Wednesday, July 16, 2014

Tennessee Deficiency on Foreclosure–Call Barnette Law Offices!

If you have been contacted by a mortgage lender, collection agency, debt buyer, or a law firm in Tennessee regarding a “deficiency” after your home was foreclosed upon, please read the following inasmuch as you have defenses and potential causes of action . . . 

In Tennessee, a creditor can sue for breach of contract (i.e. to recover unpaid debt) for up to 6 years from the date of the default in payment.

However, Tenn. Code Ann.  § 35-5-118(d) provides that a post-foreclosure action to obtain a deficiency judgment “shall be brought not later than the earlier of:

(A) Two (2) years after the date of the trustee’s or foreclosure sale, exclusive of any period of time in which a petition for bankruptcy is pending; or

(B) The time for enforcing the indebtedness as provided for under §§ 28-1-102 and 28-2-111.

So, the creditor has to sue on the earlier of two years or within the original 6 year statute of limitations. Two years is generally going to be the earlier of those two.

For many creditors, waiting a few years after a foreclosure is a reasonable move, to see if the debtor’s fortunes turn around. But, under this statute, a creditor can’t wait too long, and no later than 2 years.

If you’ve received letters or have been sued under the aforementioned scenario above, contact us at !

Wednesday, July 9, 2014

Nashville DUI Lawyers–Barnette Law Offices

Breath Test
If you have been arrested and charged with driving under the influence of alcohol (DUI) in Davidson County, Tennessee, you are likely familiar with the Intoximeter EC/IR II.  This device is utilized by law enforcement officers in Nashville Metro after a DUI arrest to determine an individual’s blood alcohol content (BAC).  Contrary to what you may have heard, breath testing devices, like the Intoximeter EC/IR II, are not without flaws and routinely produce inaccurate results in DUI cases.

For example, symptoms associated with diabetes, gastroesophageal reflux disease (GERD), liver disease, heartburn, asthma or other illness have historically enhanced the results of breath test machines in Tennessee.  The same is true for some types of chewing gum, breath mints and cough syrup.  Only seasoned DUI defense lawyers like Jason Barnette and those at Barnette Law Offices can successfully challenge the results of the breath test in Tennessee.

Prior to the administration of the Intoximeter EC/IR II test, law enforcement officers are required by Tennessee law to hold the subject under constant observation for a period of at least 20 minutes to ensure no foreign substance is introduced into the mouth of the subject.  Otherwise, the breath test result is inadmissible.

In a DUI case in the Nashville Metro area, police officers are the individuals designated to administer the breath test.  However, law enforcement officers typically receive minimal training about how the machine actually functions.  A good Tennessee DUI defense attorney can determine whether the officer in your case followed protocol and properly administered the breath test.

If you disagree with the results of the breath test after being arrested for DUI, you have a right under Tennessee DUI law to request a blood or urine test.  In fact, the State is required to initially cover the cost of the test if you are unable to pay for the test at the time of your arrest for DUI.


Every case is different and every DUI lawyer is different.  You want a DUI lawyer with the most experience, the best reputation and most importantly, the ability to get you the best result.  If results matter to you, call Barnette Law Offices today for a free consultation!

Field Sobriety Test
In Tennessee, if an officer has reasonable grounds to believe a driver is DUI or impaired, he may request that the driver perform field sobriety tests.  Be advised that in Tennessee, field sobriety tests are voluntary.  There is no criminal or administrative penalty for refusal of field sobriety tests during a DUI investigation.

Field sobriety tests are divided attention tests which require an individual charged with DUI to follow instructions and perform physical maneuvers requiring balance and coordination.  According to NHTSA, an individual with a BAC above .08 g/dL will have difficulty performing these standardized tests.

In Tennesee, the most common field sobriety tests utilized are the Horizontal Gaze Nystagmus Test, the Walk and Turn Test, and the One Leg Stand Test (note the HGN test is inadmissible).  Numerous reasons exist as to why an individual may struggle with field sobriety tests other than intoxication or impairment.  For example, these tests are routinely administered late at night to individuals who are tired and frightened with the consequences of a DUI arrest fresh on their mind.  Medical conditions, including pre-existing injuries and weight, can impact the field sobriety test results.

