Dorrian v. LVNV Funding, LLC; Newton v. LVNV Funding, LLC (Lawyers Weekly No. 12-034-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 14-2684 BLS2 TARA DORRIAN, individually and on behalf of all other persons similarly situated, Plaintiff vs. LVNV FUNDING, LLC, Defendant CONSOLIDATED WITH No. 14-4072 BLS 2 VIRGINIA NEWTON, individually and on behalf of all other persons similarly situated, Plaintiff vs. LVNV FUNDING, LLC Defendant MEMORANDUM OF DECISION AND ORDER ON PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND ON CROSS MOTIONS FOR SUMMARY JUDGMENT These two consolidated cases allege unlawful debt collection activity by defendant LVNV Funding, LLC (LVNV). Specifically, plaintiffs claim that LVNV has used courts of this Commonwealth to collect consumer debts and otherwise engaged in collection activities without having obtained the requisite license from the Division of Banks. The Complaints in the two cases allege a violation of the Massachusetts Fair Debt Collection Practices Act, G.L.c. 93 24 et. seq. (MDCPA) and Chapter 93A.[1] Plaintiffs seek declaratory and injunctive relief together with damages, attorney’s fees and costs. Now before the Court are plaintiffs’ Motion for Class Certification and the parties’ Cross Motions for Summary Judgment in each of the two cases. Although the underlying facts are not in dispute, the motions raise a host of legal issues which are not easy to resolve. After careful review of the parties’ submissions, this Court concludes that the plaintiffs’ Motion for Class Certification must be ALLOWED. As to the cross motions, LVNV’s Motions for Summary Judgment as ALLOWED as to Count Three and DENIED as to Count One. Plaintiffs’ Cross Motions for Summary Judgment are ALLOWED as to Count One but DENIED as to Count Three. As to the relief appropriate, this Court defers that to another day. BACKGROUND[2] LVNV’s Business LVNV is a Delaware limited liability company registered to do business in Massachusetts. In its Application for Registration filed with the Secretary of State, LVNV described the general character of its business as “consumer debt collection.” In a letter to the Division of Banks dated August 3, 2012, LVNV’s attorney described these debts as “previously defaulted consumer account portfolios.” Although LVNV acquires these debts in order to collect on them and not for resale to others, it has never been licensed with the Division of Banks as a debt collector pursuant to the MDCPA. LVNV has stipulated that it uses instrumentalities of interstate commerce and the mails in conducting its business in Massachusetts. Between August 2009 and the present, at least 99 percent of LVNV’s gross revenue has been derived from collecting on unpaid consumer debts owned by it. LVNV itself has no employees, however. To perform the tasks necessary to collect […]