Dorrian v. LVNV Funding, LLC ( 2018 )

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SJC-12355
TARA DORRIAN1 vs. LVNV FUNDING, LLC
(and a consolidated case2).
Suffolk. January 5, 2018. - April 9, 2018.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
Kafker, JJ.
Debt. Collection Agency. Consumer Protection Act, Collection
of debt. Words, "Debt collector."
Civil actions commenced in the Superior Court Department on
August 22 and December 30, 2014.
After consolidation, the case was heard by Janet L.
Sanders, J., on motions for class certification and for summary
judgment.
The Supreme Judicial Court granted an application for
direct appellate review.
David Schultz (Andrew M. Schneiderman also present) for
LVNV Funding, LLC.
Kenneth D. Quat (Josef C. Culik also present) for Tara
Dorrian & another.
1 Individually and on behalf of all others similarly
situated.
2 Virginia Newton vs. LVNV Funding, LLC.
2
The following submitted briefs for amici curiae:
Nadine Cohen & Philip Weinberg for Greater Boston Legal
Services & others.
Merrily S. Gerrish, Special Assistant Attorney General, &
Heather L. Bennett for division of banks of the Office of
Consumer Affairs and Business Regulation.
Donald S. Maurice, Jr., & Brady J. Hermann for Receivables
Management Association International, Inc.
Daniel S. Blynn, Meredith L. Boylan, & Benjamin E.
Horowitz, of the District of Columbia, David L. Feinberg, Joseph
L. Demeo, & Lawrence S. Delaney for Cavalry SPV I, LLC.
KAFKER, J. The primary issue presented is the definition
of "debt collector" under G. L. c. 93, § 24, particularly its
application to the statute's licensing requirement. After being
sued for the failure to pay debts, the plaintiffs, Tara Dorrian
and Virginia Newton, each individually filed suit against the
defendant, LVNV Funding, LLC (LVNV), claiming unlicensed debt
collection. The plaintiffs also alleged violations of G. L.
c. 93A, asserted claims of unjust enrichment,3 and sought to
proceed against LVNV in a class action suit. A judge in the
Superior Court consolidated the cases and certified them as a
class action. On cross motions for summary judgment, the judge
concluded that LVNV violated G. L. c. 93, § 24A, because it
operated as a debt collector without a license and granted
summary judgment to the plaintiffs. On the claim that LVNV
violated G. L. c. 93A, the judge granted summary judgment to
3 The plaintiffs subsequently voluntarily dismissed the
unjust enrichment claims.
3
LVNV because it met the exemption from liability in G. L.
c. 93A, § 3, as the division of banks of the Office of Consumer
Affairs and Business Regulation (division) had permitted LVNV to
operate without a license.
On appeal, LVNV argues that (1) the judge erred in
certifying the class because neither plaintiff is a proper class
representative; (2) the judge's remedy was improper, and at most
the judgments should merely be voidable; and (3) the judge
should have deferred to the division's interpretation of the
statute concluding that LVNV did not require a license.
We conclude that LVNV is not a debt collector under G. L.
c. 93, § 24.4 The statute contains two separate definitions of
"debt collector," neither of which applies to LVNV, a "passive
debt buyer," which is a company that buys debt for investment
purposes and then hires licensed debt collectors or attorneys to
collect the debt on its behalf. The first definition covers
entities of which the "principal purpose" is the "collection of
a debt." We conclude that this definition does not apply to
LVNV because LVNV has no contact with consumers and the
Legislature did not intend for these entities to be treated as
debt collectors under G. L. c. 93, § 24. The second definition
4 Our conclusion that LVNV Funding, LLC (LVNV), is not a
debt collector for the purposes of G. L. c. 93, § 24, resolves
this matter. Consequently, we need not address the other issues
raised on appeal.
4
covers entities that "regularly collect[] or attempt[] to
collect, directly or indirectly, debts owed or due" to another.
This definition does not apply because LVNV deals only with its
own debts, not the debts of another. Because LVNV does not meet
either definition, it is not a debt collector under G. L. c. 93,
§ 24. We therefore vacate the judgment and remand the matter to
the Superior Court for further proceedings consistent with this
opinion.5
1. Background. a. Overview of G. L. c. 93, §§ 24-28. In
2003, the Legislature amended G. L. c. 93, §§ 24-28. See St.
