01/10/2005 (the “Date of Origination”). Said
business records further indicate that Account was then owned by IDT Carmel, Inc,
2

that IDT Carmel, Inc later sold and/or assigned Portfolio 12546 to Plaintiff’s
assignor which included the Defendant’s Account on 01/30/2009 (the “Date of
Assignment”) and on the Date of Assignment, all ownership rights were assigned to,
transferred to, and became vested in Plaintiff, including the right to collect the
purchased balance
owing of $2,208.59 plus any additional accrued interest.
(id.). On April 21, 2011, Plaintiff filed a sworn denial stating he had not entered into any agreement
with LVNV “for the repayment of debt or otherwise” (Court File No. 15-3). The state court action
was voluntarily dismissed.
On January 23, 2012, Plaintiff filed a complaint in this Court against the LVNV Defendants
and Hosto (collectively, “Defendants”) alleging various violations of the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. §§ 1692 et seq. (Court File No. 1). Plaintiff filed an amended
complaint on May 13, 2012, again alleging violations of the FDCPA (Court File No. 15).
Specifically, Plaintiff alleges some or all of the Defendants (1) falsely represented the character,
amount, and legal status of the debt and the compensation that may be lawfully received by the debt
collector for the collection of the debt, §§ 1692e(2)(A) and (B); (2) used false, deceptive, and
misleading representations or means in connection with the collection of Plaintiff’s debt or the
attempt to collect the debt, §§ 1692e and e(10); (3) used unfair or unconscionable means to collect
or attempt to collect Plaintiff’s debt, § 1692f; (4) communicated credit information to the state court,
the general public, and Plaintiff that they knew or should have known was false, § 1692e(8); (5)
threatened to take action that could not legally be taken, § 1692e(5); (6) attempted to collect
amounts not expressly authorized by the agreement creating Plaintiff’s debt or permitted by law, §
1692f(1); (7) failed to disclose the requisite information for initial and subsequent communications,
§1692e(11); and (8) failed to send a written notice to Plaintiff within five days of the initial
communication, § 1692g(a)(3)-(5) (see Am. Compl. ¶¶ 37-119). Plaintiff seeks actual damages,
3

statutory damages, and attorney’s fees and costs (id. ¶ 120).
The LVNV Defendants subsequently filed a motion to dismiss, which this Court granted in
part and denied in part (Court File Nos. 36, 37). The only claims dismissed pursuant to Fed. R. Civ.
P. 12(b)(6) were Plaintiff’s § 1692e(11) claims against Defendants LVNV, Sherman, and Resurgent.
Now pending before the Court are summary judgment motions filed by Hosto, the LVNV
Defendants, and Plaintiff.

II.

STANDARD OF REVIEW
Summary judgment is proper 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).
The moving party bears the burden of demonstrating no genuine issue of material fact exists. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986); Leary v. Daeschner, 349 F.3d 888, 897 (6th Cir. 2003).
The Court should view the evidence, including all reasonable inferences, in the light most favorable
to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986); Nat’l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001).
To survive a motion for summary judgment, “the non-moving party must go beyond the
pleadings and come forward with specific facts to demonstrate that there is a genuine issue for trial.”
Chao v. Hall Holding Co., 285 F.3d 415, 424 (6th Cir. 2002). Indeed, a “[plaintiff] is not entitled
to a trial on the basis of mere allegations.” Smith v. City of Chattanooga, No. 1:08-CV-63, 2009 WL
3762961, at *2-3 (E.D. Tenn. Nov. 4, 2009) (explaining the Court must determine whether “the
record contains sufficient facts and admissible evidence from which a rational jury could reasonably
find in favor of [the] plaintiff”). In addition, should the non-moving party fail to provide evidence

4

to support an essential element of its case, the movant can meet its burden of demonstrating no
genuine issue of material fact exists by pointing out such failure to the court. Street v. J.C. Bradford
& Co., 886 F.2d 1472, 1479 (6th Cir. 1989).
At summary judgment, the Court’s role is limited to determining whether the case contains
sufficient evidence from which a jury could reasonably find for the non-movant. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248-49 (1986). If the Court concludes a fair-minded jury could not return
a verdict in favor of the non-movant based on the record, the Court should enter summary judgment.
Id. at 251-52; Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).

III.

