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Borillo v. Legal Recovery Law Offices, Inc.

United States District Court, N.D. California, San Jose Division

May 5, 2017

JIMIL BORILLO, Plaintiff,
v.
LEGAL RECOVERY LAW OFFICES, INC., Defendant.

          ORDER FOR REASSIGNMENT TO A DISTRICT JUDGE REPORT AND RECOMMENDATION RE MOTION FOR DEFAULT JUDGMENT RE: DKT. NO. 15

          HOWARD R. LLOYD United States Magistrate Judge.

         Plaintiff Jimil Borillo sues defendant Legal Recovery Law Offices, Inc. (LRLO) for violation of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692, et seq. He claims that LRLO violated FDCPA § 1692i by bringing a legal action against him to collect a consumer debt in a judicial district other than the one in which he lived at the time suit was filed.

         Defendant was served with process (Dkt. 7), but failed to answer or otherwise respond to the complaint. At Borillo's request, the Clerk of the Court entered LRLO's default on November 3, 2016. (Dkt. 9).

         Borillo now moves for default judgment, seeking statutory damages of $2, 000.00, plus attorneys' fees of $3, 060.00, and $470.00 in costs for a total judgment of $5, 530.00. The docket indicates that defendant was served with notice of the present motion. (Dkt. 15-9). This court has received no response to the motion, and the time for briefing has closed. At the court's direction, plaintiff's counsel submitted additional documentation in support of the request for fees.

         Plaintiff has consented to proceed before a magistrate judge, 28 U.S.C. § 636(c); Fed.R.Civ.P. 73. Defendant, however, has never appeared and is in default. Accordingly, this court directs the Clerk of the Court to reassign this action to a district judge, with the following report and recommendation that plaintiff's motion for default judgment be granted in part and denied in part.

         BACKGROUND

         Borillo's complaint alleges the following facts:

         On or around August 19, 2009, LRLO filed a debt collection suit against Borillo in Santa Clara County Superior Court. That suit was filed on behalf of Arrow Financial Services, LLC (Arrow) and alleged that Borillo defaulted on a credit card with an entity known as Household Bank. LRLO's complaint alleged that venue was proper in Santa Clara County because Borillo resided there:

This is the proper venue, superior court and court location for this action because the action involves an offer or provision of goods, services and/or credit intended for commercial use to be sold to the public primarily for personal, family or household use and at least one Defendant resides in this court's jurisdiction.

(Dkt. 1, Complaint at ¶ 8).

         Nevertheless, LRLO subsequently filed a Declaration of Non-Service on September 24, 2009, stating that it attempted to serve Borillo at an address in San Jose, California, but that he did not live at that address. Then, on October 22, 2009, LRLO filed a proof of service indicating that Borillo was served by substituted service at his residence in South San Francisco. South San Francisco is in San Mateo County.

         Borillo states that at the time the state court suit was filed, he did not reside in Santa Clara County. He also claims that he never signed a contract with Household Bank (or any of its assignees) in Santa Clara County. Indeed, plaintiff says he did not recognize the alleged debt and denies ever incurring it. He also claims that he did not receive actual notice of LRLO's suit, until years later when attempts were made to collect the judgment.

         On December 21, 2009 the Santa Clara County Superior Court entered Borillo's default. That was followed by entry of default judgment against him on March 15, 2010 in the amount of $3, 063.80. According to the complaint, at no time before entry of default judgment did LRLO attempt to transfer the case to San Mateo County where Borillo resided.

         Several years later, on October 13, 2015, an Assignment of Judgment was recorded in the state court lawsuit, indicating that the judgment had been assigned from Arrow to LVNV Funding, LLC (LVNV). Borillo says that he did not learn about the state court lawsuit until the following month, November 2015, when LVNV attempted to garnish his wages.

         On March 3, 2016, Borillo moved the Santa Clara Superior Court for an order vacating and setting aside the default judgment. That motion was granted on March 29, 2016. Subsequently, on June 21, 2016 Borillo and ...


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