2003, c. 130. These provisions, modeled after the Federal Fair
Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692p (FDCPA),
are often referred to as the Massachusetts Fair Debt Collection
Practices Act (MDCPA).6 Congress passed the FDCPA to combat
abusive debt collection practices. 15 U.S.C. § 1692. Although
legislative history of the MDCPA is scant, it appears to share
the same purpose as the FDCPA.
5 We acknowledge the amicus briefs submitted by Cavalry SPV
I, LLC; Greater Boston Legal Services, Rosie's Place, and Legal
Services Center of Harvard Law School; Receivables Management
Association International, Inc.; and the division of banks of
the Office of Consumer Affairs and Business Regulation.
6 This opinion refers to the provisions in G. L. c. 93,
§§ 24-28, as the Massachusetts Fair Debt Collection Practices
Act (MDCPA). We note that the bill that included these
provisions did not contain this official title and that other
names have been used, such as the "Debt Collection Law" and
"DCL".
5
The MDCPA also largely follows the FDCPA's language. The
term relevant to this case, "debt collector," is defined
substantively the same under both laws. Compare 15 U.S.C.
§ 1692a(6), with G. L. c. 93, § 24. Under the MDCPA, an entity
is a debt collector if (1) it is engaged in a "business the
principal purpose of which is the collection of debt," or (2) it
"regularly collects or attempts to collect, directly or
indirectly, a debt owed or due . . . another." G. L. c. 93,
§ 24.
b. Division of banks. The division is a State agency
responsible for financial regulation, including the regulation
of debt collection. See G. L. c. 93, § 24A (d). Through its
regulations, the division defines unlawful debt collection
activities. 209 Code Mass. Regs. §§ 18.13-18.21 (2013). As
part of its regulatory oversight responsibilities, it issues
licenses to debt collectors and advisory opinions on which
entities meet the two-part statutory definition of "debt
collector." See G. L. c. 30A, § 8. An entity that meets either
definition of "debt collector" must be licensed by the
commissioner of banks (commissioner) through the division. See
G. L. c. 93, § 24A. To acquire a license, the applicant must
establish to the commissioner's satisfaction that its "financial
responsibility, character, reputation, integrity and general
fitness . . . are such as to command the confidence of the
6
public and to warrant the belief that the business . . . will be
operated lawfully, honestly and fairly." G. L. c. 93,
§ 24B (a). The applications for licenses are processed and
reviewed by the division and must be renewed each year. See
G. L. c. 93, § 24B. There are potential civil and criminal
penalties for operating as a debt collector in Massachusetts
without a license. See G. L. c. 93, § 28.
Most relevant to this case, since 2006, the division has
consistently concluded that a passive debt buyer is not included
under the definition of "debt collector" in G. L. c. 93, § 24.
The division has defined "passive debt buyer" as a debt buyer
that engages only in the practice of purchasing delinquent
consumer debts for investment purposes without undertaking any
activities to directly collect on the debt. Advisory Opinion
No. O06060 (Oct. 13, 2006).
The division's position is that a debt buyer that purchases
debt in default but is not directly engaged in the collection of
these purchased debts is not required to obtain a debt collector
license provided that all collection activity performed on
behalf of such debt buyer is done by a properly licensed debt
collector in the Commonwealth or a licensed attorney collecting
7
a debt on behalf of a client.7 See Advisory Opinion No. O12012
(Nov. 1, 2012); Advisory Opinion No. O06060. A later advisory
opinion clarified that even a passive debt buyer that was the
named plaintiff in lawsuits did not require a license. Advisory
Opinion No. O13020 (Mar. 4, 2014). In 2012, LVNV contacted the
division to inquire whether a license was necessary for a
company that "does not have employees or interact with consumers
directly" but instead "contracts with licensed third party debt
collectors and law firms to service accounts on its behalf."
The division, referencing its earlier advisory opinions,
responded that a license was not necessary.
The division, as amicus curiae, submitted a letter in this
case. In the letter, the division describes its long-standing
position that passive debt buyers do not require licensure as
debt collectors because they are merely investors in consumer
debts that hire another duly authorized entity to collect the
debts. This position is supported by the division's "practical
perspective that many of its examination practices would be
inapplicable to passive debt buyers" that do not interact
directly with consumers. Furthermore, the division stated that
until very recently, if a passive debt buyer applied for a
7 The attorney must be licensed to practice law in
Massachusetts and is therefore covered by the rules of
professional conduct.