DISCUSSION
The FDCPA was enacted “to eliminate abusive debt collection practices by debt collectors,

to insure that those debts 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.” Miller v. Javitch, Block & Rathbone, 561 F.3d 588, 591 (6th Cir. 2009)
(quoting 15 U.S.C. § 1692(e)). Courts should “begin with the language of the statute itself” when
interpreting the FDCPA. Schroyer v. Frankel, 197 F.3d 1170, 1174 (6th Cir. 1999). Courts also
should use the “‘least sophisticated consumer’ standard, an objective test, when assessing whether
particular conduct violates the FDCPA.” Hartman v. Great Seneca Fin. Corp., 569 F.3d 606, 611-12
(6th Cir. 2009) (quoting Harvey v. Great Seneca Fin. Corp., 453 F.3d 324, 329 (6th Cir. 2006)).
“The test is objective, and asks whether there is a reasonable likelihood that an unsophisticated
consumer who is willing to consider carefully the contents of a communication might yet be misled
by them.” Grden v. Leikin Ingber & Winters PC, 643 F.3d 169, 172 (6th Cir. 2011). By using the

5

“least sophisticated consumer” standard, courts can ensure “that the FDCPA protects all consumers,
the gullible as well as the shrewd.” Id. (quoting Kistner v. Law Offices of Michael P. Margelefsky,
LLC., 518 F.3d 433, 438 (6th Cir. 2008) (quotation marks and citations omitted)).
Plaintiff brings an assortment of claims against Defendants, though those claims can be
grouped into just a few categories.1 The first set of claims is brought against all Defendants pursuant
to various provisions of § 1692e and pertains to the collection lawsuit, particularly the use of the
summons for civil warrant and sworn affidavit. The second set of claims is brought against Sherman,
LVNV, and Hosto for their failure to obtain a license under the Tennessee Collection Service Act
(“TCSA”), Tenn. Code Ann. §§ 60-20-101 et seq., in violation of §§ 1692e(5), (f), and (f)(1) of the
FDCPA. Finally, Plaintiff contends Sherman, LVNV, and Resurgent did not provide a written notice
containing the requisite information within five days of the initial communication pursuant to §
1692g(a)(3)-(5).
The Court will address the parties’ motions for summary judgment as they pertain to the
aforementioned claims.
A.

Hosto’s Motion for Partial Summary Judgment

Hosto has filed a motion for partial summary judgment on the grounds that, as a law firm,
it is not required to obtain a collection license under the TCSA. Hosto argues attorneys are exempted
from the regulations of the TCSA. Hence, according to Hosto, Plaintiff’s FDCPA claims against
Hosto for failing to obtain a license under the TCSA must be dismissed.

1

While the claims alleged in the amended complaint are numerous and, at times, difficult
to follow, the Court observes that both Plaintiff and Defendants have attempted to narrow the claims
actually at issue in the case. The Court will use this framework when discussing the remaining
claims.
6

Plaintiff did not file a response brief to Hosto’s motion for partial summary judgment.
Plaintiff’s failure to address the issue of whether Hosto was required to obtain a license under the
TCSA will be viewed as a waiver of any objection to Hosto’s motion. Accordingly, the Court will
GRANT Hosto’s motion for partial summary judgment (Court File No. 40) without deciding the
issue raised on the merits. Plaintiff’s claims against Hosto for failing to obtain a license in violation
of the TCSA and §§ 1692e, e(1), e(5), e(10), and f of the FDCPA are dismissed.2 The only claims
that remain against Hosto are Plaintiff’s § 1692e claims brought with respect to the collection
lawsuit.
B.

LVNV Defendants’ Joint Motion for Summary Judgment

The LVNV Defendants seek to dismiss all of Plaintiff’s claims on the grounds that no
genuine issues of material fact exist. The Court will address the claims at issue below.
i. Section 1692e Violations Pertaining to the Collection Lawsuit
Section 1692e of the FDCPA generally provides “[a] debt collector may not use any false,
deceptive, or misleading representation or means in connection with the collection of any debt.” To
establish a violation of § 1692e, “(1) plaintiff[] must be a ‘consumer’ as defined by 15 U.S.C. §
1692; (2) the ‘debt’ must arise[] out of transactions which are ‘primarily for personal, family or
household purposes’ (see 15 U.S.C. § 1692a(5)); (3) defendant must be a ‘debt collector’ as defined
by 15 U.S.C. § 1692a(6); and (4) defendant must have violated § 1692e’s prohibitions.” Whittiker
v. Deutsche Bank Nat. Trust Co., 605 F. Supp. 2d 914, 926 (N.D. Ohio 2009). At issue here are the
following provisions of § 1692e, which prohibit the following:

