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Adams v. Oakridge Direct Solutions Corp.

United States District Court, D. New Hampshire

April 3, 2018

Athena Adams
v.
Oakridge Direct Solutions Corp.

          John. F. Skinner, III, Esq.

          REPORT AND RECOMMENDATION

          ANDREA K. JOHNSTONE, UNITED STATES MAGISTRATE JUDGE

         Athena Adams brought suit against Oakridge Direct Solutions Corporation (“Oakridge”) alleging claims arising out of communications that Oakridge made to her in an attempt to collect a debt. On August 22, 2017, the Clerk of the Court entered default against Oakridge. See doc. no. 9. Before the court for Report and Recommendation[1] is Adams's motion for default judgment (doc. no. 11) pursuant to Federal Rule of Civil Procedure 55(b)(2). For the reasons that follow, the court recommends that Adams's motion be granted as to liability and damages, but holds its recommendation with respect to fees and costs in abeyance.

         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). Before entering a default judgment, the court “may examine a plaintiff's complaint, taking all well-pleaded factual allegations as true, to determine whether it alleges a cause of action.” Ramos-Falcón v Autoridad de Energía Electríca, 301 F.3d 1, 2 (1st Cir. 2002) (quoting Guirindongo Pacheco v. Rolon Morales, 953 F.2d 15, 16 (1st Cir. 1992)). The defaulted party is “taken to have conceded the truth of the factual allegations in the complaint . . . .” Ortiz-Gonzalez v. Fonovisa, 277 F.3d 59, 62-63 (1st Cir. 2002) (internal quotation marks omitted) (quoting Franco v. Selective Ins. Co., 184 F.3d 4, 9 n. 3 (1st Cir. 1999)). The defaulted party does not, however, “admit the legal sufficiency of those claims.” 10 James Wm. Moore, Moore's Federal Practice § 55.32[1][b] (3d ed. 2013). 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. 12-cv-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-cv-5212-KSH, 2009 WL 2386074, at *2 (D.N.J. July 31, 2009).

         Background

         By virtue of its default, Oakridge concedes the following facts. Athena Adams resides in Hillsborough County, New Hampshire. Oakridge is a New York corporation in the debt-collection business. Oakridge left two voicemails on Adams's home answering machine. In the first voicemail, Oakridge stated that an attempt at service had been made to Adams, requested that Adams immediately call back, and indicated that if she did not do so a “refusal of allegations” would automatically be entered and “forcible recovery” would begin. In the second voicemail, Oakridge claimed to be a “person locator” with a “case number, ” and threatened to execute service at Adams's place of employment if she did not call back or accept service at her residence. Oakridge made no attempt at forcible recovery or service following these phone calls, and did not provide Adams with the information identified in 15 U.S.C. § 1692g either in its initial communication with Adams or within five days of those communications.

         Discussion

         In Counts I through V, Adams seeks statutory damages under the Fair Debt Collect Practices Act (“FDCPA”), 15 U.S.C. § 1962, et seq.[2] “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). By virtue of its default, Oakridge concedes that it is a debt collector for FDCPA purposes. The allegations in the complaint - and particularly Oakridge's representation that it would begin “forcible recovery” - support a plausible inference that Oakridge was attempting to collect a consumer debt from Adams. Thus, the sole inquiry before the court is whether Adams has adequately alleged that Oakridge engaged in an act or omission prohibited by the FDCPA.

         Adams alleges violations of 15 U.S.C. §§ 1692g, 1692e, 1692f, 1692d, and 1692c. As relevant here, § 1692g requires that a debt collector provide a consumer with certain information regarding a debt either in its initial communication with the consumer or within five days of that communication. Id. § 1692g. In her complaint, Adams alleges that she received two voicemails from Oakridge, but that Oakridge failed to provide her with the information required under § 1692g either in its initial communication or within five days of the communication. Assuming the truth of these allegations, Adams has stated a cause of action under § 1692g(a). She is therefore entitled to default judgment on Count I.[3]

         Damages

         “In the case of defaulting defendants, allegations of damages are not deemed admitted in the context of a default judgment, and it is the plaintiff's burden to establish any entitlement to recovery.” Joe Hand Promotions, Inc. v. Rajan, No. 10-40029-TSH, 2011 WL 3295424, at *3 n.2 (D. Mass. July 28, 2011) (internal quotation marks and citations omitted). “The FDCPA provides that successful plaintiffs are entitled to actual damages [and] statutory damages of up to $1, 000 . . . .” French v. Corp. Receivables, Inc., 489 F.3d 402, 403 (1st Cir. 2007) (quoting 15 U.S.C. § 1692k (a) (3)). Here, Adams seeks only statutory damages.

         “[S]tatutory damages under the FDCPA are limited to $1, 000 per lawsuit, not $1, 000 per violation.” Nelson v. Equifax Info. Servs., LLC, 522 F.Supp.2d 1222, 1238 (C.D. Cal. 2007); see also Wright v. Fin. Serv. of Norwalk, Inc., 22 F.3d 647, 650-51 (6th Cir. 1994) (en banc); Williams v. Pressler and Pressler, LLP, No. 11-7296 (KSH), 2013 WL 5435068, at *10 (D.N.J. Sept. 27, 2013); Stilz v. Global Cash Network, Inc., No. 10 CV 1998, 2010 WL 3975588, at *4 (N.D.Ill. Oct. 7, 2010). “Whether statutory damages should be granted, and, if so, whether the full amount of $1, 000 should be allowed is committed to the discretion of the court.” Manopla v. Brant, Hodge and Assoc., LLC, No. 13-338 (JAP), 2014 WL 793555, at *6 (D.N.J. Feb. 26, 2014) (citations omitted). “In exercising that discretion, courts look to the nature of the violation.” Id. “If the violation is especially egregious, or if plaintiffs show that it was repeated and persistent, courts are more likely to award the full amount.” Id. (citations omitted). When assessing statutory damages in an FDCPA action, the court should consider “the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional.” § 1692k(b)(1).

         In view of the facts alleged in the complaint, the court considers $1, 000 in statutory damages to be an appropriate award. As previously discussed, Adams's claim is based on two voicemail messages left by Oakridge. Assuming the truth of the allegations in the complaint, Oakridge violated the FDCPA in at least three separate ways by failing to provide the required notice under § 1692g(a)(3), § 1692g(a)(4), and § 1692g(a)(5). See Kaylore-Trent v. John C. Bonewicz, P.C.,910 F.Supp.2d 1112, 1115-16 (C.D. Ill. 2012) (noting how even a single debt collector message can violate the FDCPA in multiple ways). Because Oakridge left multiple voicemails attempting to collect a debt and failed to ...


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