United States District Court, D. New Hampshire
REPORT AND RECOMMENDATION
ANDREA K. JOHNSTONE, Magistrate Judge.
Sylvie Forcier brought suit against Creditors Specialty Service, Inc. ("CSS"), alleging claims arising out of telephone calls that CSS made to her and to her son in an attempt to collect a debt. When CSS failed to appear, default was entered against it. See Doc. no. 14. Before the court for a Report and Recommendation is Forcier's motion for default judgment pursuant to Federal Rule of Civil Procedure 55(b)(2). For the reasons that follow, the court recommends that Forcier's motion be granted in part.
Standard of Review
After default is entered and when the amount at issue is not a sum certain, "the party must apply to the court for a default judgment." Fed.R.Civ.P. 55(b)(2); see also KPS & Assocs., Inc. v. Designs by FMC, Inc., 318 F.3d 1, 19 (1st Cir. 2003). "Although a defaulting party admits the factual basis of the claims asserted against it, the defaulting party does not admit the legal sufficiency of those claims." 10 James Wm. Moore, Moore's Federal Practice § 55.32[b] (3d ed. 2013). To recover on a motion for default judgment, "[t]he claimant must state a legally valid claim for relief." Id .; see also Ramos-Falcon v. Autoridad de Energia Electrica, 301 F.3d 1, 2 (1st Cir. 2002). Therefore, before entering default judgment, the court must determine whether the admitted facts state actionable claims. See Hop Hing Produces Inc. v. X & L Supermarket, Inc., No. CV 2012-1401(ARR)(MDG), 2013 WL 1232919, at *2 (E.D.N.Y. Mar. 4, 2013); E. Armata, Inc. v. 27 Farmers Market, Inc., No. 08-5212 (KSH), 2009 WL 2386074, at *2 (D.N.J. July 31, 2009).
Forcier seeks statutory damages, as well as costs and attorney's fees under: (1) the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq. (Counts I - VIII); (2) the Telephone Consumer Protection Act ("TCPA"), 42 U.S.C. § 227 (Count IX); (3) New Hampshire's Unfair, Deceptive, or Unreasonable Collection Practices Act ("UDUCPA"), N.H. Rev. Stat. Ann. ("RSA") ch. 358-C (Counts X - XII); and (4) New Hampshire's Consumer Protection Act ("CPA"), RSA ch. 358-A (Counts XIII, XIV, and XVI). Forcier also seeks actual damages for her claim of invasion of privacy (Count XV).
By virtue of its default, CSS concedes the following facts alleged in the complaint: (i) Forcier is a "consumer, " (ii) Forcier owed a "debt, " and (iii) CSS is a "debt collector, " all within the meaning of the FDCPA and the UDUCPA. CSS further concedes the allegation in the complaint that it communicated with Forcier in an attempt to collect the debt. In addition, CSS admits that it called Forcier both at home and at work, and that CSS received a letter from Forcier dated April 1, 2013, asking it not to contact her again. The complaint alleges details about only five calls:
"Defendant called the Plaintiff's son and left a message in connection with the collection of the debt on at least March 26, 2013." Compl. ¶ 23;
"Defendant contacted the consumer on June 24, 2013 at 9:14 pm through the phone." Id . ¶ 28;
CSS left three voicemail messages on Forcier's phone, and although the complaint includes the content of the messages, the dates of the messages are not provided. See id. ¶¶ 60-62.
Forcier's motion for default judgment does not address any of her claims or allegations, and instead discusses only issues related to CSS's attorney and his failure to appear in this action. At the damages hearing, Forcier testified briefly concerning CSS's conduct and her resulting injury.
A. Claims Under the FDCPA
Forcier alleges eight violations of the FDCPA. "In order to prevail on an FDCPA claim, a plaintiff must prove that: 1) the plaintiff has been the object of collection activity arising from consumer debt, 2) the defendant is a debt collector as defined by the FDCPA, and 3) the defendant has engaged in an act or omission prohibited by the FDCPA." Halsey v. Litton Loan Servicing, No. 12-cv-511-PB, 2013 WL 3754919, at *3 (D.N.H. July 13, 2013) (internal quotation marks and citations omitted). As discussed above, the complaint adequately alleges, and CSS has admitted, the first two elements. Therefore, the court must determine whether Forcier's FDCPA claims sufficiently allege that CSS engaged in an act or omission prohibited by the statute. Forcier's FDCPA claims are set forth in Counts I - VIII.
1. Count I - § 1692d(5)
In Count I of the complaint, Forcier alleges that CSS violated § 1692d(5) by calling her on the telephone repeatedly with the intent to annoy, abuse, and harass her. Section 1692b(5) provides:
A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:... (5) Causing a telephone to ring or engaging any person in a telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.
§ 1692d(5). In determining whether a defendant's conduct violated § 1692d(5), "courts weigh and consider a number of factors, including the frequency, pattern, and nature of the calls...." Finney v. MIG Capital Mgmt., Inc., No. 2:13-02778, 2014 WL 1276159, at *11 (S.D. W.Va. Mar. 27, 2014); see also McVey v. Bay Area Credit Serv., No. 4:10-CV-359-A, 2010 WL 2927388, at *2-*3 (N.D. Tex. July 26, 2010).
