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Lisa Torres v. Bernstein

June 21, 2012

LISA TORRES, PLAINTIFF,
v.
BERNSTEIN, SHAPIRO & ASSOCIATES, L.L.C., DEFENDANT.



FINDINGS AND RECOMMENDATIONS

This matter came before the court on October, 14, 2011, for hearing on plaintiff's motion for default judgment. (Doc. No. 15.) David McGlothlin, Esq. appeared telephonically for plaintiff. No appearance was made on behalf of defendant. Having considered all written materials submitted with respect to the motion, and after hearing oral argument, the undersigned recommends that the motion for default judgment be granted.

PROCEDURAL BACKGROUND

Plaintiff initiated this action under the federal Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq., and the California Rosenthal Fair Debt Collection Practices Act ("Rosenthal Act"), California Civil Code § 1788, et seq. In her complaint filed September 16, 2010, plaintiff seeks actual damages pursuant to 15 U.S.C. § 1692k(a)(1), statutory damages of $1,000.00 pursuant to 15 U.S.C. § 1692k(a)(2)(A), costs of litigation and reasonable attorney's fees pursuant to 15 U.S.C. § 1692k(a)(3), actual damages pursuant to California Civil Code § 1788.30(a), statutory damages of $1,000.00 per violation for knowingly and willfully committing violations of California Civil Code § 1788.30(b), and an award of costs of litigation and reasonable attorney's fees pursuant to California Civil Code § 1788.30(c). (Compl. (Doc. No. 1) at 9.*fn1

Despite being served with process, defendant failed to appear in this action. Pursuant to plaintiff's request, the Clerk of the Court entered defendant's default on May 9, 2011. (Doc. No. 11.) On September 13, 2011, plaintiff filed the instant motion, noticing it for hearing before the undersigned pursuant to Local Rule 302(c)(19). (Doc. No. 15.) Despite being served with plaintiff's request for entry of default and all papers filed in connection with plaintiff's motion for default judgment, defendant did not oppose entry of default and neither filed opposition nor appeared at the hearing on plaintiff's motion for default judgment.*fn2

LEGAL STANDARD

Federal Rule of Civil Procedure 55(b)(2) governs applications to the court for default judgment. Upon entry of default, the complaint's factual allegations regarding liability are taken as true, while allegations regarding the amount of damages must be proven. Dundee Cement Co. v. Howard Pipe & Concrete Products, 722 F.2d 1319, 1323 (7th Cir. 1983) (citing Geddes v. United Fin. Group, 559 F.2d 557 (9th Cir. 1977)); see also TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987). Where damages are liquidated (i.e., capable of ascertainment from definite figures contained in the documentary evidence or in detailed affidavits), judgment by default may be entered without a damages hearing. See Dundee, 722 F.2d at 1323. Unliquidated and punitive damages, however, require "proving up" at an evidentiary hearing or through other means. Dundee, 722 F.2d at 1323-24; see also James v. Frame, 6 F.3d 307, 310 (5th Cir. 1993).

Granting or denying default judgment is within the court's sound discretion, see Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986), and the court is free to consider a variety of factors in exercising that discretion, see Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). The court may consider such factors as:

(1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claim, (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, 782 F.2d at 1471-72 (citing 6 Moore's Federal Practice, ¶ 55-05[2], at 55-24 to 55-26).

ANALYSIS

According to plaintiff's complaint, this action arises out of defendant's repeated violations of federal and state consumer laws and the repeated use of false, deceptive or misleading representations by defendant and its agents during illegal efforts to collect a consumer debt.

Specifically, plaintiff has alleged in her complaint as follows. Plaintiff is a "consumer" as that term is defined by the FDCPA, who sometime prior to January of 2010 incurred a financial obligation that meets the definition of a "debt" under the FDCPA, and that the debt was acquired by defendant for collection purposes. (Compl. (Doc. No. 1) at 3-4.) On or about January of 2010, defendant contacted plaintiff's mother at plaintiff's mother's place of employment and left two messages stating that defendant needed to speak with plaintiff regarding a legal matter involving plaintiff's social security number. (Id. at 4.) Defendant's representative provided a number for plaintiff to call but did not identify the caller when leaving the messages. (Id.) Plaintiff called the number provided by defendant's representative and reached a recorded message that informed plaintiff that she had reached the "Pending Warrants Department." (Id. at 5.) Plaintiff spoke with defendant's representative Adam Shaw, who informed plaintiff that defendant was collecting a debt of $800 originally incurred in 2005 to ACE Check Cashing for $350. (Id. at 6.) Plaintiff was frightened that she was contacted by the "Pending Warrants Department" and arranged a payment plan with Adam Shaw. (Id.) Mr. Shaw sent plaintiff a letter confirming the payment arrangement, which called for plaintiff to make six payments of $150, totaling $900, even though defendant claimed plaintiff owed only $800. (Id.)

On January 25, 2010, plaintiff sent Mr. Shaw an email stating that she disputed the debt and that the payment arrangement was null and void. (Id. at 7.) On February 1, 2010, defendant withdrew $150 from plaintiff's checking account. (Id.) Moreover, defendant failed to provide plaintiff with written notification that unless plaintiff disputed the validity of the debt, or any portion thereof, within thirty days, defendant would assume the debt was valid. (Id.) Defendant also failed to provide plaintiff with a written notice that if plaintiff notified the defendant in writing within thirty days that the debt, or any portion thereof, was disputed, defendant would obtain verification of the debt or a copy of a judgment against plaintiff and a copy of such verification or judgment would be mailed to plaintiff by defendant and that defendant would provide plaintiff with the name and address of the original creditor. (Id.) These notices were to be provided to plaintiff by the defendant within five days of defendant's initial communication with her. (Id.)

Plaintiff's complaint alleges one cause of action under the FDCPA and one cause of action under the Rosenthal Act, with multiple violations of the law alleged within each cause of action. As noted above, the complaint prays for the following relief under the FDCPA: actual damages under 15 U.S.C. § 1692k(a)(1), statutory damages of $1,000.00 under 15 U.S.C. § 1692k(a)(2)(A), and costs of litigation and reasonable attorney's fees pursuant to 15 U.S.C. § 1692k(a)(3). (Id. at 9.) The complaint also prays for the following relief under the Rosenthal Act: actual damages under California Civil Code § 1788.30(a), statutory damages of ...


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