If you have been arrested for DUI in Nashville, Davidson County or anywhere in Tennessee and performed field sobriety tests, it is crucial that you contact an attorney right away to explore all possible defenses to the allegation of the arresting officer.


The Nashville DUI Lawyer Jason Barnette and Barnette Law Offices are ready to put their skill and knowledge to work for you!

DUI Drugs
Law Enforcement officers throughout Tennessee and particularly, Nashville have recently started cracking down on drivers perceived to be impaired by controlled substances or drugs. Many believe that in order to be arrested for DUI with drugs or controlled substances in Tennessee, an individual must have taken some type of illegal substance.   It may surprise you to learn that in Tennessee, a driver can be arrested for DUI simply for driving after taking prescribed medication.

In defending against a DUI with drugs charge, it is critical that you be proactive in your defense.  For example, upon release from custody, securing an independent blood or urine test immediately following the arrest can be a useful tool to prove the amount of drugs or controlled substances consumed was not enough to cause impairment.  Oftentimes, law enforcement officers in DUI cases never take the appropriate steps to secure blood or urine test samples through the Tennessee Bureau of Investigation.

Law enforcement officers throughout the State of Tennessee are being certified as Drug Recognition Experts (DRE) trained to secure evidence in DUI cases.   In cases involving DUI with drugs or controlled substances, it is imperative that you contact an attorney skilled in DRE tactics to defend you.

It is imperative that you contact a DUI attorney skilled in DRE tactics, like Tennessee DUI Lawyer Jason Barnette and those at Barnette Law Offices, to defend you.right away!

Debt Collection Calls and Lawsuits in Tennessee –Call Barnette Law Offices

Consumer

Have you been getting too many automated debt collection calls? If so, you may be entitled to compensation under the Fair Debt Collection Practices Act (FDCPA) and the Telephone Consumer Protection Act (TCPA).

Illegal Debt Collection Practices

If you owe someone money, they have a right to try and collect it by calling you. However, it matters how many times they call you a day, week or month using , also known as robocalls, which are automated phone calls that use both a computerized autodialer and a computer-delivered pre-recorded message.  In fact, calling without your express prior consent is illegal under the .

A U.S. District Court judge in Tennessee recently ruled that 17 calls a month was too much and that consumers who received these calls are entitled to file suit against the debt collector. In his opinion, he reasoned:

"The frequency of [the defendant's] calls to [the plaintiff's] telephone and the manner in which [the defendant] called [the plaintiff's] cellular telephone using an automatic telephone dialing system could plausibly cause an unsophisticated consumer to feel harassed, oppressed or abused." It's that language which can be seen in several debt collection consumer laws.

Consumer Debt Protection Laws

Consumers are protected by several laws to make sure that debt collection practices are fair and reasonable. The and the Telephone Consumer Protection Act are two of those laws which, if violated, can result in up to $1,500 in fines per violation. Here's how they work:

  • FDCPA. The prohibits debt collectors from using telephone calls “repeatedly or continuously with intent to annoy, abuse or harass.”
  • TCPA. The prohibits calls using any automatic telephone dialing system or artificial or prerecorded voices to several cell phones and other places.

Debt Collector Violations Getting Worse

The number of debt collectors who violate these consumer protection laws has doubled over the past few years according to the Federal Trade Commission. However, debt collection lawyers say that consumers do not have to put up with this behavior and encourage them to seek the advice of an attorney to make the calls and harassment stop once and for all.

If a debt collector has engaged in any of these abusive or unfair debt collection practices, contact the and at  for a free evaluation!