2

For future purposes, the Court advises Plaintiff that, in the event he no longer seeks to
assert a claim, he should so indicate in his briefs. Neither the parties nor the Court should have to
guess as to Plaintiff’s intent.
7

(2) The false representation of-(A) the character, amount, or legal status of any debt; or
(B) any services rendered or compensation which may be lawfully received
by any debt collector for the collection of a debt.
...
(5) The threat to take any action that cannot legally be taken or that is not intended
to be taken.
...
(8) Communicating or threatening to communicate to any person credit information
which is known or which should be known to be false, including the failure to
communicate that a disputed debt is disputed.
...
(10) The use of any false representation or deceptive means to collect or attempt to
collect any debt or to obtain information concerning a consumer.
15 U.S.C. § 1692e. For purposes of their motion for summary judgment, the LVNV Defendants do
not dispute that Plaintiff was a consumer, that the “debt” arose out of transactions “primarily for
personal, family or household purposes,” and that the LVNV Defendants were “debt collectors.” The
only element in dispute is whether the LVNV Defendants violated any of the § 1692e provisions.
In the amended complaint, Plaintiff alleges the LVNV Defendants violated the provisions
of § 1692e in a number of ways. First, Plaintiff alleges the LVNV Defendants filed a collection
lawsuit against Plaintiff although they knew, if challenged, they would be unable to gather
“competent evidence” to show “(1) that Plaintiff had entered into the contract on which the
Defendants allegedly relied to file the collection lawsuit, or (2) how the amount claimed as owed
was calculated” (Am. Compl. ¶ 34). Plaintiff also alleges that the LVNV Defendants’ decision to
proceed with the lawsuit in this manner was a business decision that was part of a larger “pattern and
practice” used by Defendants to collect debts (see id. ¶¶ 22, 36). Plaintiff further contends the
LVNV Defendants used false, deceptive, and misleading representations or means in connection

8

with the collection of the debt “by stating in the Summons for Civil Warrant that Defendant LVNV
was entitled to an amount not expressly authorized by the agreement creating the debt or permitted
by law, without personal knowledge of whether a contract on which the Defendants allegedly relied
to file the collection lawsuit exists” (id. ¶ 37). Plaintiff also avers the collection lawsuit claim against
him was defective because it was “knowingly based on false, deceptive, and misleading statements
in the sworn affidavit” (id. ¶ 38). Plaintiff further alleges the LVNV Defendants demanded
compensation for interest and attorney’s fees in the summons and affidavit that could not lawfully
be received (id. ¶¶ 43, 57, 111). This and other conduct, according to Plaintiff, resulted in the LVNV
Defendants violating §§ 1692e, e(2)(A), e(2)(B), (5), (8), and (10).
The LVNV Defendants dispute Plaintiff’s claims and contend the evidence presently before
the Court supports dismissal. Their primary argument is that no genuine issues of material fact exist
with regard to Plaintiff’s § 1692e claims. They point out that Plaintiff has presented no evidence to
establish he did not owe the alleged debt to HSBC, a debt which was later assigned to LVNV, or that
the principal amount was not accurate as stated in both the summons and affidavit. The LVNV
Defendants further contend the HSBC Cardmember Agreement expressly provided for interest,
attorney’s fees, and costs. They also claim Plaintiff improperly engages in burden-shifting by
arguing the LVNV Defendants’ failure to present a copy of the contract is proof that they acted
improperly. For these and other reasons, the LVNV Defendants argue Plaintiff’s § 1692e claims
must be dismissed.
Plaintiff, in response, contends several genuine issues of material fact remain that must be
decided by a jury. Plaintiff argues the summons and sworn affidavit demand a different amount,
which creates a genuine issue of material fact as to whether one is false, deceptive, or misleading.

