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Prince v. Lvnv Funding, LLC

United States District Court, M.D. Alabama, Northern Division

July 9, 2014



W. KEITH WATKINS, Chief District Judge.

Upon consideration of Defendant LVNV's motion for reconsideration (Doc. # 50), it is ORDERED that the motion is GRANTED and that the court's memorandum opinion and order dated June 24, 2014, is VACATED and REPLACED with the following memorandum opinion and order.[1]


This action arises primarily under the Fair Debt Collection Practices Act ("FDCPA"), which Congress enacted "to eliminate abusive debt collection practices by debt collectors." 15 U.S.C. § 1692(e). Before the court are Defendant LVNV Funding, LLC's motion for summary judgment (Doc. # 15), which has been fully briefed (Docs. # 26, 31), Plaintiff Fermer Prince's motion to strike certain affidavit testimony submitted by LVNV, as amended (Docs. # 16, 25), which has been briefed (Docs. # 17, 19, 24, 30), and LVNV's motion to strike the Affidavit of William Azar (Doc. # 29), also with complete briefing (Doc. # 35, 38). Upon consideration of the parties' arguments, the evidence, and the relevant law, the court finds that the motions are due to be denied.


The court has subject-matter jurisdiction over Ms. Prince's claims pursuant to 28 U.S.C. §§ 1331 and 1367 and 15 U.S.C § 1692k(d). Personal jurisdiction and venue are uncontested.


A. Motions to Strike

Ms. Prince's original motion to strike certain affidavit testimony (Doc. # 16) does not identify the rule authorizing the relief that she seeks. Thus, the court will consider the motion to strike as a notice of Ms. Prince's objection to the testimony. See Norman v. S. Guar. Ins. Co., 191 F.Supp.2d 1321, 1328 (M.D. Ala. 2002) (taking same approach); see also Fed. R. Civ. P 56(c)(2) ("A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence."). The objections will be entertained prior to consideration of LVNV's motion for summary judgment, which relies on the affidavits.

In Ms. Prince's amended motion to strike (Doc. # 25), Ms. Prince complains that untimely disclosed expert opinions are offered in the affidavits. Federal Rule of Civil Procedure 37(c) "provides the consequences for a party's failure to disclose, pursuant to the requirements of Rule 26." Nance v. Ricoh Elecs, Inc., 381 F.App'x 919, 922 (11th Cir. 2010). "If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Id. (citing Fed.R.Civ.P. 37(c)(1)).

In LVNV's motion to strike (Doc. # 29), it objects to Mr. Azar's testimony on the grounds that it is not based on his personal knowledge, it invades the court's province of making legal conclusions, and is disallowed by the Alabama Rules of Professional Conduct. Like Ms. Prince's motion to strike, LVNV's motion to strike will be treated as an objection. See Norman, 191 F.Supp.2d at 1328.

B. Motion for Summary Judgment

To succeed on summary judgment, the movant must demonstrate "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 court must view the evidence and the inferences from that evidence in the light most favorable to the nonmovant. Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010).

The party moving for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This responsibility includes identifying the portions of the record illustrating the absence of a genuine dispute of material fact. Id. Or a movant who does not have a trial burden of production can assert, without citing the record, that the nonmoving party "cannot produce admissible evidence to support" a material fact. Fed.R.Civ.P. 56(c)(1)(B); see also Fed.R.Civ.P. 56 advisory committee's note ("Subdivision (c)(1)(B) recognizes that a party need not always point to specific record materials.... [A] party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact."). If the movant meets its burden, the burden shifts to the nonmoving party to establish - with evidence beyond the pleadings - that a genuine dispute material to each of its claims for relief exists. Celotex, 477 U.S. at 324. A genuine dispute of material fact exists when the nonmoving party produces evidence allowing a reasonable fact finder to return a verdict in its favor. Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001).


A. Facts

Ms. Prince alleges that LVNV is a debt collector within the meaning of the FDCPA. (Compl., at ¶ 25.) LVNV denies that it is a debt collector. (Ans., at ¶ 25.) It maintains that it holds debts purchased from original creditors, but it does not directly collect on the debts or contact debtors. ( See Aff. LVNV Funding, LLC (Doc. # 15-1).) LVNV's dispute of its status as a debt collector is not a contention asserted in support of its motion for summary judgment.[2]

Ms. Prince's alleged debt originated with Citibank in 1996 as a Sears MasterCard account. Years later, the account went into default, and Citibank sold the debt in August 2010 to Sherman Originator III, LLC. ( See Doc. # 26-3.) LVNV subsequently acquired ownership of the debt.

On July 16, 2012, LVNV employed Zarzaur & Schwartz, a Birmingham law firm, to sue Ms. Prince in Montgomery County District Court[3] to collect $2, 465.85, plus costs of $126.00. LVNV furnished Zarzaur & Schwartz with an account number from Citibank, the date that the account was opened (September 1, 1996), the charge-off date, the amount outstanding, and Fermer I. Prince's name, phone number, and home address. (Aff. Ben Zarzaur (Doc. # 15-2).) LVNV says that it also furnished an affidavit to Zarzaur & Schwartz attesting to its ownership of the debt and to the amount due, [4] as well as several Sears MasterCard account statements bearing Ms. Prince's name and address from 2009 and 2010. Ms. Prince alleges that this information was legally insufficient to entitle LVNV to a judgment, and she alleges that LVNV brought the suit with knowledge that its evidence was lacking and with knowledge that she disputed the debt.

Ms. Prince says that she communicated with LVNV, after receiving a letter and prior to the initiation of the collection suit, to deny her obligation for the debt. ( See Doc. # 15-3, at ¶ 13 (Pl.'s Resp. to Def.'s First Set of Interrogatories).) She represents that she never opened the account, but rather, her husband opened the account in her name without her knowledge. (Doc. # 15-3, at ¶¶ 4-8 (Pl.'s Resp. to Def.'s First Set of Interrogatories).)[5] LVNV maintains that Ms. Prince never ...

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