United States District Court, N.D. California, San Jose Division
ORDER FOR REASSIGNMENT TO A DISTRICT JUDGE REPORT AND
RECOMMENDATION RE MOTION FOR DEFAULT JUDGMENT RE: DKT. NO.
R. LLOYD United States Magistrate Judge.
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.
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).
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
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.
complaint alleges the following facts:
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).
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.
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.
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.
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.
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 ...