8
license, the division "would not process such application" and
would notify the applicant that no license was required. The
division describes this practice as "essentially preventing
licensure" based on its interpretation of the statute.
c. Parties. LVNV is a Delaware limited liability company
that is registered to do business in Massachusetts. In its
annual filings with the Secretary of the Commonwealth, LVNV
describes the general character of its business as "purchaser of
consumer debt and loans." Over ninety-nine per cent of LVNV's
revenues come from collections on the debts that it owns. LVNV,
however, has no employees and does not engage in any contact
with the individuals whose debt it owns.
LVNV contracts with Resurgent Capital Services LP
(Resurgent) as the collection and servicing agent on the debts
owed to LVNV. Resurgent is licensed as a debt collector under
the MDCPA and has been licensed since 2000. LVNV authorizes
Resurgent, through a servicing agreement, to undertake all
collection and servicing responsibilities with regard to the
debts owned by LVNV. LVNV does not participate in any decisions
regarding collection activities, including determinations of
whether to initiate collection actions in court. Resurgent
retains sole discretion to hire law firms for legal collection
actions.
9
LVNV is nonetheless the named plaintiff in the lawsuits
that Resurgent files to collect on the debts owned by LVNV.
From 2010 to 2015, over 18,000 such lawsuits were brought
against Massachusetts residents seeking judgment on debts owned
by LVNV, as well as 3,500 proofs of claim in bankruptcy court
and 6,175 wage garnishment actions involving accounts owned by
LVNV. Furthermore, instructions sent to credit bureaus
referenced LVNV in more than 600,000 distinct debt accounts
involving residents of Massachusetts.
The plaintiff Virginia Newton opened a credit account in
June, 2007, with Jordan's Furniture through which HSBC Bank
Nevada, N.A. (HSBC), extended her a line of credit. Newton made
a purchase on the account and subsequently defaulted on the
debt. LVNV acquired the debt Newton owed to HSBC in 2009. In
February, 2014, Resurgent filed a lawsuit on LVNV's behalf
against Newton in the Framingham Division of the District Court
Department and obtained a judgment against Newton. Throughout
these legal proceedings, Newton only had contact with the law
firm that Resurgent hired to litigate the claims and never with
LVNV.
The plaintiff Tara Dorrian opened an account in December,
2007, also with Jordan's Furniture on an extension of credit
from HSBC. Dorrian defaulted on the debt, which LVNV acquired
from HSBC in 2010. Resurgent brought a small claims suit on
10
behalf of LVNV against Dorrian in the Quincy Division of the
District Court Department. A judgment was eventually entered in
Dorrian's favor on the collection claim. Dorrian only had
contact with Resurgent and the law firm that Resurgent hired to
litigate the claim and had no contact with LVNV.
Each plaintiff separately sued LVNV on behalf of themselves
and all others similarly situated, seeking declaratory and
injunctive relief and alleging that LVNV was operating as a debt
collector without a license in violation of G. L. c. 93, § 24A.
The plaintiffs also brought claims alleging unjust enrichment
and violations of G. L. c. 93A. As the motion judge recognized,
however,
"[t]hese lawsuits are notable in that the only conduct
alleged to be unlawful here is LVNV's failure to obtain a
license from the [division]. That is, these two cases do
not claim that LVNV -- or any entity acting on its behalf -
- has harassed any debtor or made any misrepresentations in
an attempt to collect on a debt. LVNV is not accused of
seeking to collect amounts it has no basis to believe that
it is owed or using information about a debtor in an
improper manner. Instead, the lawsuits focus exclusively
on the fact that LVNV is unlicensed."
As explained above, the judge certified a class action and
granted summary judgment to the plaintiffs on their claims that
LVNV violated the MDCPA by operating as a debt collector without
a license. LVNV appealed, and we granted applications for
direct appellate review filed by LVNV and the plaintiffs.