9

On a related note, Plaintiff claims the LVNV Defendants were not authorized to seek interest,
attorney’s fees, or costs in the summons and sworn affidavit in the absence of a written contract. See
Holcomb v. Cagle, 277 S.W.3d 393, 397-98 (Tenn. Ct. App. 2008). Plaintiff argues no contract is
in the record by which the Court can determine these additional fees were authorized. Plaintiff
further contends the absence of a contract also supports his argument that the LVNV Defendants
intentionally filed the lawsuit knowing they did not have the means or intend to obtain the means
to prove the debt. Finally, Plaintiff contends the LVNV Defendants threatened to take action that
could not legally be taken and communicated or threatened to communicate credit information that
it knew or should have known to be false.
Viewing the facts in the light most favorable to Plaintiff and applying the least sophisticated
consumer standard, the Court concludes Plaintiff has demonstrated genuine issues of material fact
exist with regard to his § 1692e claims. First, with regard to the debt amount owed, the Court
observes that the LVNV Defendants attempt to oversimplify the facts by contending the principal
amount was the same in both the summons and sworn affidavit. The LVNV Defendants are correct
that the principal amount did not vary in the relevant documentation. However, at issue are the
amounts Plaintiff was informed he owed to the LVNV Defendants.
The LVNV Defendants have provided various documents to supplement those offered as
proof by Plaintiff. A copy of the last billing statement sent from HSBC to Plaintiff in December
2006 indicates Plaintiff’s balance was $2,208.59 and his annual percentage rate of interest was
30.49% (Court File No. 44-2). Between August 2009 and January 2012, Plaintiff received
communications from Financial Recovery Services and then Hosto, each communication indicating
the sender was collecting a debt on behalf of LVNV. The balance amounts in the letters

10

progressively increased between August 2009 and January 2012 as follows: $2,208.59; $2,228.56;
$2,300.56; $2,725.22; $2,747; and $3,035.56 (Court File Nos. 15-1, 44-3 to 44-5). None of the
letters mention the applicable interest rate or that Plaintiff could be subject to other fees.
The Court further observes that, while the principal amount owed remained unchanged,
additional fees were both alluded to and incorporated into the sum listed in the summons and
affidavit. With regard to the affidavit, Hosto had Batson, an employee of Resurgent ( a company that
managed and serviced LVNV’s delinquent accounts) prepare a document titled “Plaintiff’s Affidavit
of Indebtedness and Ownership of Account” (Court File No. 15-2 at 2). In the affidavit, Batson
stated under penalty of perjury that he had reviewed LVNV’s business records and that Plaintiff’s
account had a balance of “$2,208.59 plus any additional accrued interest” (id.). The summons states
the principal balance was $2,208.59, plus accrued judgment interest in the amount of $550.76 at a
rate of 6%, plus reasonable attorney’s fees in the amount of $441.72, for a total of $3,201.06 (id. at
1). The fact that the total calculated in the summons is off by a penny is a negligible difference.
What concerns the Court is that there is a genuine dispute with regard to the interest rate applied-especially considering the HSBC billing statement listed the interest rate as 30.49% and the lack of
any information regarding the interest rate in the other communications with Plaintiff--as well as the
fact Plaintiff had no indication he was required to pay attorney’s fees prior to the issuance of the
summons. This is even more apparent after taking into account the least sophisticated consumer who
could arguably find these documents, at a minimum, misleading.
In an attempt to show no genuine issue of material fact exists with regard to the amounts
demanded, the LVNV Defendants submit a copy of an HSBC Cardmember Agreement (Court File
No. 44-1). The LVNV Defendants contend the HSBC Cardmember Agreement expressly provides

11

for attorney’s fees and interest at rates far greater than the 6% applied by Hosto. At trial, the LVNV
Defendants may be able to establish this document was part of the contract agreed to by Plaintiff and
that it supports their position. However, the Court is unable to make this determination presently for
a number of reasons. As a preliminary matter, the Court observes the HSBC Cardmember
Agreement is nearly indecipherable given the poor quality of the copy provided to the Court. Thus,
the Court cannot verify that the plain language of the agreement even provides for attorney’s fees,
though the Court does not dispute such language is often contained in these agreements. Similarly,
although the Court can barely decipher the applicable interest rates listed in the agreement, it does
not appear any of the listed rates match either the 6% imposed by Hosto or the 30.49% listed in the
final billing statement from HSBC. Finally, given that the HSBC Cardmember Agreement provided
by the LVNV Defendants is a generic form and there are no names, signatures, or other personal
identifiers to demonstrate this particular document is in anyway connected to Plaintiff’s original
agreement with HSBC, the Court concludes a genuine issue of material fact remains as to whether
the amounts demanded as well as the additional fees imposed are misleading, deceptive, or even
false.
The district court in Stonecypher v. Finkelstein Kern Steinberg & Cunningham, 2:11-CV-13,
2011 WL 3489685 (E.D. Tenn. Aug. 9, 2011) observed similar discrepancies were sufficient to state
a claim for relief under § 1692e. In Stonecypher, the communications at issue contained varying
balance amounts, though the initial balance was consistently listed as $1,622.42. Id. at *5. Two of
the communications had credit card statements attached noting the interest rate was accruing at a
rate of 29.99%. In contrast, the civil warrant indicated the plaintiff owed a “sum of $1,622.42 plus
interest at rate [sic] of 10% APR, attorneys fees if provided by contract, & the costs of this action.”