Forcier alleges in the complaint that CSS contacted her "through the phones in a repetitive and continuous manner, " including "twice a day on several occasions." Compl. ¶¶ 16-17. She also alleges that CSS "made these calls with intent to annoy, abuse or harass" her. Id . ¶ 19. Forcier's allegations largely track the statutory language, and are insufficient to support the claim.
Allegations that CSS called Forcier in a repetitive and continuous manner "are the type of threadbare recitals and conclusory statements that the Supreme Court sought to prevent in [ Ashcroft v. Iqbal, 556 U.S. 662 (2009)]." Amaya v. Pollack & Rosen, P.A., No. 09-21137-CIV, 2010 WL 724451, at *4 (S.D. Fla. Feb. 25, 2010) (Allegations that the defendant "caus[ed] the telephone to ring repeatedly and continuously" were conclusory and could not support a § 1692d(5) claim.). "While such conduct may be consistent with liability under the FDCPA, it is insufficient factual content [to] allow  the court to draw the reasonable inference that [CSS] is liable for the misconduct alleged.'" Parker v. Barclays Bank Del., No. CV-10-5096-RMP, 2011 WL 2709407, at *3 (E.D. Wash. July 12, 2011) (quoting Iqbal, 556 U.S. at 678); see also Clemente v. IC Sys., Inc., No. 10-cv-569-JAM-EFB, 2010 WL 3855522, at *1-*2 (E.D. Cal. Sept. 29, 2010).
Forcier's allegation that CSS called her "twice a day on several occasions, " while not conclusory, is not sufficient to state a claim under § 1692d(5). Such an allegation does not provide enough detail as to the frequency, pattern, and nature of CSS's calls to make out a claim under § 1692d(5). See Tamayo v. Am. Coradious Int'l, L.L.C., No. 11-6549 (JLL), 2011 WL 6887869, at *3 (D.N.J. Dec. 28, 2011) ("Without more facts regarding the nature and extent of any harassing phone calls, the patterns of such calls, or the substance of any representations made during such calls, the Court cannot find that Plaintiff's claim under § 1692d(5) was sufficiently pled."); see also Brooks v. Flagstar Bank, FSB, No. 11-67, 2011 WL 2710026, at *7 (E.D. La. July 12, 2011); cf. Harmon v. Virtuoso Sourcing Grp. LLC, No. 2:11-cv-334, 2012 WL 4018504, at *4 (S.D. W.Va. Sept. 12, 2012) (granting default judgment under § 1692d(5) where plaintiff attached call log to complaint showing that defendant called twenty times within a ten day period and increased the frequency of the calls after the plaintiff asked the defendant to stop calling).
In addition, although Forcier alleges that CSS made calls with the intent to annoy, abuse, and harass her, "[a]lleging that the Defendant harassed and abused Plaintiff is merely a legal conclusion couched as a factual allegation." Quander v. Hillcrest, Davidson, and Assoc. LLC, No. RDB-12-1932, 2012 WL 6727141, at *3 (D. Md. Dec. 27, 2012) (internal quotation marks and citation omitted); see also Abdallah v. Bain Capital LLC, No, 12-12027-DPW, 2013 WL 3491074, at *2 n.2 (D. Mass. July 9, 2013) (allegations of intent without further factual enhancement are "conclusory allegations"). While a defaulting party accepts as true all factual allegations against them, "the court need not accept the moving party's legal conclusions, because... a party in default does not admit mere conclusions of law." Hoover v. A & S Collection Assoc., Inc., No. 2:13-CV-05852, 2014 WL 2711036, at *2 (D.N.J. June 16, 2014) (internal quotation marks and citations omitted); see also Prescription Containers, Inc. v. Cabiles, No. 12 Civ. 4805(CBA)(VMS), 2014 WL 1236919, at *8 (E.D.N.Y. Feb. 14, 2014) ("legal conclusions are not accepted as true on default"). Therefore, Forcier's allegation that CSS called her with the intent to annoy, abuse, or harass her is not entitled to be accepted by the court.
Accordingly, Count I of the complaint does not state an actionable claim because Forcier has not alleged sufficient facts to entitle her to relief.
2. Count II - Section 1692c(b)
Forcier alleges in Count II that CSS called her son and left a message in connection with the debt. She contends that the act of leaving the message constitutes a violation of § 1692c(b). Section 1692c(b) provides in relevant part as follows:
(b) Communication with third parties
Except as provided in section 1692b of this title, without the prior consent of the consumer given directly to the debt collector, ... a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.
§ 1692c(b). Thus, § 1692c(b) proscribes a debt collector's communications with third parties in connection with the collection of a debt unless that communication is otherwise permitted under § 1692b. Section 1692b allows a debt collector to communicate with third parties for the purpose of acquiring location information about a consumer as long as the debt collector follows specific guidelines, including "not stat[ing] that such consumer owes any debt." § 1692b(2).