11
2. Discussion. a. Standard of review. "Our review of a
motion judge's decision on summary judgment is de novo, because
we examine the same record and decide the same questions of
law." Kiribati Seafood Co. v. Dechert, LLP, 478 Mass. 111, 116
(2017). "In a case like this one where both parties have moved
for summary judgment, the evidence is viewed in the light most
favorable to the party against whom judgment [has entered]"
(citation omitted). Boazova v. Safety Ins. Co., 462 Mass. 346,
350 (2012).
b. Interpreting G. L. c. 93, § 24. This case presents a
question of statutory interpretation, which we review de novo.
Water Dep't of Fairhaven v. Department of Envt'l Protection, 455
Mass. 740, 744 (2010). "Where the words are 'plain and
unambiguous' in their meaning, we view them as 'conclusive as to
legislative intent.'" Id., quoting Sterilite Corp. v.
Continental Cas. Co., 397 Mass. 837, 839 (1986). "Where the
meaning of a statute is not plain from its language, familiar
principles of statutory construction guide our interpretation.
We look to the intent of the Legislature 'ascertained from all
its words . . . considered in connection with the cause of [the
statute's] enactment, the mischief or imperfection to be
remedied and the main object to be accomplished, to the end that
the purpose of its framers may be effectuated.'" DiFiore v.
American Airlines, Inc., 454 Mass. 486, 490 (2009), quoting
12
Industrial Fin. Corp. v. State Tax Comm'n, 367 Mass. 360, 364
(1975). Additionally, "[w]e give substantial deference to a
reasonable interpretation of a statute by the administrative
agency charged with its administration enforcement." Commerce
Ins. Co. v. Commissioner of Ins., 447 Mass. 478, 481 (2006).
Applying these familiar principles, we conclude, as did the
division, that passive debt buyers -- that is, debt buyers
engaged "only in the practice of purchasing delinquent consumer
debts for investment purposes without undertaking any activities
to directly collect on the debt" -- do not fall under either
definition of "debt collector" in G. L. c. 93, § 24. See
Advisory Opinion No. O06060.
i. Whether LVNV is a debt collector under the first
definition. The first definition of "debt collector" in G. L.
c. 93, § 24, encompasses entities of which the "principal
purpose" is the "collection of a debt." As for this definition,
the plain language is instructive but not conclusive. LVNV's
business is to invest in debt, usually those in default, and
profit from the eventual collection of the debt. If the debt is
not collected, LVNV has no revenue. Nonetheless, the debt
collection itself is entirely undertaken by third parties.
Indeed, all aspects of the debt collection process are
contracted out to and conducted by Resurgent, a licensed debt
collector. Resurgent determines the appropriate course of
13
action for each account and whether to initiate legal action.8
In sum, the principal purpose of LVNV is not perfectly clear.
LVNV itself is a debt buyer, not a debt collector, but the
success of its business model is dependent on debt collection by
its licensed contractor.
Because the language of the statute is not "plain and
unambiguous" as it applies to passive debt buyers like LVNV, we
look to the legislative history to inform us on the
Legislature's intent. See Water Dep't of Fairhaven, 455 Mass.
at 744. There is, however, little legislative history on the
development of the MDCPA, which was enacted in 2003. See St.
2003, c. 130. The Office of Consumer Affairs and Business
Regulation originally proposed the bill, largely incorporating
the FDCPA's language. In particular, the proposal used the
FDCPA's definition of "debt collector." The Legislature enacted
the bill with only several minor edits to that definition.9
8 For example, without any input from LVNV, Resurgent
Capital Services LP hired the law firm Kream and Kream, P.C., to
litigate the suit against the plaintiff Tara Dorrian and the law
firm Lustig, Glaser & Wilson, P.C., to litigate the suit against
the plaintiff Virginia Newton.
9 The only relevant difference between the bill as it was
proposed by the Office of Consumer Affairs and Business
Regulation and the bill as it was enacted was that the proposed
language used the plural term "debts" as found in the definition
of "debt collector" in the Federal Fair Debt Collection
Practices Act (FDCPA), 15 U.S.C. § 1692a(6), whereas the enacted
statute was changed to use the singular term "debt." See G. L.
14
Beyond this, there is no information that bears on the
legislative intent. Thus, the legislative history is
essentially silent on the Legislature's intent with regard to
passive debt buyers like LVNV.
