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Link v. Recovery Solutions Group L.L.C

United States District Court, E.D. Michigan, Southern Division

April 27, 2018

TERESA LINK, Plaintiff,
v.
RECOVERY SOLUTIONS GROUP, L.L.C., Defendant.

          OPINION AND ORDER GRANTING PLAINTIFF'S RENEWED MOTION FOR DEFAULT JUDGMENT (ECF NO. 15)

          Paul D. Borman United States District Judge

         Plaintiff in this action claims that Defendant Recovery Solutions Group, LLC, attempted to collect a debt from her through threatening and intimidating phone calls in violation of the Fair Debt Collections Practices Act, 15 U.S.C. § 1692 et seq. (“the FDCPA”) and the Michigan Occupational Code, Mich. Comp. Laws § 339.901 et seq. (“the MOC”). Defendant has failed to appear and defend this action, resulting in the Clerk of the Court entering a default on September 29, 2017. Plaintiff now moves for a default judgment under Fed.R.Civ.P. 55(b). Defendant has not responded to the motion for default judgment. The Court held a hearing on February 27, 2018, which was attended only by counsel for the Plaintiff. For the reasons that follow, the Court GRANTS the motion for default judgment and awards Plaintiff the full amount of her requested damages of $27, 057.00.

         I. FACTUAL BACKGROUND

         Plaintiff sought and obtained a Clerk's entry of default against Defendant on September 29, 2017. (ECF No. 14, Clerk's Entry of Default.) Once a default has been entered by the clerk's office, all of a plaintiff's well-pleaded allegations, except those relating to damages, are deemed admitted. Antoine v. Atlas Turner, Inc., 66 F.3d 105, 110 (6th Cir. 1995). See also Ford Motor Co. v. Cross, 441 F.Supp.2d 837, 846 (E.D. Mich. 2006). The Court may either enter a default judgment in a certain amount, or conduct a hearing to determine the appropriate amount of damages. “Fed. R. Civ. P. 55 does not require a presentation of evidence as a prerequisite to the entry of a default judgment, although it empowers the court to conduct such hearings as it deems necessary and proper to enable it to enter judgment or carry it into effect.” Cross, 441 F.Supp.2d at 848.

         Here, the Court deems the allegations of Plaintiff's Complaint admitted and additionally considers the Affidavits filed by Plaintiff in support of the motion for default judgment. Plaintiff is a “consumer” as that term is defined under the FDCPA. (ECF No. 1, Compl. ¶ 4.) Defendant is a “debt collector” as that term is defined under the FDCPA and a “collection agency” as that term is defined under the MOC. (Compl. ¶ 5.) Plaintiff incurred a financial obligation that was primarily for personal, family, or household purposes based upon an alleged debt to Serv-Pro that went into default and is therefore a “debt” as that term is defined under the FDCPA. (Compl. ¶ 6; Pl.'s Mot. Ex. 1.)

         Plaintiff and her live-in boyfriend, Robert Norton, have two phones, one of which is linked to Mr. Norton's cell phone and one of which is linked to their house phone. When an important call comes in, Plaintiff and Mr. Norton have worked out a system where Mr. Norton, who drives trucks for a living, can hear the call as well. To accomplish this, Plaintiff turns on the speaker phone on the house phone land line and the speaker phone on the cell phone, enabling Mr. Norton to hear the call. (Pl.'s Mot. Ex. 2, Aug. 3, 2017 Affidavit of Robert Norton ¶¶ 3, 6-8; Pl.' Mot. Ex. 3, Aug. 18, 2017 Affidavit of Teresa Link ¶¶ 3-8.) In October 2016, while on the road driving his truck, Mr. Norton received a call from an agent of the Defendant alleging that he was a “private investigator” trying to track down the Plaintiff because she had received an inheritance. (Compl. ¶ 7; Norton Aff. ¶ 9.) Mr. Norton pulled over and called Plaintiff to give her the number that the “investigator” had given him, asking that Plaintiff call him. Plaintiff called the number while Mr. Norton listened in, and the “investigator” told Plaintiff that he was hired by a collection agency and that he would be driving by her property to see what property Plaintiff had to sell. (Compl. ¶¶ 8-9.) The investigator stated that there was a woman who needed to get in touch with Plaintiff and gave Plaintiff the woman's number.