Tennessee FDCPA Lawyers–Barnette Law Offices

Consumer

The (FDCPA) was enacted to stop abusive, deceptive, and unfair debt collection practices by debt collectors and debt purchasers such as Midland Funding, Asset Acceptance, CACH, Portfolio Recovery Associates, Cavalry Portfolio Services, etc. If you believe you have been a victim of unfair practices of a debt collector or if you’ve been sued by a debt collector or debt purchaser in a   you may be entitled to money damages and payment of your attorneys’ fees.

A Debt Collector cannot:

  • Call you on telephone repeatedly and at odd hours
  • Call you, but not announce who he/she is
  • Disclose information of your debts to third parties
  • Use abusive language
  • Contact you after written notification that you do not want to be contacted
  • Claim to be affiliated with any governmental organization
  • Misrepresent the character, amount or legal status of a debt
  • Threaten to take action not validated
  • Threaten or communicate false credit information
  • Use deceptive methods to collect debts
  • ... and more
You can:
  • Reduce or completely zero your interest payment
  • Avoid or reduce late payment fees
  • Combine several loans into a single low monthly payment plan
  • Get your credit reports corrected
  • Remove invalid or time-lapsed entries in your credit reports
  • ...and more

If a debt collector has engaged in any of these abusive or unfair debt collection practice, contact the at  for a free evaluation!

Saturday, July 5, 2014

Debt Collectors Calling–Call Barnette Law Offices

A. INTRODUCTION

The Telephone Consumer Protection Act (“TCPA”) is a hot topic today in the collection industry.  Lawsuits alleging violations of the TCPA are increasing, and because statutory damages may be awarded under the TCPA for each violation and without any cap, such suits threaten collectors with potentially ruinous liability through class action litigation.  (See, e.g., Foreman v. Data Transfer, Inc. (E.D. Pa. 1995) 164 F.R.D. 400, 404-405.)  The TCPA potentially imposes amalgamated damages against debt collectors in a way not permitted under other statutory schemes designed to regulate collections.  See, e.g. FDCPA, 15 USC 1692k(a)(2)(B) (capping statutory class action damages at $500,000 or 1% of the collector’s net worth).  When one considers that $500, or even $1,500, in statutory damages may be imposed for each violative cell phone call under the TCPA, it becomes readily apparent that even a few hundred, much less thousands (or millions) of calls, may lead to truly ruinous damages if an “adding-machine” approach is taken to the statute’s interpretation.

This article attempts to pierce the rhetoric that has grown up around the TCPA, and to put its “urban legends” into perspective.  Please note this article is not designed to be a comprehensive analysis, but rather it is intended to provide consumers, with a brief overview, and to act as an “A B C” primer.

I. The TCPA Applies to Debt Collection

After the TCPA Legislation was adopted, the Federal Communications Commission (FCC), the federal body tasked with enforcing and interpreting the TCPA, issued a formal Order, entitled “Notice of Proposed Rule Making” on April 17, 1992 (hereinafter, the 1992 TCPA Order).  This Order initially and originally interpreted the TCPA and the implementing Regulations related thereto. 1 In the 1992 TCPA Order, the FCC wrote: “The overall intent of Section 227 is to protect consumers from unrestricted telemarketing . . .”  (1992 TCPA Order at ¶ 19, p. *3.)  But, the 1992 TCPA Order also specifically recognized that some businesses, such as debt collectors, used various types of telephone dialers, including “automated” and/or "predictive" telephone equipment that could fall within the TCPA.  Nonetheless, the FCC commented that, to the extent the practice of using automated equipment complied with other State or Federal debt collection laws (such as, presumptively, the FDCPA), this "non-telemarketing use of auto dialers [was] not intended to be prohibited by the TCPA." (1992 TCPA Order, ¶ 15, emphasis added; bracketed language added.)

Indeed, the 1992 TCPA Order carefully distinguished the telemarketing conduct sought to be regulated by the TCPA from the “commercial” conduct of debt collectors:

[I]n all debt collection circumstances, a prior or existing business relationship took place between the caller and the called party or the calling party is acting in an agency capacity for the creditor. . . [A] debt collection call that otherwise complies with all applicable collection statutes, is a commercial call that does not adversely affect the privacy concerns the TCPA seeks to protect.  (1992 TCPA Order at ¶ 16.)