Section 1692c(b) is broadly construed. See Blair v. Sherman Acquisition, No. 04 C 4718, 2004 WL 2870080, at *3 (N.D. Ill.Dec. 13, 2004); see also Strouse v. Enhanced Recovery Co., L.L.C., 956 F.Supp.2d 627, 634 (E.D. Pa. 2013). Courts have held that "debt collectors violate § 1692c(b) by harassing unobligated family members and by leaving messages on answering machines that children and parents could hear." Strouse, 956 F.Supp.2d at 634 (citing FTC v. Check Enforcement, No. CIV. A. 03-2115(JWB), 2005 WL 1677480, at *8 (D.N.J. July 18, 2005)); see also Miller v. Prompt Recovery Servs., Inc., No. 5:11CV2292, 2013 WL 3200659, at *11-*12 (N.D. Ohio June 24, 2013).
Forcier alleges that CSS called her "son and left a message in connection with the collection of the debt on at least March 26, 2013." Compl. ¶ 23. She further alleges that the message "disclosed the existence of the debt" to her son. Id . ¶ 24. These allegations, admitted as true by CSS because of its default, are sufficient to show that CSS communicated with a third party, and that such communication was not allowed under § 1692b. Accordingly, the complaint asserts a claim for relief under § 1692c(b), and Forcier is entitled to default judgment on Count II.
3. Count III - § 1692c(a)(1)
In Count III of the complaint, Forcier asserts a claim under § 1692c(a)(1). That section provides that a debt collector may not communicate with a consumer:
At any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer. In the absence of knowledge of circumstances to the contrary, a debt collector shall assume that the convenient time for communicating with a consumer is after 8 o'clock antemeridian and before 9 o'clock postmeridian, local time at the consumer's location.
The complaint alleges that CSS "contacted [Forcier] on June 24, 2014 at 9:14 pm through the phone." Compl. ¶ 28. It also alleges that CSS "had no knowledge that calling at such a late hour would be convenient for" Forcier. Id . ¶ 30. These allegations, taken as true, state a claim for relief under § 1692c(a)(1). See, e.g., Pillar v. Takhar Grp. Collection Servs., Ltd., No. 12-CV-355A (Sr.), 2012 WL 6209755, at *2 (W.D.N.Y. Nov. 21, 2012) ("[I]t is a violation of 15 U.S.C. § 1692c(a)(1) to telephone a debtor after 9:00 p.m...."). Accordingly, Forcier is entitled to default judgment on Count III.
4. Counts IV and V - § 1692e
In Counts IV and V of the complaint, Forcier asserts claims under § 1692e. Section 1692e prohibits a debt collector from using "any false, deceptive, or misleading representation or means in connection with the collection of any debt." § 1692e. The sixteen subsections of § 1692e set forth a non-exhaustive list of practices that fall within this ban. These subsections include: "(3) The false representation or implication that any individual is an attorney or that any communication is from an attorney" and "(5) The threat to take any action that cannot legally be taken or that is not intended to be taken." §§ 1692e(3) & (5).
a. Count IV
In Count IV of the complaint, Forcier alleges that CSS falsely implied in a phone call that it was the legal department of St. Mary's Bank in connection with trying to collect a debt. See Compl. ¶¶ 35-38. Although Forcier does not plead the claim under § 1692e(3), her allegation is understood to assert a violation of that subsection. See Pollard v. Law Office of Mandy L. Spaulding, 967 F.Supp.2d 470, 478 n.6 (D. Mass. 2013) ("Although plead under the general ban in section 1692e..., this allegation is perhaps best characterized as a violation of subsection (3), which prohibits the false representation that a collection letter is a communication... from an attorney." (internal quotation marks and citation omitted)).
"[F]or FDCPA purposes, [a communication] is to be viewed from the perspective of the hypothetical unsophisticated consumer." Pollard v. Law Office of Mandy L. Spaulding, 766 F.3d 98, 103 (1st Cir. 2014). This standard is similar to the "least sophisticated consumer" standard employed by the majority of circuits. Id. at 103 n.4; see also Waters v. J.C. Christensen & Assoc., Inc., No. 08-11795-NG, 2011 WL 1344452, at *8 (D. Mass. Mar. 4, 2011) ("[D]ifferentiating between the least sophisticated consumer and the unsophisticated consumer standards would involve the splitting of split hairs." (internal quotation marks and citation omitted)). "The standard protects all consumers, including the inexperienced, the untrained, and the credulous." Pollard, 766 F.3d at 103.
CSS's phone call falsely representing that it was from St. Mary's legal department is sufficient to give the hypothetical unsophisticated consumer the impression that the communication is from an attorney. See Rosenau v. Unifund Corp., 539 F.3d 218, 223-24 (3d Cir. 2008) ("[I]t is possible that a debtor receiving a collection letter from Unifund[s Legal Department] could reasonably infer that the Legal Department contains attorneys who played a role in writing or sending the letter."); see also Crespo v. Brachfeld Law Grp., ...