         Plaintiff called the woman but she did not answer the phone. (Compl. ¶ 11; Norton Aff. ¶¶ 11-13; Link Aff. ¶¶ 9-12.) The woman, a representative of the Defendant, called Plaintiff back and Mr. Norton heard the conversation. The woman told Plaintiff that she was a lawyer and that Plaintiff had 24 hours to pay a debt related to an insurance claim on a fire at Plaintiff's former residence. (Compl. ¶¶ 13; Norton Aff. ¶¶14-16; Link Aff. ¶¶ 13-16.) The woman represented that she was going to have people come to Plaintiff's home to seize property. Plaintiff did not know she owed the debt to Serv-Pro and asked if she could have time to investigate the alleged debt. The woman insisted that Plaintiff had 24 hours to pay the debt and stated that she would contact the State insurance commissioner and that Plaintiff would go to prison for insurance fraud if she did not pay in that time frame. (Compl. ¶¶ 13-16; Norton Aff. ¶¶ 17-24; Link Aff. ¶¶ 16-25.)

         Plaintiff became hysterical crying as a result of the call, her arms became numb and her head hurt. She thought she would be going to jail because she had no idea how she would come up with the money in 24 hours. (Compl. ¶ 19; Norton Aff. ¶¶ 21-27; Link Aff. ¶¶ 28-29.) She asked Mr. Norton what she should do and he called a friend, Carolyn Norton (no relation) and asked her to call Plaintiff to try to calm her down. (Compl. ¶ 20; Norton Aff. ¶¶ 28-29; Link Aff. ¶ 30.) Ms. Norton did call Plaintiff and they spoke for one and a half to two hours. Plaintiff reiterated to Ms. Norton the events that had transpired and Plaintiff was worried, scared and crying during the call. (Pl.'s Mot. Ex. 4, Aug. 18, 2017 Affidavit of Carolyn Norton 1-16.) Plaintiff eventually did calm down after speaking with Ms. Norton but the collector continued to call her, again and again. (C. Norton Aff. ¶¶ 18; Link Aff. 32.) Every time the phone rang, Plaintiff feared it was the collector calling again and she would mumble to herself, “it's them again, I'm not answering.” (Norton Aff. ¶¶ 30-31; Link Aff. ¶¶ 32-33.) Ms. Norton suggested that Plaintiff contact a lawyer, which Plaintiff did. (Link Aff. ¶ 34-35; C. Norton Aff. ¶¶ 17-18.)

         Plaintiff requests a default judgment in the amount of $27, 057.00, representing: (1) statutory damages under the FDCPA of $1, 000.00; (2) actual damages under the FDCPA of $5, 000.00; (3) three times actual damages under the MOC of $15, 000.00; (4) costs for service of process of $267.00; and (5) attorneys' fees of $5, 790.00.

         II. LEGAL STANDARD

         Pursuant to Federal Rule of Civil Procedure 55(b) a judgment by default may be entered against a defendant who has failed to plead or otherwise defend against an action. In order to obtain judgment by default, the proponent must first request the clerk's entry of default pursuant to Rule 55(a). See Hanner v. City of Dearborn Heights, No. 07-15251, 2008 WL 2744860, at *1 (E.D. Mich. July 14, 2008). Once a default has been entered by the clerk's office, all of a plaintiff's well-pleaded allegations are deemed admitted. Ford Motor Co. v. Cross, 441 F.Supp.2d at 846 (citation omitted).

         Once a default is obtained, the party may then file for a default judgment by the clerk or by the court. Fed.R.Civ.P. 55(b). When the plaintiff's complaint alleges damages for a sum certain a default judgment by the clerk is appropriate. Fed.R.Civ.P. 55(b)(1). “In all other cases, the party must apply to the court for a default judgment.” Fed.R.Civ.P. 55(b)(2). Although Rule 55(b)(2) does not provide a standard to determine when a party is entitled to a judgment by default, the court must exercise “sound judicial discretion” when determining whether to enter the judgment. Wright & Miller, 10A Federal Practice & Procedure, § 2685 (3d ed. 1998) (collecting cases). After a court determines that a default judgment should be entered, it will determine the amount and character of the recovery awarded. See id. § 2688 (collecting cases).

         Where damages are for an uncertain amount, a party must apply to the Court for a default judgment. Entry of default judgment by the Court is governed by Federal Rule of Civil Procedure 55(b)(2). The rule states that, in entering a default judgment:

         [t]he court may conduct hearings or make referrals-preserving any federal statutory right to a jury trial-when, to enter ...


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