For further guidance we turn to the legislative history of
the FDCPA, which is relevant to our consideration because the
FDCPA was the model for the MDCPA. Although not directly
addressing the specific question of the status of passive debt
buyers, the legislative history of the FDCPA clearly and
expressly targets abusive debt collection practices, including
"obscene or profane language, threats of violence, telephone
calls at unreasonable hours, misrepresentation of a consumer's
legal rights, disclosing a consumer's personal affairs to
friends, neighbors, or an employer, obtaining information about
a consumer through false pretense, impersonating public
officials and attorneys, and simulating legal process." S. Rep.
No. 95-382, 95th Cong., 1st Sess., at 2 (1977). See Henson v.
Santander Consumer USA Inc., 137 S. Ct. 1718, 1720 (2017).10 To
clarify the definition of debt collector, the legislative
history also describes certain entities that are not intended to
c. 93, § 24. Additionally, the MDCPA has been amended several
times since 2003, but none of these is relevant to the issues in
this case.
10Our regulations reference the same or similar types of
harassment and abuse. See 209 Code Mass. Regs. § 18.15 (2013).
15
be included within the definition of "debt collector." See H.
Rep. No. 95-131, 95 Cong., 1st Sess., at 4 (1977). These
include banks, retailers, credit unions, and finance companies.
Id. Despite a careful consideration of what entities would be
covered by the definition and what entities would be excluded,
there is no evidence that Congress ever intended to include
within this definition debt buyers that own the debts but use a
third party to collect the debts and therefore have no contact
with the debtors. See generally S. Rep. No. 95-382; H. Rep. No.
95-131.
The Federal legislative history indicates that Congress's
focus was on the regulation of improper, high pressure,
deceptive debt collection practices, and did not consider
passive debt buyers. As LVNV has no employees and no contact
whatsoever with debtors, it seems to be outside of the core
concerns of Congress and, by implication, our Legislature when
it adopted this Federal model.11
Several Federal courts considering the plain language of
11
the first definition and the purposes of the FDCPA have
concluded that passive debt buyers are not included within that
definition. In McAdory vs. M.N.S & Assocs., LLC, U.S. Dist.
Ct., No. 3:17-cv-00777-HZ (D. Ore. Nov. 3, 2017), a Federal
District Court concluded that a passive debt buyer that has no
contact with consumers and uses a third party to collect the
debts is not a debt collector under the first definition of the
FDCPA. The court reasoned that entities "who have no
interactions with debtors and merely contract with third parties
to collect on the debts they have purchased simply do not have
16
We also consider the interpretation of the division, the
administrative agency tasked with enforcing the MDCPA. "[A]n
administrative agency's interpretation of a statute within its
charge is accorded weight and deference." Massachusetts Med.
Soc'y v. Commissioner of Ins., 402 Mass. 44, 62 (1988). The
court will approve an agency's statutory interpretation where it
is reasonable, particularly in cases involving "interpretation
of a complex statutory and regulatory framework." Attorney Gen.
v. Commissioner of Ins., 450 Mass. 311, 319 (2008).
The division's long-standing interpretation of G. L. c. 93,
§ 24, is that the term "debt collector" does not apply to
passive debt buyers like LVNV that purchase debts and use
licensed third parties to collect the debts. The division
adopted this interpretation because passive debt buyers are
investors in consumer debts that hire another duly authorized
entity (either a Massachusetts-licensed debt collector or a
Massachusetts attorney) to conduct the actual debt collection.
the principal purpose of collecting debts." Id. See Gold v.
Midland Credit Mgt., Inc., 82 F. Supp. 3d 1064, 1071 (N.D. Cal.
2015) (holding that, as matter of law, passive debt buyer, in
absence of "evidence showing a purpose to collect on those
debts," is not debt collector under "principal purpose"
definition in FDCPA); Kasalo v. Trident Asset Mgt., LLC, 53 F.
Supp. 3d 1072, 1079 (N.D. Ill. 2014) (holding that passive debt
buyer not debt collector under either definition in FDCPA).
These decisions further the conclusion that the intent behind
the FDCPA was to prohibit the harassing and abusive behaviors
that characterized the contact between debt collectors and
debtors.
