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Kenyon v. Professional Credit Control

January 20, 2010

ERIC KENYON, PLAINTIFF,
v.
PROFESSIONAL CREDIT CONTROL, DEFENDANT.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Plaintiff's motion for entry of default judgment against defendant Professional Credit Control ("defendant"), filed October 19, 2009, was submitted on the record. Local Rule 230(h). Upon review of the motion and the supporting documents, and good cause appearing, the court issues the following findings and recommendations.

BACKGROUND

On May 30, 2009, plaintiff filed the underlying complaint in this action against defendant, alleging defendant violated the Fair Debt Collection Practices Act ("FDCPA") (15 U.S.C. § 1692), and state law through its failure to provide required notices, collecting amounts not authorized by the debt agreement or not authorized by law, false representations and threats that nonpayment of the debt would result in seizure, garnishment, attachment or sale of plaintiff's property or wages, and threats to sue, all of which caused plaintiff humiliation, embarrassment, and emotional distress, and invaded his privacy. The summons and complaint were served on August 5, 2009, by substituted service, with follow up service by U.S. mail on August 5, 2009. Fed. R. Civ. P. 4(h). Pacific Atlantic Trading Co. v. M/V Main Express, 758 F.2d 1325, 1331 (9th Cir. 1985) (default judgment void without personal jurisdiction). Defendant has failed to file an answer or otherwise appear in this action. On October 2, 2009, the clerk entered default against defendant Professional Credit Control.

Notice of the request for entry of default and the instant motion for default judgment and supporting papers were served by mail on defendant at its last known address. Defendant filed no opposition to the motion for entry of default judgment. Plaintiff seeks an entry of default judgment in the amount of $2,000 against defendant plus $3,965 in attorney's fees and costs, for a total of $5,965.

DISCUSSION

Entry of default effects an admission of all well-pleaded allegations of the complaint by the defaulted party. Geddes v. United Financial Group, 559 F.2d 557 (9th Cir. 1977). The court finds the well pleaded allegations of the complaint state a claim for which relief can be granted. Anderson v. Air West, 542 F.2d 1090, 1093 (9th Cir. 1976). The memorandum of points and authorities and affidavits filed in support of the motion for entry of default judgment also support the finding that plaintiff is entitled to the relief requested. There are no policy considerations which preclude the entry of default judgment of the type requested. See Eitel v. McCool, 782 F.2d 1470, 1471-1472 (9th Cir. 1986).

A. Statutory Damages

Plaintiff seeks $1,000 pursuant to § 1692k(a)(2)(A) of the FDCPA, and $1,000 under the Rosenthal Act (Cal. Civ. Code § 1788.30(c)), for a total of $2,000.

1. FDCPA

The FDCPA provides for damages of up to $1,000, and provides for factors to be considered by the court, including "the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional." 15 U.S.C. § 1692k(a)(2)(A); (b)(1). Statutory damages are limited to $1,000 per action. Clark v. Capital Credit & Collection Services, Inc., 460 F.3d 1162, 1178 (9th Cir. 2006) (limiting statutory damages to "one set of circumstances"); Nelson v. Equifax Information Services, LLC, 522 F. Supp.2d 1222 (C.D. Cal. 2007) (limiting statutory damages to "$1,000 per lawsuit, not $1,000 per violation"). The statute itself provides that "in the case of any action by an individual, such additional damages as the court may allow, but not exceeding $1,000 ..." 15 U.S.C. § 1692k(a)(2)(A).

Plaintiff's request for $1,000 in statutory damages under the FDCPA is supported by the allegations of plaintiff's complaint and should be awarded.

2. Rosenthal Act

Plaintiff also seeks $1,000 per defendant under Cal. Civ. Code § 1788.30(b).*fn1 California's ...


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