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MAUNDU v. CORBRITT

November 16, 2005.

KELU NDUNGE MAUNDU, Plaintiff,
v.
CORBRITT, SHAW & ASSOCIATES, INC., et. al., Defendants.



The opinion of the court was delivered by: JAMES WARE, District Judge

ORDER GRANTING PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT

I. INTRODUCTION

Presently before the Court is Plaintiff Kelu Ndunge Maundu's ("Plaintiff") Motion for Default Judgment against Defendant Corbritt, Shaw & Associates, Inc. and Defendant Todd Christopher Shaw (hereinafter "Defendants") pursuant to Rule 55, Fed.R.Civ.P. The motion is noticed for hearing on November 28, 2005. Neither of the defendants has submitted an opposition to Plaintiff's motion. The Court finds it appropriate to take the motion under submission for decision based on the papers filed by Plaintiff, without oral argument pursuant to Civil Local Rule 7-1(b). Based upon all papers filed to date, the Court finds that Plaintiff is entitled to default judgment against Defendants.

  II. BACKGROUND

  On July 13, 2005, Plaintiff filed this action against Defendants for violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (hereinafter "Federal FDCPA") and California's Rosenthal Fair Debt Collection Practices Act, Civil Code 1788, et seq. (hereinafter, "California FDCPA").

  Plaintiff alleged that Defendants violated the Federal FDCPA because Defendants: (1) falsely represented the amount of the alleged debt; (2) falsely represented or implied that a lawsuit could or would be filed against Plaintiff when Defendants did not intend to do so; (3) drafted and sent Plaintiff a collection letter to instill in Plaintiff a false sense of urgency; (4) threatened to sue Plaintiff for the debt; (5) attempted to collect interest, fees, and/or other charges that were not expressly authorized by the agreement creating the debt; (6) falsely represented the name of the creditor to whom the alleged debt was owed; (7) provided Plaintiff with less than thirty days to send a written request to Defendants requesting verification of the alleged debt; (8) provided Plaintiff with less than thirty days to send a written request to Defendants requesting the name and address of the original creditor; (9) continued its collection efforts after Plaintiff sent a written notification to Defendants requesting Defendants not to contact Plaintiff; (10) used obscene or profane language against Plaintiff to collect the debt; and (11) falsely represented themselves as representatives of U.S. Bank.

  Plaintiff also alleged that Defendants violated the California FDCPA by: (1) failing to comply with the Federal FDCPA; and (2) communicating with Plaintiff by telephone with such frequency as to be unreasonable and to constitute a harassment to the Plaintiff under the circumstances. Defendants were personally served with a copy of the summons and complaint on August 9, 2005. Defendants failed to answer the complaint or otherwise defend the action. On September 16, 2005, the Clerk of this Court entered default against Defendants. On October 21, 2005, Plaintiff filed this Motion for Default Judgment.

  III. STANDARDS

  Upon entry of default, the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true. Geddes v. United Financial Group, 559 F.2d 557, 560 (9th Cir. 1977) (citing Pope v. United States, 323 U.S. 1, 12 (1944)). Necessary facts not contained in the pleadings, and claims which are legally insufficient, however, are not established by default. Cripps v. Life Ins. Co. of North America, 980 F.2d 1261, 1267 (9th Cir. 1992). In exercising its discretion to grant default judgment, the court may consider the following factors: (1) the possibility of prejudice to the plaintiff; (2) the merits of plaintiff's substantive claims; (3) the sufficiency of the complaint; (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to excusable neglect; and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986).

  IV. DISCUSSION

  A. Statutory Damages

  Plaintiff contends that statutory damages is warranted under the Federal FDCPA. The Federal FDCPA precludes the use of false representations, threats, and deceptive practices to collect debt from an individual. See Bracken v. Harris & Zide, L.L.P., 219 F.R.D. 481, 484 (N.D.Cal., 2004). Plaintiff alleged that Defendants sent Plaintiff a demand letter that violated the Federal FDCPA in several respects. For example, Plaintiff alleged that Defendants provided Plaintiff with less than thirty days to send a written request to Defendants requesting verification of the alleged debt. Construing the allegation as true for purposes of Plaintiff's Motion for Default Judgment, the Court finds that Defendants are liable to Plaintiff for relief under the Federal FDCPA. See 15 U.S.C. § 1692(b) (Consumer has the option of notifying the debt collector in writing within the thirty-day period.). The maximum recovery for a plaintiff in an action under the Federal FDCPA, who did not allege any actual damages and requested only statutory damages, is $1,000. See 15 U.S.C. § 1692k. Therefore, the Court awards Plaintiff statutory damages in the amount of $1,000 under the Federal FDCPA.

  Plaintiff also contends that statutory damages is warranted under the California FDCPA. Under the California FDCPA, "any debt collector who willfully and knowingly violates [Title 1.6C "Fair Debt Collection Practices"] with respect to any debtor shall, in addition to actual damages sustained by the debtor as a result of the violation, also be liable to the debtor . . . not be less than one hundred dollars ($100) nor greater than one thousand dollars ($1,000)." Cal. Civ. Code § 1788.30(b). Plaintiff alleged that Defendants sent a collection letter to Plaintiff, and that the letter falsely represented that a legal proceeding has been, is about to be, or will be instituted unless Plaintiff paid her credit card debt to U.S. Bank. Taking Plaintiff's allegations as true for purposes of the motion for default judgment, Defendants violated Title 1.6C. See Cal. Civ. Code § 1788.13(j). Therefore, the Court finds it appropriate to award Plaintiff statutory damages in the amount of $1,000 under the California FDCPA.

  Additionally, Plaintiff contends that under Cal. Civ. Code § 1788.17, she is entitled to an additional $1,000 in statutory damages under the California FDCPA, even though the maximum recovery for a plaintiff in an action under the California FDCPA is $1,000. Cal. Civ. Code § 1788.30(b). California Civil Code § 1788.17 provides that "notwithstanding any other provision of [Title 1.6C], every debt collector collecting or attempting to collect a consumer debt shall comply with the [Federal FDCPA] . . ., and shall be subject to the remedies in [Section 1692k of the Federal FDCPA]." Cal. Civ. Code § 1788.17. Because Defendants are already subject to the remedies in Section 1692k for violating the Federal FDCPA, and because Cal. ...


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