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Carter v. First National Collection Bureau, Inc.

United States District Court, S.D. Texas, Houston Division

November 16, 2017

MARJORIE CARTER, Plaintiff,
v.
FIRST NATIONAL COLLECTION BUREAU, INC., et al, Defendants.

          MEMORANDUM & ORDER

          KEITH P. ELLISON, UNITED STATES DISTRICT JUDGE.

         Plaintiff Marjorie Carter brings this putative class action against Defendants First National Collection Bureau, Inc., LVNV Funding, LLC, Resurgent Capital Services, L.P., and Alegis Group, LLC, (collectively, "Defendants"). Plaintiff alleges that she received a debt collection letter from Defendants that violated the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692, et seq. Plaintiffs Complaint sets out allegations ostensibly satisfying Fed.R.Civ.P. 23. See Compl. ¶¶ 52-59 (Doc. No. 1). However, no class has been certified to date.

         Ms. Carter passed away on March 28, 2016. (Doc. No. 37.) Pending before the Court is a Motion for Substitution of Plaintiff. (Doc. No. 38.)

         I. BACKGROUND

         In her Complaint, Ms. Carter alleged that on January 7, 2015, Defendants sent Ms. Carter a letter seeking to collect on a credit card debt. Compl. ¶¶ 28-30 (Doc. No. 1). The letter stated, in relevant part:

We would like to extend the following settlement offer:
A 90% discount payable in 4 payments of $138.92. Each payment within 30 days of the previous payment. We are not obligated to renew this offer. For your convenience you may pay via a check over the phone or credit card. You have our word that your account executive will treat you fairly and with respect.
Sincerely,
First National Collection Bureau, Inc.
This is an attempt to collect a debt. Any information obtained will be used for that purpose. This is a communication from a debt collector.

Id. Ex. A (Doc. No. 1-1).

         What the letter did not say was that the four-year statute of limitations on the debt had expired and that Defendants were thus time-barred from legally enforcing the debt.[1] Id. ¶¶ 32-36. Plaintiff alleges that by "extend[ing] ... [a] settlement offer" on a time-barred debt, without disclosing that the debt is time-barred, Defendants falsely suggested that they could file suit to enforce the debt. Id. Ex. A (emphasis added). To imply, in this manner, that a time-barred debt is legally enforceable is, Plaintiff claims, a deceptive and unfair practice in violation of § 1692e and§ 1692f of the FDCPA.

         On October 9, 2015, the Court granted an unopposed motion to stay this case pending ruling in Daugherty v. Convergent Outsourcing, Inc., et al., Case No. 15-20392 before the Fifth Circuit. (Doc. No. 23.) The Court ordered the stay lifted on March 6, 2017.[2]

         On July 21, 2017, the Court was informed that Ms. Carter passed away on March 28, 2016. (Doc. No. 37.) Then, on August 14, 2017, Kyonnie Hordge, moved to substitute Plaintiff. (Doc. No. 38.) Ms. Hordge is one of Ms. Carter's children and ...


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