Again and again, the FCC in later orders continued to recognize that debt collection calls were viewed differently from telemarketing communications for the very reason that (1) collection calls “do not transmit an unsolicited advertisement,” and (2) because “debt collection calls are not directed to randomly or sequentially generated telephone numbers, but instead are directed to the specifically programmed contact numbers for debtors.”  (In the Matter of Rules & Regulations Implementing The Telephone Consumer Protection Act of 2008, CG Docket No. 02-278, FCC 07-232 (1/4/08) ¶¶ 9-12 (hereinafter, 2008 TCPA Order). 2 Moreover, the FCC has flatly ruled that “calls solely for the purpose of debt collection are not telephone solicitations and do not constitute telemarketing.”  Id., at ¶ 11.

In short, the Legislative history of the TCPA discussed above, the FCC's historical interpretations of the TCPA, as well as its own implementing regulations which interpret the TCPA, 3 all demonstrate that the TCPA was aimed at curbing unsolicited telemarketing communications made by the use of so-called “automatic telephone dialing systems” directed to private residential homes, under circumstances where the communications invade the recipient’s privacy and lead the recipient to incur costs.  But the TCPA was not designed to deter (1) legitimate (non-telemarketing) commercial calls, (2) calls to individuals with whom the caller, directly or indirectly, possessed an established business relationship, and/or (3) calls made with the consent of the recipient. 4

II. THE PROVISIONS OF THE TCPA RELEVANT TO DEBT COLLECTORS AND CALLING

As most relevant to collectors calling cell phones, the TCPA, at 47 U.S.C. § 227(b), provides:

(b)  Restrictions on use of automated telephone equipment
       (1) Prohibitions
It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States
             (A) To make any call (other than a call made with the prior express consent of the party called) using any automatic telephone dialing system or an artificial or pre-recorded voice
(i)  to any emergency telephone line. . .
                   (ii)  to the telephone line. . .of a hospital …
                   (iii)  to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call
               (B)  to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the party, unless the call. . .is exempted by rule or order by the Commission. . .(Emphasis added.)

The plain language of 47 USC § 227(b)(1)(A) makes clear a violation of the TCPA occurs when an autodialed call is made to a cell (wireless) phone without the prior express consent of the called party.  (2008 TCPA Order, ¶ 9; see also 47 C.F.R. 64.1200.) In short, the elements that must be established to prove a prima facie violation of the cell phone provisions of the TCPA are:

(1) A call to a cell (wireless) phone by either:
       (a) using an “automatic telephone dialing system,” and/or
        (b) leaving an artificial or pre-recorded message.
(2) Where the call is made without the prior express consent of the recipient, and
(3) Where the recipient is charged for the call.

D. WHAT IS AN AUTOMATIC TELEPHONE DIALING SYSTEM (“ATDS”)?
An essential requirement of a TCPA claim is that the phone call be sent to a cell phone by use of auto dialing technology which either (1) utilizes a so-called “random or sequential number generator” or (2) automatically leaves a prerecorded, as opposed to a live, message.  These restrictions, arise from the Congressional finding that “automated or pre-recorded telephone calls were a greater nuisance and invasion of privacy than live solicitation calls.”  2008 TCPA Order, at ¶ 17

Consequently, the heart of the TCPA’s restrictions focus on the regulation of calls made by the use of a so-called “automatic telephone dialing system” (“ATDS”).  TCPA, 47 U.S.C. § 227(a)(1).

1. What Constitutes An ATDS Under Federal Law?

The term “automatic telephone dialing system” (“ATDS”), as defined under the TCPA, is a highly specific term of art.  The TCPA defines an ATDS as “equipment which has the capacity” (a) to “store or produce telephone numbers to be called, using a random or sequential number generator” and (b) to “dial such numbers.”  TCPA, 47 U.S.C. §§ 227(a)(1)(A) and (B).

