Another Malicious-Prosecution-Like FDCPA Claim Dismissed

Frankel Rubin received a favorable decision in Colbert v. LVNV Funding, LLC, No. 4:15CV353 HEA, 2016 WL 245406 (E.D. Mo. Jan. 21, 2016) by the Honorable Henry Edward Autrey of the Eastern District of Missouri.

The plaintiff alleged, among other claims, that LVNV violated the Fair Debt Collection Practices Act (“FDCPA”), because the defendant was obligated to have proof of standing as a prerequisite to filing suit, but did not; and the affidavit that LVNV attached to its collection suit contained multiple false and misleading statements as they were alleged to be based on the affiant’s personal knowledge when they were really based on business records provided by the original creditor, and the affiant’s attestations were false as the affiant had not reviewed the records that demonstrated the defendant had standing to file the collection suit. LVNV moved to dismiss for failure to state a claim, and the district court granted the motion.

With respect to the plaintiff’s claim that the defendant never intended to prove its collection suit, the district court concluded that the record did not support the conclusion that LVNV never intended to pursue the underlying collection suit. The record merely suggested that when LVNV filed the state court suit, it did not have the evidence necessary to succeed at trial—LVNV participated in discovery and made the decision to dismiss the action only after that discovery was conducted. With respect to the affidavit, the affidavit at issue showed that the plaintiff’s allegations lacked merit. The affidavit clearly stated that it was written by an authorized representative for LVNV, that she is authorized to execute the affidavit on behalf of LVNV, that she was the custodian of LVNV’s business records, and that the scope of her job responsibilities included the supervision or oversight of credit account records maintained by LVNV. The affidavit also contained the specific account number and the amount of the debt. The plaintiff had not explained why the statements in the affidavit are false or deceptive, and the affidavit was not false on its face. The plaintiff’s argument that the affidavit was false because no one other than an original lender employee could have personal knowledge of the debt was conclusory and the conclusion does not necessarily follow.

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