17
See Advisory Opinion No. O13020 (stating that passive debt
buyers are not debt collectors under MDCPA); Advisory Opinion
No. O12012 (buyer of debt in default that is not directly
engaged in collection of those debts is not required to obtain
license so long as collection activity is performed by licensed
debt collector); Advisory Opinion No. O06060 (same). The
division has held this position since at least 2006. See
Advisory Opinion No. O06060. As the United States Court of
Appeals for the First Circuit has noted, this position is
reasonable in light of the conduct and practices targeted by the
MDCPA and the FDCPA. See Pilalas v. Cadle Co., 695 F.3d 12, 16
(1st Cir. 2012) (division's interpretation of G. L. c. 93, § 24,
appeared consistent with aim of statute).
We approve the division's reasonable and expert
interpretation in this complex regulatory environment. Attorney
Gen., 450 Mass. at 319. See Goldberg v. Board of Health of
Granby, 444 Mass. 627, 634 (2005) (agency is often required to
use its expertise to resolve issues not clearly addressed in
statutes). The division's interpretation helps resolve the
ambiguity in the plain language of the statute, drawing a line
between debt buyers and collectors based on whether they are
involved in any collection activities with consumers. The
division's interpretation also reflects and respects the core
concern of the statute, which is to prevent abusive debt
18
collection practices. We therefore conclude that the first
definition of "debt collector" in G. L. c. 93, § 24, does not
apply to passive debt buyers like LVNV that have no contact with
consumers and rely entirely on licensed third parties to collect
their debts.12
ii. Whether LVNV is a debt collector under the second
definition. The second definition of "debt collector" applies
to any entity "who regularly collects or attempts to collect,
directly or indirectly, a debt owed or due or asserted to be
12Although we conclude that passive debt buyers are not
debt collectors requiring a license under the MDCPA, we note
that these companies are nonetheless regulated by the Attorney
General as creditors and subject to many of the same
restrictions as debt collectors regulated under the MDCPA.
Compare 940 Code Mass. Regs. §§ 7.04-7.06 (2012) (regulating
creditor contact with consumers), and 940 Code Mass. Regs.
§ 7.07 (2012) (proscribing, inter alia, false or misleading
representations in connection with debt collection by
creditors), with 209 Code Mass. Regs. § 18.14 (2013) (regulating
debt collector contact with consumers), and 209 Code Mass. Regs.
§§ 18.15-18.17 (2013) (prohibiting harassment, abuse, false or
misleading representations, and unfair practices). For example,
a creditor cannot threaten debtors, use "profane or obscene
language" when speaking with debtors, call or visit debtors
during the night, or contact debtors more than twice in a seven-
day period. 940 Code Mass. Regs. § 7.04. A creditor also
cannot harass the people who reside with the debtors or who
associate with the debtors. Id. at §§ 7.05-7.06. These
regulations were amended in 2012 and explicitly target passive
debt buyers. See 1179 Mass. Reg. 18 (Apr. 1, 2011) (stating, in
notice of hearing on proposed regulations, "The changes to the
regulations expand the scope and modernize the current
regulations to . . . ensure that both active and passive debt
buyers are subject to debt collection laws . . ."). Thus, debt
buyers are, at the very least, regulated as creditors because
they own debts.
19
owed or due another." G. L. c. 93, § 24. This definition, by
its plain meaning, applies only to the collection of a debt that
is "owed or due or asserted to be owed or due another" (emphasis
added). See id. Therefore, an entity cannot be a debt
collector under the second definition if it deals with debts
that it owns instead of debts owed to another. The United
States Supreme Court addressed the second definition in the
FDCPA in Henson, 137 S. Ct. at 1721-1722.13 In that case, the
Court considered whether a company that purchased debts and then
attempted to collect on the debts was a debt collector under the
second definition of "debt collector" in the FDCPA. Id. at
1721. The Court unanimously held that a company that attempts
to collect debts owed to it is not covered by the second
definition because the company is not collecting or attempting
to collect debts owed to another. Id. at 1721-1722. We adopt
this plain language interpretation under the MDCPA and conclude
that LVNV, as a matter of law, is not a debt collector under the
second definition of the MDCPA because it does not deal with
debts that are owed to another.
3. Conclusion. For the reasons discussed, we conclude
that LVNV is not a debt collector under G. L. c. 93, § 24. The
13The United States Supreme Court's decision in Henson v.
Santander Consumer USA, Inc., 137 S. Ct. 1718 (2017), was
released after the Superior Court judge's decision in this case.
20
judgment is vacated, and the matter is remanded to the Superior
Court for further proceedings consistent with this opinion.
So ordered.