The mere fact that a dialer automatically pulls a number out of a database and calls the phone number, should not be considered as having been made by an automatic telephone dialing system.  (In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Notice of Proposed Rulemaking and Memorandum Opinion and Order, 17 FCC rcd. 17459, 17465 N. 96 (Sept. 18, 2002)); but compare 2008 TCPA Order, ¶¶ 12-14.)

The ATDS provision of the TCPA was designed to address the type of telephone solicitation that Congress found to be especially abusive, namely automated calling devices which are able to “generate” millions of telephone numbers, and which are then automatically dialed without any human control.  When dialed sequentially, this technology has the capability to tie up all of the lines assigned to a particular business or individual -- for example, 283-8820, 283-8821, 283-8822, and so forth, (because often business or individuals have multiple phone numbers that vary only by one or two sequential digits). 

In the Appendix to the Senate Hearings on the TCPA is a document entitled “Why the Legislation Is So Important.”  See S. Hrg. 102-918, at 68 (Oct. 10, 1991).  Specific problems identified relate to automatic dialing systems which generate and dial numbers in sequence, thereby tying up all the lines and preventing any outgoing calls.  Id.  In the “Background and Need” Section of a Congressional Report accompanying the TCPA House bill, the history noted a ban on automatic telephone dialing systems was necessary because such systems:

are programmed to dial sequential blocks of telephone numbers, including those of emergency public organizations and unlisted subscribers. Since an [automatic telephone dialing system] can “seize” a recipient’s telephone line once a phone connection is made and may not release the line when the recipient hangs up, they can result in an intrusive and potentially dangerous use of telecommunication equipment.

H.R. REP. No. 101-633, at 3 (1990); see also Telemarketing/Privacy Issues: Hearing Before the Subcom. On Telecomm. And Finance, 102d Cong. 2 (1991) (Statement of Rep. Markey, Chairman).

What constitutes an ATDS subject to regulation under the TCPA has spawned considerate debate.  The FCC itself has not helped to clarify the issue by asserting that virtually any automated dialing device qualifies – ignoring the requirement in the TCPA itself that defines an ATDS be reference to “a random or sequential number generator.”  47 USC § 227(a)(1).  Clearly despite the FCC’s statements to the contrary, not every phone system with an automated dialing capability qualifies as an ATDS subject to the TCPA.

Although interpretive case law is sparse, one federal court sitting in California has clearly held that not every call sent through the use of automated calling equipment, or a predictive dialer, qualifies as an “ATDS” under the TCPA.  Instead the court ruled that only the subset of calls automatically dialed by the use of “a random or sequential number generator” was covered by the TCPA.  Satterfield v. Simon & Schuster (N.D. Cal. 2007) 2007 WL 1839807 at *5-6.  Significantly, the District Court rejected the FCC’s own interpretation that every predictive dialer qualified as an ATDS.  It concluded that the FCC’s broad interpretation was not entitled to deference as it was manifestly at odds with the definition of an ATDS contained inside the statute. 

The federal judge instead ruled that only equipment (whether or not automated or predictive) that contains “a random or sequential number generator” qualifies as an ATDS subject to the TCPA requirements.  Id.  Because most phone systems used by collectors do not use such number generating technology (even if they contain predictive dialers), they are not covered by the TCPA.  The Satterfield decision has been appealed, and an appellate decision is currently pending.

1. In 1992, the FCC enacted its original implementing regulations pursuant to an explicit grant of authority from Congress, as set forth in 47 USC § 227(b)(2) (“The commission shall prescribe regulations to implement the requirements of this subject.”) The FCC’s Regulations construing the TCPA are set forth at 47 CFR § 64.1200, et seq. Since 1992, the FCC has periodically issued newer interpretive regulations and orders. The last interpretive order was promulgated on January 4, 2008.
Return To Text