12

Id. As is relevant to the instant case, the district court in Stonecypher observed that the civil warrant
properly stated the initial balance but the 10% interest rate in the civil warrant was different from
the 29.99% amount in the credit card statements. Moreover, the court noted this was the first time
the defendant had sought attorney’s fees and costs.
One argument asserted by the defendant explaining the discrepancies in the civil warrant was
that the language regarding fees and costs was just standard language to protect their rights. In
response, the court stated, “Defendant’s failure to reference an interest rate, attorneys fees, or costs
in any prior communication is sufficient for the Court to conclude that Plaintiff has alleged a
possible claim that Defendant’s use of this language was false, deceptive or misleading as to the
amount of the debt.” Id. An alternative argument raised by the defendant pertained to the conflicting
interest rates applied. The defendant argued “it did not incorrectly state the amount of the debt
because HSBC simply intended to collect a lower amount than the amount of debt actually owed to
it and a lower amount of interest than that permitted by contract.” Id. The court, however, observed
the aforementioned credit card statements and the language in the civil warrant “cast doubt on this
assertion” and further noted the following:
At any rate, the language in the Civil Warrant reflecting the possibility of attorneys
fees and costs, and indicating a different interest rate, would still be misleading to the
least sophisticated consumer when considered in context with Defendant’s prior
communications. The fact that Defendant consistently listed the amount of the debt
as $1,622.42 on these communications does not detract from the misleading nature
of the communications.
Id. The court concluded the plaintiff had plausibly alleged facts to state a claim under § 1692e(2)(A),
which was one of the claims at issue in the case. Id. at 6.
Although the Stonecypher decision pertained to a motion to dismiss pursuant to Rule
12(b)(6) not a motion for summary judgment, the Court concludes the analysis applied in
13

Stonecypher is relevant and applicable to the proof that has been offered in this case. Here, Plaintiff
has shown a genuine issue of material fact exists with regard to the applicable interest rate,
especially given the discrepancy between HSBC’s last billing statement, the amount asserted in the
summons, and even the amounts allegedly contained in the HSBC Cardmember Agreement. Further
the Court observes that a genuine issue as to whether attorney’s fees and costs were properly
asserted in the summons still remains. Because these representations could be deemed misleading,
deceptive, or even false to the least sophisticated consumer, the Court concludes Plaintiff’s claims
brought pursuant to § 1692e, e(2)(A), e(2)(B), and e(10) should be allowed to proceed. Moreover,
whether the LVNV Defendants threatened to take action that could not be legally taken or
communicated credit information known or that it should have known to be false in violation of §§
1692e(5) and e(8), respectively, would also hinge in part upon this determination. Accordingly, the
Court will DENY the LVNV Defendants’ motion to dismiss as it pertains to Plaintiff’s § 1692e
claims.
ii. Claims Pertaining to Whether LVNV and Sherman are “Collection Services”
The LVNV Defendants contend Plaintiff’s claims that LVNV and Sherman are liable for
violating 15 U.S.C. §§ 1692e(5), f, and f(1) due to their failure to obtain a license under the
Tennessee Collection Services Act or the “TCSA” must be dismissed as a matter of law. At the
outset, the LVNV Defendants note Plaintiff fails to make any argument with respect to Sherman.
The LVNV Defendants argue LVNV not Sherman is the owner of the debt. Therefore, the claims
are inapplicable to Sherman. Given that Plaintiff failed to respond to this argument asserted by the
LVNV Defendants, they contend the claims against Sherman should automatically be dismissed.
Second, the LVNV Defendants point out that the Court addressed a similar issue regarding the

