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Casso v. Lvnv Funding, LLC

United States District Court, N.D. Illinois, Eastern Division

December 10, 2014

PAMELA CASSO, on behalf of plaintiff and class, Plaintiff,
v.
LVNV FUNDING, LLC; RESURGENT CAPITAL SERVICES LP; and ALEGIS GROUP LLC, Defendants.

MEMORANDUM OPINION AND ORDER

JOHN W. DARRAH, District Judge.

Plaintiff, Pamela Casso, brought this action against Defendants, LVNV Funding, LLC ("LVNV"), Resurgent Capital Services LP ("Resurgent"), and Alegis Group LLC ("Alegis") (collectively, "Defendants"), for alleged violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692(e). Casso now moves for class certification. For the reasons stated below, Casso's Motion is granted.

BACKGROUND

Casso is an individual who resides in Illinois. (Am. Compl. ¶ 5.) LVNV is a Las Vegas company that acquires allegedly defaulted debt and attempts to collect by filing lawsuits. ( Id. ¶¶ 6-7, 9.) Resurgent is a South Carolina limited partnership that operates a collections agency. (Id. ¶¶ 16-17.) Alegis is a South Carolina limited liability company and the sole general partner of Resurgent. ( Id. ¶ 21.) LVNV files more than five-thousand collection cases per year in Illinois courts. ( Id. ¶ 15.) All collection actions on debts purchased or otherwise acquired by LVNV are undertaken by Resurgent on LVNV's behalf. ( Id. ¶ 23.)

On November 14, 2011, LVNV filed a lawsuit in the Circuit Court of Cook County, Illinois, to collect a credit card debt allegedly owed by Casso. ( Id. ¶¶ 29-30.) Attached to the complaint was an affidavit sworn by Matthew Sowell (the "Sowell Affidavit"), then an employee of Resurgent. ( Id. ¶¶ 32-33.) Sowell's affidavit states, inter alia:

a. "[T]he information below is true and correct to the best of my information and belief based on [LVNV]'s business records."
b. "This information was regularly and contemporaneously maintained during the course of [LVNV]'s business."
c. "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 [LVNV] have been represented to include information provided by the original creditor or its successor in interest. Such information includes the debtor's name, social security number, account balance, the identity of the original creditor and the account number."
d. "Based upon the business records maintained on [Casso's account]... the Account is the result of the extension of credit to [Casso] by Citibank on or about 4/16/2007 (the "Date of Origination").
e. Upon assignment of the account, LVNV acquired "the right to collect the purchased balance owing of $2, 440.48 plus any additional accrued interest."

(Id. ¶ 36; Pl.'s Mot., Appendix B.) However, Casso alleges that Sowell did not review business records prior to signing the affidavit and, furthermore, that LVNV does not have business records indicating Casso's debt resulted from a loan on April 16, 2007, or that the amount owed is $2, 440.48. ( Id. ¶¶ 34, 37-38.)[1]

LVNV's agreement with Citibank (the "Agreement") includes several provisions limiting Citibank's representations and warranties. In Section 3.3 of the Agreement, Citibank represents only that "the current balance on the [account purchased by LVNV] is $100 or more." ( Id. ¶ 41.) The Agreement provides that LVNV is a "sophisticated investor" employing "its own independent expert evaluations of the nature, validity, collectability, enforceability and value of the Accounts" and that LVNV "is not acting in reliance on any representation by [Citibank], except those listed in Section 3.3." ( Id. ¶ 44.) The only remedy provided in the event that one of Citibank's limited warranties or representations is breached is that, for a period of 180 days, Citibank must reimburse the purchase price of the account, subtracting any amounts collected. ( Id. ¶ 42.) Casso argues that, because the purchase price of these accounts is quite small, any remedy would also be quite small, making such warranties virtually meaningless. (Pl.'s Reply at 4.) Casso further argues that these warranties are intentionally modest "because Citigroup has limited or flawed documentation of the credit card debts it owned." ( Id. )

LEGAL STANDARD

A plaintiff seeking class certification must show: (1) joinder of all potential class members is impracticable ("numerosity"); (2) there are common questions of law or fact ("commonality"); (3) the class representative's claims are typical of the rest of the class ("typicality"); and (4) the class representative adequately and fairly represents the class ("adequacy"). Fed.R.Civ.P. 23(a); see also Kress v. CCA of Tennessee, LLC, 694 F.3d 890, 892-93 (7th Cir. 2012). In addition, the suit "must also fit into one of the three categories described in subdivision (b) [of Federal Rule of Civil Procedure 23]." Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., ...


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