2. See, e.g., 2008 TCPA Order, at footnotes 17 and 18; 1995 TCPA Reconsideration Order, ¶ 17 (“We have specifically noted that ‘prerecorded debt collection calls [are] exempt from the prohibitions on [prerecorded] calls to residences as . . .commercial calls. . .which do not transmit an unsolicited advertisement.”). See also 1992 TCPA Order, ¶ 39 (“With respect to concerns regarding compliance with both the [Fair Debt Collection Practices Act] and our rules in prerecorded message calls, we emphasize that the identification requirements will not apply to debt collection calls because such calls are not autodialer calls (i.e., dialed using a random or sequential number generator) and hence are not subject to the identification requirements for prerecorded messages in 64.1200(e)(4) of our rules”). Return To Text

3. See, e.g., 47CFR § 64.1200(a)(2)(iii) (there is no liability under the TCPA for most calls made for a commercial or business purpose which do not include an unsolicited advertisement or solicitation).  See also 47 CFR § 64.1200(a)(2)(ii)Return To Text

4. The TCPA also established what is commonly known as the national “do not call list” whereby residential telephone subscribers may “opt out” of receiving unsolicited telemarketing calls at their home.  See 47 CFR § 64.1200(e)(2). Return To Text

Tennessee Debt Collection Defense

The Fair Debt Collection Practices Act (FDCPA) is a federal law that governs what actions a debt collector can take while trying to collect a debt. Collection attorneys are also governed by the FDCPA. As such, collection attorneys should take note of several recent rulings in 2005 from federal courts around the country regarding the FDCPA.

Oral Disputes of Debts Count, Too
The Ninth Circuit has held that debt collectors cannot tell consumers that they will assume a debt is valid unless they receive written notification of a dispute. A consumer can dispute the validity of a debt in writing or orally. Although there are some sections of the FDCPA that require written notice, the Court declined to impose the written notice provision on other sections. The Court reasoned that it would not make sense to read a written notice requirement into §1692g(a)(3) because other sections of the FDCPA require debt collectors to take note of consumers' oral disputes.

The Ninth Circuit followed Supreme Court rulings that have held that courts should not insert language into a statute unless the failure to do so would result in absurd or unreasonable results.

Collectors Must Notify Credit Bureaus of Orally-Disputed Debts
The FDCPA requires a collector to notify the credit bureaus that a debt is disputed if the collector has reason to know the debt is disputed and reports about the debt on a consumer's credit report. This requirement applies even if the consumer disputes the debt orally.

This requirement has been extended by recent court rulings. First, the debt collector does not have the authority to decide unilaterally if a consumer's dispute has any merit. As long as a consumer has disputed the debt, the collector is required to inform the credit bureaus of the dispute.

Second, a simple inquiry by a consumer about the validity of additional charges is an oral dispute of the debt and requires reporting to the credit bureaus that the debt is disputed.

Lastly, a collector has to report that the debt is disputed in a timely manner. Summary judgment was denied for a collector in a recent case in Pennsylvania where the collector took seven months to report that the debt was disputed. The court believed that a jury could find that seven months was an unreasonable delay and a violation of the FDCPA.

Affidavits for Garnishments are Covered by the FDCPA
In an important ruling,

Collection lawyers will now have to be more careful about what they and their clients say in these affidavits. In the Sixth Circuit case, the collector's attorney filed an affidavit stating that he had a reasonable basis to believe that the debtor's property was nonexempt and garnishable. The debtor's property, however, was Social Security benefits, which are exempt.

The court also stated that the FDCPA violation was an independent federal claim from the state court action and therefore the Supreme Court's Rooker-Feldman doctrine, which bars federal courts from reviewing state court decisions, did not apply.

Repeated or Continuous Telephone Calls Can Mean Trouble
Recent court decisions reaffirm that repeated or continuous calls to a consumer by a debt collector can bring about FDCPA violations.

In one case, six voice-mail messages left on a consumer's home answering machine over a 10-day period was sufficient to defeat summary judgment and could be viewed as harassment, false threats or unfair practices.