14

applicability of the TCSA license requirement when deciding the LVNV Defendants’ motion to
dismiss. The Court ruled that, in light of the express terms of the statute which was amended in
2009, LVNV was a “collection service” and therefore must be licensed. The Tennessee Collection
Service Board, however, has since reaffirmed an earlier Clarification Statement, which the LVNV
Defendants claim supports their argument that LVNV is not a “collection service.”
Though Plaintiff makes no mention of Sherman, he opposes the LVNV Defendants’
arguments with respect to LVNV. In particular, he argues the Court should rely on its previous
decision and reject the LVNV Defendants’ renewed argument. Alternatively, to the extent the Court
gives credence to the Clarification Statement, Plaintiff argues the statement is inapplicable to LVNV
because the Clarification Statement applies to “Passive Debt Buyers” whereas LVNV is an “Active
Debt Buyer.”
The first issue raised by the LVNV Defendants is simple to resolve. As this Court has noted
several times before, Plaintiff has failed to respond to a contested issue. This time, the issue pertains
to whether the claims at issue are applicable to Sherman. Plaintiff’s failure to respond is deemed a
waiver. Accordingly, Plaintiff’s claims on this grounds brought with respect to Sherman are
dismissed.
The next issue pertains to the FDCPA claims asserted against LVNV. The provisions of the
FDCPA at issue are §§ 1692e(5), f, and f(1).3 A violation of § 1692e(5) pertains to “[t]he threat to
take any action that cannot legally be taken.” Section 1692f pertains to whether the debt collector
used “unfair or unconscionable means” in its efforts to collect the debt and § 1692f(1) addresses

3

The amended complaint also mentioned § 1692e(10). However, because the parties do not
include this provision in their discussion of the TCSA, the Court concludes this provision is no
longer at issue.
15

whether those means were used with respect to “the collection of any amount (including any interest,
fee, charge, or expense incidental to the principal obligation) unless such amount is expressly
authorized by the agreement creating the debt or permitted by law.” Plaintiff’s theory is that
LVNV’s failure to obtain a collection service license under the TCSA, which Plaintiff contends was
required by law, subjects LVNV to liability under the FDCPA.
Before inquiring whether Plaintiff has established a violation of the FDCPA, the Court must
first determine whether LVNV was required to obtain a license as a “collection service” under the
TCSA. If LVNV was not required to obtain a license under the TCSA, Plaintiff’s claims necessarily
fail. As this Court explained in its previous decision (see Court File No. 36), the TCSA states “[n]o
person shall commence, conduct or operate any collection service business in this state unless the
person holds a valid collection service license issued by the board under [the TCSA] or prior state
law.” Tenn. Code Ann. § 62-20-105(a). A “collection service” is defined as “any person that engages
in, or attempts to engage in, the collection of delinquent accounts, bills or other forms of
indebtedness irrespective of whether the person engaging in or attempting to engage in collection
activity has received the indebtedness by assignment or whether the indebtedness was purchased by
the person engaging in, or attempting to engage in, the collection activity.” § 62-20-102(3).
The Court observes that the Tennessee Collection Service Board has issued a Clarification
Statement that carves out an exception to the general definition of a “collection service.” The Board
is tasked by the state legislature with “promulgat[ing] rules relating to the general conduct of
collection service business that are consistent with recognized business practice and this chapter [of
the TCSA].” Tenn. Code Ann. § 62-20-104(g). Further, the Board has the authority to “suspend,
revoke or refuse to renew any license” as provided by statute. Tenn. Code Ann. § 62-20-115(b)(1).

16

The Clarification Statement at issue, which is titled “Clarification Statement of the Tennessee
Collection Service Board Regarding Debt/Judgment Purchasers and ‘Passive’ Debt Buyers,” reads
as follows:
It is currently the opinion of the Tennessee Collection Service Board that entities
who
purchase judgments or other forms of indebtedness will be deemed a “collection
service” if they collect or attempt to collect the debt or judgment subsequent to their
purchase of the debt or judgment. However, entities who purchase debt or judgments
in the manner described above but who do not collect or attempt to collect the
purchased debt or judgment, but rather assign collection activity relative to the
purchased debt to a licensed collection agency or a licensed attorney or law firm
shall not be deemed to be a “collection service”.
Tennessee Collection Service Board, Clarification Statement of the Tennessee Collection Service
Board

