Court of Appeals of Missouri, Western District, Third Division
from the Circuit Court of Jackson County, Missouri The
Honorable James F. Kanatzar, Judge
Before: Alok Ahuja, Presiding Judge, Thomas H. Newton, Judge
and Cynthia L. Martin, Judge
CYNTHIA L. MARTIN, JUDGE
Mavaega ("Mavaega") appeals from the trial
court's entry of summary judgment in favor of LVNV
Funding, LLC ("LVNV Funding") and from the trial
court's denial of her motion for class certification.
Mavaega asserts that the trial court erred in three respects:
(1) in denying her motion for summary judgment and in
granting LVNV Funding's motion for summary judgment on
Mavaega's claim asserting LVNV Funding violated the Fair
Debt Collection Practices Act
("FDCPA"); (2) in denying her motion for class
certification; and (3) in granting LVNV Funding's motion
for summary judgment on its claim against Mavaega to collect
a debt. We affirm.
and Procedural Background
March 2012, Mavaega entered into a credit agreement with
Credit One Bank, N.A. ("Credit One"). Credit One
extended credit pursuant to the terms and conditions of the
credit agreement. Mavaega, in exchange, agreed to pay Credit
One for all amounts due resulting from the authorized use of
the credit, including any interest and other charges due
pursuant to the terms and conditions of the credit agreement.
The terms and conditions of the credit agreement provided
that interest would accrue at the rate of 23.9 percent.
One issued Mavaega monthly periodic statements. The May 4,
2012 periodic statement indicated that Mavaega was required
to make a minimum payment of $51.00 by May 28, 2012. Mavaega
made no payments toward the account following the May 4, 2012
periodic statement, and Credit One recorded the first day of
default as June 4, 2012. The December 4, 2012 periodic
statement indicated that the account had a balance of $826.83
and warned that Mavaega's "account is scheduled to
be charged off." Credit One charged off the account on
December 5, 2012.
January 2013, LVNV Funding gained ownership of the account
and has owned the account since that time. From March 2013
to June 2014, LVNV Funding charged interest on the balance
due on the account at a rate of 20 percent per annum.
However, LVNV Funding then deducted the interest it had
accrued during that time frame from the account balance.
Thereafter, LVNV Funding began charging interest on the
balance due on the account at the rate of 9 percent per
annum. Pursuant to section 408.020,  creditors are allowed
"to receive interest at the rate of nine percent per
annum, when no other rate is agreed upon."
October 21, 2014, LVNV Funding filed suit against Mavaega to
collect $826.83, the amount outstanding on the credit
account, plus interest from and after July 21, 2014. LVNV
Funding did not seek to recover interest from the date of its
acquisition of the credit account to July 21, 2014. Mavaega
filed an answer and counterclaim on April 8, 2015.
Mavaega's counterclaim alleged that LVNV Funding violated
the FDCPA in three respects: (1) LVNV Funding assessed an
interest rate not allowed by law or agreement; (2) LVNV
Funding falsely stated the character, amount, or legal status
of the debt; and (3) LVNV Funding communicated credit
information which it knew or should have known to be false.
Underlying Mavaega's counterclaim was her assertion that
once Credit One charged off her account, no contractual
interest could be assessed as a matter of law, and that LVNV
Funding had nonetheless charged interest on the account at a
rate in excess of Missouri's statutory rate.
Mavaega's counterclaim sought an order certifying her
suit as a class action, with the proposed class to include
"[a]ll Missouri persons whose charged-off accounts were
purchased by LVNV Funding LLC wherein LVNV reported a growing
balance to a credit reporting agency with interest rate over
9% within one year of filing this class counterclaim."
Mavaega filed a motion for class certification detailing why
class certification was appropriate. Following briefing by
the parties, the trial court denied Mavaega's motion
seeking class certification because "Mavaega's
proposed class definition is overly broad and, in its current
state, does not allow for class certification."
Funding filed a motion for summary judgment on September 9,
2016. LVNV Funding argued that summary judgment in its favor
and against Mavaega was appropriate on its affirmative claim
to collect the debt owed by Mavaega, and on Mavaega's
FDCPA counterclaim. With respect to the collection claim,
LVNV Funding's motion for summary judgment argued that
the uncontroverted facts established that Mavaega incurred
the debt; that the debt was subject to a 23.9 percent
contractual interest rate; that Mavaega failed to make
payments when due; and that LVNV Funding is the current owner
of the debt. LVNV Funding thus asserted that it was entitled
to judgment in the sum of $826.83, plus statutory interest as
pleaded in its petition, as a matter of law. LVNV
Funding's motion for summary judgment also asserted that
Mavaega's FDCPA counterclaim failed as a matter of law
for two reasons. First, LVNV Funding argued that Credit
One's failure to mail periodic statements to Mavaega did
not prohibit the accrual of interest on the debt and that
Credit One did not otherwise waive its right to collect
interest on the debt. Second, LVNV Funding contended that
Mavaega's FDCPA counterclaim relies entirely on LVNV
Funding's alleged failure to comply with the Truth in
Lending Act ("TILA") and its implementing regulation,
Regulation Z,  neither of which apply to LVNV Funding
because LVNV Funding is not a "creditor" as defined
filed a response to LVNV Funding's motion for summary
judgment. With respect to LVNV Funding's collection
claim, Mavaega argued that LVNV Funding is not entitled to
summary judgment because it has not established a chain of
title to the debt in question and because LVNV Funding sought
damages in an amount that is unlawful. With respect to
Mavaega's FDCPA counterclaim, Mavaega argued that LVNV
Funding is not entitled to summary judgment because the
uncontroverted facts established that LVNV Funding engaged in
two violations of the FDCPA: (1) LVNV Funding attempted to
collect a debt by threatening the accrual of interest at a
rate greater than the statutory rate; and (2) LVNV Funding
reported a balance on Mavaega's account to national
credit bureaus that grew at a rate greater than that allowed
by law or agreement. Both alleged violations depended on the
truth of Mavaega's assertion that contractual interest of
23.9 percent could no longer be charged by Credit One or its
assignee once Credit One charged off Mavaega's credit
account in December 2012.