In another case, the debt collector was denied summary judgment where it called a consumer multiple times without leaving any messages. The court determined that the possible FDCPA violation turned on the volume of calls made and on the pattern of the calls.

In yet another case, a debt collector was found to have violated the FDCPA by repeatedly calling a consumer after the consumer had hung up the telephone.

The Financial Pain of FDCPA Violations
Consumers have the right to file a lawsuit against any debt collector or collection attorney who violates the FDCPA. The consumer can recover actual damages, statutory damages of up to $1,000 and attorney's fees and costs.

Some of the secondary costs to debt collectors and collection attorneys include decreased collection rates, increased insurance rates and the costs of defending a lawsuit, just to name a few. As the recent rulings point out, avoiding FDCPA violations is the best road to travel.

Thursday, June 12, 2014

Tennessee Debt Buyer’s Must Have A License

IWhite v. Sherman Financial Group, LLC, No. 3:12-cv-404, 2013 WL 5936679, *1 (E.D. Tenn. Nov. 4, 2013), the U.S. District Court for the Eastern District of Tennessee recently denied the plaintiff’s partial motion for summary judgment and granted summary judgment in favor of the defendants on all but one the plaintiff’s Fair Debt Collection Practices Act (“FDCPA”) claims and, in the process, rendered a significant decision regarding the interplay between the FDCPA and filing state collection actions in Tennessee.

In White, the plaintiff alleged the defendants, Sherman Financial Group, LLC (“Sherman”), LVNV Funding, LLC (“LVNV”), Resurgent Capital Services, L.P. (“Resurgent”), Tobie Griffin (“Griffin”), and Buffaloe & Associates, PLC (“Buffaloe”), of violating a number of FDCPA provisions when Buffaloe filed a civil warrant and sworn affidavit on behalf of LVNV. The civil warrant sought to collect the principal amount due on the debt “plus pre and post judgment interest accruing at the statutory rate of 10% and court costs.” Griffin signed the sworn affidavit, which stated the principal amount due “plus any additional accrued interest.” The plaintiff denied the existence of the debt and the state collection suit was eventually dismissed. The plaintiff then brought the federal suit asserting that the defendants violated the FDCPA by filing the state collection action and, thus, allegedly making false, misleading representations, taking an action which could not legally be taken by failing to obtain a proper license, failing to make requisite disclosures in the civil warrant and sworn affidavit, and filing the suit in an improper venue. The specific FDCPA provisions the plaintiff alleged were violated were as follows: 1692e(2)(A), 1692e(2)(B), 1692e(8), 1692e(10), 1692e, 1692e(5), 1692f, 1692f(1), 1692e(11), 1692g(1)(3)-(5), and g(1)(3)-(5), and 1692i(a)(2). At the outset of the opinion, the Court granted summary judgment in favor of Sherman as to all of the plaintiff’s claims because the plaintiff did not discuss Sherman’s liability and only briefly even mentioned Sherman. The court then addressed the plaintiff’s claims against the remaining defendants.

First, the plaintiff claimed that the defendants filed the collection suit without possessing competent evidence to establish the debt was owed to LVNV and while knowing that they did not intend to ever prosecute the case or validate the evidence. The court found that the plaintiff provided no evidence of any intent not to pursue the action or of a pattern of practice of doing so. Furthermore, the court found that, despite taking issue with the affiant’s level of personal knowledge, the plaintiff provided no evidence to counter the information in the affidavit. The court also found that “the mere fact defendants dismissed their collection action against plaintiff is insufficient to create a genuine issue of material fact.” Plaintiff also argued that the defendants violated a number of FDCPA provisions because the amount sought in the civil warrant was the principal plus pre and post judgment interest and court costs, while the affidavit only stated “[the principal amount] plus any additional accrued interest.” The court found this argument “meritless” because “the affidavit clearly states the amount due, including the possibility of interest, and was used to validate the debt on which the civil warrant is seeking to collect.” Furthermore, the court stated that “[t]he failure to include the court cost amount would not be misleading, nor would it be an attempt to collect on an amount not authorized by law, given that court costs are authorized by statute.” Therefore, the court found the statements were not inconsistent with each other and would not deceive the least sophisticated consumer. The court granted summary judgment for the defendants as to the 1692e, 1692e(2)(A), 1692e(2)(B), 1692e(5), 1692e(8), 1692e(10), 1692f, and 1692f(1) claims.

