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Bacon v. Equityexperts.Org, LLC

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

June 26, 2018

RAUL BACON, Plaintiff,
v.
EQUITYEXPERTS.ORG, LLC, Defendant.

          ORDER DENYING PLAINTIFF'S MOTION FOR ENTRY OF DEFAULT JUDGMENT

          ROBERT H. CLELAND, UNITED STATES DISTRICT JUDGE.

         Before the court is Plaintiff Raul Bacon's motion for entry of default judgment on his complaint brought pursuant to the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, the Michigan Occupational Code, Mich. Comp. Laws § 339.901, and the Michigan Collection Practices Act, Mich. Comp. Laws § 445.251. (Dkt. # 11.) The court held a hearing on the motion on June 6, 2018. Defendant did not attend the hearing and has otherwise failed to respond or appear in this action. However, for the reasons explained herein, the court will deny Plaintiff's motion.

         I. BACKGROUND

         Plaintiff filed his complaint on August 29, 2017. (Dkt. #1.) Following an order granting Plaintiff's request to extend the summons and for alternative service (Dkt. # 4), service was effectuated on Defendant via first-class mailing with certificate of mailing on December 15, 2017; via certified, return receipt, mailing on December 18, 2017; and personally on Defendant's agent at its office in Auburn Hills, MI on January 8, 2018. (Dkt. # 5.) Defendant did not answer the complaint, and Plaintiff requested clerk's entry of default, which was entered on January 31, 2018. Plaintiff's motion for entry of default judgment seeks to recover statutory damages, economic damages, plus attorney fees and court costs. (Dkt. # 11.) The court held a hearing on Plaintiff's motion on June 6, 2018; Defendant did not appear.

         During the hearing, Plaintiff testified to the truth of the facts contained in his complaint. Plaintiff averred that Defendant obtained a lien on his condominium after Plaintiff failed to pay Defendant's fees for its efforts in collecting a debt Plaintiff owed to his condominium association. Plaintiff testified to his frustration in receiving multiple notices a month from Defendant increasing its fees despite the fact that Plaintiff had paid off the pertinent debt and had made substantial payments to Defendant for its fees. Plaintiff alleges that Defendant's actions constitute willful violations of federal and state law and he asks this court to provide statutory damages of $1, 000 pursuant to 15 U.S.C. § 1692k(a)(2)(A), economic damages of $2, 665 (Dkt. # 1, Pg. ID 3), reasonable attorneys' fees and costs[1] under 15 U.S.C. § 1692k(a)(3), and a treble damages award pursuant to Mich. Comp. Laws § 445.257(2) and Mich. Comp. Laws § 339.916(2). Additionally, Plaintiff relies upon Zontini v. Merch. Recovery Servs., Inc., No. 12-14912, 2013 WL 5640125, at *1 (E.D. Mich. Oct. 15, 2013) and Green v. Nationwide Arbitration Servs., LLC, No. 14-14280, 2015 WL 7717165, at *1 (E.D. Mich. Nov. 30, 2015) in asking the court for emotional damages in the amount of $20, 000.

         II. STANDARD

         Federal Rule of Civil Procedure 55 allows the court to enter a default judgment. It states,

(a) Entering a Default. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.
(b) Entering a Default Judgment.
(1) By the Clerk. If the plaintiff's claim is for a sum certain or a sum that can be made certain by computation, the clerk--on the plaintiff's request, with an affidavit showing the amount due--must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person.
(2) By the Court. In all other cases, the party must apply to the court for a default judgment. A default judgment may be entered against a minor or incompetent person only if represented by a general guardian, conservator, or other like fiduciary who has appeared. If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of the application at least 7 days before the hearing. The court may conduct hearings or make referrals--preserving any federal statutory right to a jury trial--when, to enter or effectuate judgment, it needs to:
(A) conduct an accounting;
(B) determine the amount of damages;
(C) establish the truth of any allegation by ...

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