United States District Court, E.D. Michigan, Southern Division
ORDER DENYING PLAINTIFF'S MOTION FOR ENTRY OF
H. CLELAND, UNITED STATES DISTRICT JUDGE.
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.
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
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 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.
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
(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 ...