Second, the plaintiff claimed LVNV’s failure to obtain a license to be a debt collector under Tennessee law was a violation of the FDCPA. LVNV claimed it was exempt from Tenn. Code Ann. § 62-20-105 licensing requirement because it hired the law firm to carry out its collection efforts. The court recognized that Smith v. LVNV Funding, LLC, 809 F. Supp. 2d 1045, 1049 (E.D. Tenn. 2012), held that the failure to obtain the necessary licensing could give rise to a FDCPA violation for threatening and or taking legal action which it was not authorized to do. However, in this case, the court held that LVNV was not required to obtain a collection service license from the Tennessee Collection Service Board (“TCSB”). The court fully relied on a “clarification statement” issued by the TCSB, which states 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.’

The Court noted that the TCSB had reaffirmed the statement as recently as May 2012. Thus, because the only evidence on the record showed that the law firm conducted all collection activity related to the plaintiff’s account, then LVNV would not be a collection service according to the clarification statement and did not need a license. The court also recognized its own contrary finding in Lilly v. RAB Performance Recoveries, LLC, No. 2:12-CV-364, 2013 WL 38344008 (E.D. Tenn. Aug. 2013), this summer and stated simply that “the Court was not made aware of the existence or import of the Clarification Statement”. The court found LVNV was entitled to summary judgment on 1692e(5), 1692f, and 1692f(1) claims.

Third, the plaintiff argued that the civil warrant and affidavit were initial communications and that the defendants violated 1692e(11) and 1692g by failing to include the required disclosures. The court first granted summary judgment for the defendants on the plaintiff’s 1692g claim. The defendants submitted an affidavit testifying that the law firm had sent a letter prior to the filing of the civil warrant and affidavit. Despite having no copy of the letter, the court found that the affidavit testifying that the records indicated a letter was sent and that the same disclosures are included in all correspondence was sufficient to prove the civil warrant and affidavit were not the initial communications because the plaintiff offered no evidence to dispute that fact. Next, the court looked at the plaintiff’s 1692e(11) claims and found that both the civil warrant and the sworn affidavit are formal pleadings. The court even went on to analyze a contrary finding in Collins v. Portfolio Recovery Associates, LLC, No. 2:12-CV-138 (E.D. Tenn. June 7, 2013), and it picked apart its analysis there and found Collins is both non-binding and not persuasive. The court granted summary judgment in favor of defendants for the 1692e(11) and 1692g claims.

Fourth, the plaintiff claimed LVNV was responsible for the acts and omissions of the law firm it hired. The court found that the nature of the attorney-client relationship gives the client the power to control its agent. Thus, the court found simply that “LVNV may be held liable for any of [the law firm's] FDCPA violations, making summary judgment improper.”

Finally, the court ruled on the plaintiff’s Motion for Partial Summary Judgment. The plaintiff moved for summary judgment on the licensing, disclosure, and wrong venue claims. The court had already dealt with the licensing and disclosures issues, finding in favor of the defendants, and only had the venue issue to address. Section 1692i(a)(2) of the FDCPA requires a debt collector to bring an action in the judicial district where the consumer signed the contract or where the debtor resides. The plaintiff argued that the civil warrant was issued in Knox County, but listed the residence as Sevier County. The defendants acknowledged that the civil warrant may have been filed in the wrong county, but that they had a good faith belief as to the plaintiff’s address based on credit reports. The court made no determination as to whether the defendants could carry the burden of proving the bona fide defense at trial, but found that they had created a genuine issue of material fact. The court denied plaintiff’s motion in its entirety.

In conclusion, the only one of the plaintiff’s claims that survived was the 1692i(a)(2) claim.