Dorrian v. LVNV Funding, LLC (and a consolidated case) (Lawyers Weekly No. 10-053-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12355 TARA DORRIAN[1] vs. LVNV FUNDING, LLC (and a consolidated case[2]). Suffolk. January 5, 2018. – April 9, 2018. Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ. Debt. Collection Agency. Consumer Protection Act, Collection of debt. Words, “Debt collector.” Civil actions commenced in the Superior Court Department on August 22 and December 30, 2014. After consolidation, the case was heard by Janet L. Sanders, J., on motions for class certification and for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. David Schultz (Andrew M. Schneiderman also present) for LVNV Funding, LLC. Kenneth D. Quat (Josef C. Culik also present) for Tara Dorrian & another. The following submitted briefs for amici curiae: Nadine Cohen & Philip Weinberg for Greater Boston Legal Services & others. Merrily S. Gerrish, Special Assistant Attorney General, & Heather L. Bennett for division of banks of the Office of Consumer Affairs and Business Regulation. Donald S. Maurice, Jr., & Brady J. Hermann for Receivables Management Association International, Inc. Daniel S. Blynn, Meredith L. Boylan, & Benjamin E. Horowitz, of the District of Columbia, David L. Feinberg, Joseph L. Demeo, & Lawrence S. Delaney for Cavalry SPV I, LLC. KAFKER, J. The primary issue presented is the definition of “debt collector” under G. L. c. 93, § 24, particularly its application to the statute’s licensing requirement. After being sued for the failure to pay debts, the plaintiffs, Tara Dorrian and Virginia Newton, each individually filed suit against the defendant, LVNV Funding, LLC (LVNV), claiming unlicensed debt collection. The plaintiffs also alleged violations of G. L. c. 93A, asserted claims of unjust enrichment,[3] and sought to proceed against LVNV in a class action suit. A judge in the Superior Court consolidated the cases and certified them as a class action. On cross motions for summary judgment, the judge concluded that LVNV violated G. L. c. 93, § 24A, because it operated as a debt collector without a license and granted summary judgment to the plaintiffs. On the claim that LVNV violated G. L. c. 93A, the judge granted summary judgment to LVNV because it met the exemption from liability in G. L. c. 93A, § 3, as the division of banks of the Office of Consumer Affairs and Business Regulation (division) had permitted LVNV to operate without a license. […]
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 […]
Saturn Funding, LLC v. NRO Boston, LLC, et al. (Lawyers Weekly No. 12-017-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO.: 16-2523B SATURN FUNDING, LLC vs. NRO BOSTON, LLC, NORTH RIVER OUTFITTERS, NRO SPORT, LLC, NRO EDGARTOWN LLC, and ALICE INDELICATO and JASON INDELICATO MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ NRO BOSTON, LLC AND NORTH RIVER OUTFITTERS, NRO SPORT, LLC, NRO EDGARTOWN LLC, JASON INDELICATO AND ALICE INDELICATO’S MOTION TO REMOVE DEFAULT AND FILE ANSWER AND AFFIRMATION DEFENSES LATE The defendants move under Mass. R. Civ. P. 55(c) and 60(b) to vacate a Default Judgment by Confession against NRO Boston, LLC, North River Outfitters, NRO Sport, LLC, NRO Edgartown LLC, Alice Indelicato, and Jason Indelicato that was obtained by Saturn Funding, LLC. Plaintiff opposes this motion on the grounds that the defendants have not shown good cause under Mass.R.Civ.P. 55(c) to set aside the entry of Mass.R.Civ.P. 55(a) default. Pursuant to the plaintiff’s request under Mass. R. Civ. P. 55(b)(1), defendants were all defaulted. [1] Judgment by Default entered on January 3, 2017. For the reasons stated herein, the defendants’ motion is ALLOWED. ANALYSIS Mass.R.Civ.P. 60(b) states in part: On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b) , (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void… or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order or proceeding was entered or taken… This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court… Whether or not to grant relief under Mass.R.Civ.P. 60(b) “rests within the sound discretion of the judge” and is “to be applied ‘toward the objective that legal procedure becomes the vehicle for determination of the issues upon their merits instead of upon refinement of procedure…’” Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 429 (1979) (quoting Florida Investment Enterprises, Inc. v. Kentucky Co., 160 So. 2d 733, 736 (Fla. Dist. Ct. App. 1964)). “Rule 60(b) is remedial in character and subject to a liberal interpretation and application in […]