Regarding

Debt/Judgment

Purchasers

and

‘Passive’

Debt

Buyers,

http://www.tn.gov/regboards/collect/documents/CSBCLARIFICATIONSTATEMENTREGARD
INGDEBT.pdf (emphasis added). Although the statement was initially issued in January 2009, prior
to the 2009 amendments to the TCSA, the parties have brought to the Court’s attention in their most
recent filings that the Board reaffirmed the Clarification Statement subsequent to the 2009
amendments to the TCSA. In fact, the Board as recently as May 9, 2012, reaffirmed the statement
at one of its meetings “and advised it would currently stand as written” (Court File No. 44-10).
Plaintiff argues the Court should rely on its earlier ruling in which it concluded it would rely
upon the language in the statute in making its decision. The Court, however, reminds Plaintiff that
the primary reason it reached that decision was because the statute was amended subsequent to the
issuance of the Clarification Statement. See Court File No. 36 at 20 (“The LVNV Defendants are
correct that this statement stands in stark contrast to § 62-20-102(3). However, as noted by Plaintiff,
the Tennessee legislature revised § 62-20-102(3) after the Clarification Statement was issued by the

17

Tennessee Collection Service Board. Thus, to the extent there is a conflict between the language in
the statute and the guidance provided by the Board, the Court must follow the language in the
statute.”). The parties had not made the Court aware at the time that the Board--that is, the body duly
authorized with promulgating rules for the TCSA--had since reaffirmed the application of the
Clarification Statement. The Clarification Statement provides guidance as to how the provision
defining a “collection service” should be construed. Plaintiff also argues Attorney General Opinion
97-131 and the district court decision in Smith v. LVNV Funding, LLC, 894 F. Supp. 2d 1045 (E.D.
Tenn. 2012) interpreted the statute differently. However, the Court observes that the Clarification
Statement was not at issue in these matters either because it was not yet in existence or because it
was not disputed by the parties, respectively.
The Clarification Statement provides that an entity that purchases debt and does not collect
or attempt to collect the purchased debt, but instead assigns such collection activity to a licensed
attorney or law firm is not a “collection service.” Here, LVNV has established that, through its
servicer Resurgent, it assigned its collection activities to Hosto. Therefore, under the Clarification
Statement of the Board, LVNV would not be a “collection service.”
Plaintiff attempts to argue the Clarification Statement is inapplicable to LVNV because the
Clarification Statement only applies to Passive Debt Buyers and LVNV is an Active Debt Buyer.
However, the plain language of the Clarification Statement does not support this conclusion. The
complete title of the Clarification Statement reads as follows: “Clarification Statement of the
Tennessee Collection Service Board Regarding Debt/Judgment Purchasers and ‘Passive’ Debt
Buyers.” The Clarification Statement appears to apply to both “Debt/Judgment Purchasers” and
“‘Passive’ Debt Buyers.” It is undisputed that LVNV is a “Debt/Judgment Purchaser.” Moreover,

18

the actual text of the Clarification Statement refers to entities who have purchased debt or
judgments. As noted by LVNV, the Clarification Statement make no other mention of a “passive
debt buyer” nor does it further define this term. Because the Court concludes LVNV was a
Debt/Judgment Purchaser and because the Court concludes the Clarification Statement was
applicable to LVNV, it is unnecessary to delve into Plaintiff’s further arguments regarding whether
LVNV was a passive or active debt buyer. Moreover, because Plaintiff has not established a
violation of the TCSA, Plaintiff cannot make out his claim pursuant to the FDCPA.
Accordingly, for the reasons provided above, the Court concludes Plaintiff’s claims against
LVNV and Sherman brought under the FDCPA with regard to whether the parties failed to obtain
a license under the TCSA must be DISMISSED.
iii. Section 1692g(a)(3)-(5)
The LVNV Defendants argue Plaintiff’s § 1692g(a)(3)-(5) claims against Sherman, LVNV,
and Resurgent should be dismissed because no genuine issue of material fact exists with regard to
whether Plaintiff was provided with the requisite notice. In the amended complaint, Plaintiff alleges
Sherman, LVNV, and Resurgent failed to send Plaintiff a written notice containing his rights and
other information as required under § 1692g(a)(3)-(5) within five days after the “initial
communication” with Plaintiff in connection with the debt collection effort and within one year of
the filing of the original complaint. The LVNV Defendants, however, contend Plaintiff was provided
with notice in the first written communication between Hosto and Plaintiff. Moreover, the LVNV
Defendants point out that Hosto advised Plaintiff in every communication that it was representing
LVNV for purposes of collecting the debt and that all communications would be through Hosto.
Hence, the LVNV Defendants contend any suggestion by Plaintiff that Hosto had been retained by