filed her own motion for summary judgment on her FDCPA
counterclaim. Mavaega's motion asserted that she was
entitled to summary judgment because: (1) when LVNV Funding
took possession of the account, it had no greater rights than
that of Credit One; (2) Credit One's rights to collect
against Mavaega were limited by TILA and Regulation Z, which
limited the collection of interest to 9 percent (the
statutory rate) once Credit One charged off Mavaega's
account; and (3) LVNV Funding charged Mavaega in excess of 9
percent when it had no contractual or statutory right to do
so because Mavaega's account was previously charged-off
and periodic statements had ceased.
extensive briefing by the parties, the trial court denied
Mavaega's motion for summary judgment on her FDCPA
counterclaim, and granted LVNV Funding's motion for
summary judgment both on its affirmative collection claim and
in defense of the FDCPA counterclaim. The trial court
explained its decision:
The original creditor charged off its account with Linda
Mavaega on 5 December 2012 when she had an outstanding
balance of $826.83. LVNV Funding LLC was assigned Linda
Mavaega's account on 31 January 2013. LVNV Funding LLC
charged 20% interest on the account from March 2013 to June
2014, deducted same from the account for that time period,
and beginning July 2014 charged 9% interest on the account.
Once the original creditor charged off the account on 5
December 2012, the original creditor and any subsequent
assignees were precluded from charging interest at the
contractual rate. Pursuant to Section 408.020, creditors are
allowed to receive interest at the rate of 9% per annum.
(Citation omitted.) The trial court thus found that LVNV
Funding was limited to the recovery of interest at the
statutory rate, and effectively found that the earlier
assessment of a higher rate of interest did not violate the
FDCPA because of the reversal of that charge.
trial court's decision to grant summary judgment is one
based on the pleadings, the record submitted, and the law.
Goerlitz v. City of Maryville, 333 S.W.3d 450, 452
(Mo. banc 2011). Thus, we need not defer to the trial
court's determination. Id. Instead, we review
the grant of summary judgment de novo, applying the
same standard as the trial court in determining whether
summary judgment was proper. Id.
Summary judgment is only proper if the moving party
establishes that there is no genuine issue as to the material
facts and that the movant is entitled to judgment as a matter
of law. The facts contained in affidavits or otherwise in
support of a party's motion are accepted as true unless
contradicted by the non-moving party's response to the
summary judgment motion. Only genuine disputes as to material
facts preclude summary judgment. A material fact in the
context of summary judgment is one from which the right to
Id. at 452-53 (internal quotation marks and
moving party's right to "judgment as a matter of law
differs significantly depending upon whether the movant is a
'claimant' or a 'defending party.'"
ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply
Corp., 854 S.W.2d 371, 381 (Mo. banc 1993). If the
moving party is a claimant, then the claimant "must
establish that there is no genuine dispute as to those
material facts upon which the claimant would have had the
burden of persuasion at trial." Id. Thus, LVNV
Funding had the burden in its motion for summary judgment on
its collection claim against Mavaega to establish that there
was no dispute as to the material facts necessary to
establish the claim. Similarly, Mavaega had the burden in her
motion for summary judgment on the FDCPA counterclaim against
LVNV Funding to establish that there was no dispute as to the
material facts necessary to establish the counterclaim.
the moving party is a defending party, the right to judgment
as a matter of law is determined differently. Id.
[A] defending party may establish a right to judgment by
showing (1) facts that negate any one of the
claimant's elements facts, (2) that the non-movant, after
an adequate period of discovery, has not been able to
produce, and will not be able to produce, evidence sufficient
to allow the trier of fact to find the existence of any
one of the claimant's elements, or (3) that there is
no genuine dispute as to the existence of each of
the facts necessary to support the movant's
properly-pleaded affirmative defense.
Id. LVNV Funding, as the party defending
Mavaega's FDCPA counterclaim, had the burden on its
motion for summary judgment to establish one of the
following: (1) facts that negate any one of the elements of
an FDCPA claim; (2) that Mavaega, after an adequate period of
discovery, has not be able to produce and will not be able to
produce evidence to support one of the elements of an FDCPA
claim; or (3) that there are no genuine issues of material
fact as to the existence of each of the elements necessary
for one of LVNV's affirmative defenses.
raises three points on appeal. We discuss the ...