19

a “subsequent” client and a new § 1692g notice was required is senseless. Plaintiff, on the other
hand, cites various cases demonstrating that a § 1692g notice is required for any initial
communication made by a subsequent debt collector. Plaintiff’s theory appears to be that when the
summons was served, LVNV was required to include the requisite § 1692g notice information
because it involved a “subsequent debt collector.”
Section 1692g(a) reads as follows:
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-...
(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 written 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 creditor.
15 U.S.C. § 1692g(a).
Although Plaintiff contends the service of the summons should have contained a § 1692g
notice because it was an initial communication from LVNV, the Court finds this argument
unavailing. As noted by the LVNV Defendants, throughout the collection efforts Hosto acted on
behalf of LVNV as counsel, and when counsel made the “initial communication” with Plaintiff, the
requisite § 1692g notice was included. That LVNV was the plaintiff in the state court case does not

20

change the fact that it was still represented by Hosto who sent out the communication, and Hosto
had previously included the requisite § 1692g notice in its first communication with Plaintiff.
Plaintiff has not demonstrated that LVNV should be treated as a “subsequent debt collector” in this
context. The Court further observes Plaintiff does not even attempt to explain how Resurgent or
Sherman were “subsequent debt collectors.” Thus, the Court deems any such argument as waived.
Accordingly, Plaintiff’s § 1692g(a)(3)-(5) claims against LVNV, Sherman, and Resurgent
will DISMISSED.4
C.

Plaintiff’s Motion for Partial Summary Judgment

Plaintiff moves the Court to issue an order that he is entitled to summary judgment with
respect to his § 1692e(5) claim based on LVNV’s failure to obtain a license under the TCSA.
Because the Court concluded above that LVNV was not required to obtain a collection license, the
Court cannot grant Plaintiff the relief he has requested. In the absence of a violation of the TCSA,
Plaintiff cannot establish a violation of § 1692e(5). Thus, for the same reasons the Court granted the
LVNV Defendants’ motion on this grounds, the Court must DENY Plaintiff’s motion for partial
summary judgment.

4

In his response brief, Plaintiff asserts as a separate argument that LVNV is responsible for
Hosto’s actions under the doctrine of respondeat superior. The Court observes that the district court
in Clark v. v. Main St. Acquisition Corp., 1:12-CV-408, 2013 WL 2295879 (S.D. Ohio May 24,
2013), was presented with a similar question. Noting that a debt collector is not always responsible
for the actions of its attorney, the court considered the following test for vicarious liability under the
FDCPA: “the principal must exercise control over the conduct or activities of the agent.” Id. at *7
(quoting Bodur v. Palisades Collection, LLC, 829 F. Supp. 2d 246 (S.D.N.Y. 2011)); see also Clark
v. Capital Credit & Collection Servs., Inc., 460 F.3d 1162, 1173 (9th Cir. 2006) (“Under general
principles of agency—which form the basis of vicarious liability under the FDCPA—to be liable
for the actions of another, the ‘principal’ must exercise control over the conduct or activities of the
‘agent.’”). While it is certainly arguable that LVNV as the “principal” exercised control over the
conduct or activities of Hosto, the “agent,” the Court concludes the nature of the relationship
between LVNV and Hosto is a factual matter that should be reserved for trial.
21

IV.

CONCLUSION
For the foregoing reasons, the Court will GRANT Hosto’s motion for partial summary

judgment (Court File No. 40); GRANT IN PART and DENY IN PART the LVNV Defendants’
joint motion for summary judgment (Court File No. 42); and DENY Plaintiff’s motion for partial
summary judgment (Court File No. 49). Plaintiff’s § 1692e claims brought against the LVNV
Defendants and Hosto will remain in the case; all other claims are dismissed.
An Order shall enter.

/s/
CURTIS L. COLLIER
UNITED STATES DISTRICT JUDGE

22