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Hill v. Ability Recovery Services, LLC

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

September 11, 2019

TORRIE M. HILL, Plaintiff,
v.
ABILITY RECOVERY SERVICES, LLC, Defendant.

          OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT [13]

          HONORABLE NANCY G. EDMUNDS JUDGE

         Before the Court is Plaintiff Torrie M. Hill's motion for default judgment following the Clerk's entry of default against Defendant Ability Recovery Services, LLC in this matter. (Dkt. 13.) Plaintiff asserts she is entitled to default judgment because Defendant has failed to plead or otherwise defend against this action. The Court held a hearing on the motion on September 11, 2019. For the reasons stated below, the Court GRANTS Plaintiff's motion.

         I. Background

         On April 29, 2019, Plaintiff filed her complaint alleging that Defendant violated several provisions of the Fair Debt Collection Practices Act (“FDCPA”) and the Michigan Occupational Code (“MOC”). (Dkt. 1.) More specifically, Plaintiff alleges that Defendant acquired the right to collect an alleged debt she owed and that she was notified that Defendant was reporting the debt on her credit with a balance of $880.00. Plaintiff contacted Defendant and spoke with a representative by the name of Tracy. Plaintiff agreed to pay half of the amount of the debt. She further alleges she made the payment of $393.75 over the phone with her debit card, but Tracy stated that the charge was not completed and accused Plaintiff of using a “card scam.” Plaintiff alleges that in actuality, her debit card had been charged twice. After Tracy claimed that Plaintiff's debit card was not working, Plaintiff provided her bank account information. Later, however, she received an email from Defendant showing that her debit card was charged. Plaintiff called Defendant back and spoke with a different representative, explaining to her what happened. Plaintiff also disputed the charges with her bank.

         Plaintiff alleges that several weeks later, Tracy called her. During that call, Tracy threatened to void Plaintiff's payment and called her a “scam artist.” When Plaintiff asked to speak to a supervisor, Tracy pretended to be a supervisor and threatened to report the debt on her credit report. Plaintiff alleges that to this day, Defendant has both of Plaintiff's payments and refuses to refund the second payment. Plaintiff further alleges that Defendant did not send her any correspondences notifying her of her rights pursuant to the FDCPA, and that Defendant sent her threatening voice mail messages.

         Plaintiff effectuated service on Defendant by serving the summons on an authorized registered agent of Defendant on May 6, 2019. (Dkt. 6.) Defendant did not answer or otherwise plead, and upon request by Plaintiff, the Clerk entered a default on June 20, 2019. (Dkt. 11.) Plaintiff now seeks statutory damages pursuant to both the FDCPA and MOC as well as reasonable attorney's fees and costs.

         II. Legal Standard

         Federal Rule of Civil Procedure 55 allows the court to enter a default judgment against a defendant who has failed to plead or otherwise defend against an action. Before a plaintiff can obtain a default judgment under Rule 55(b), the clerk must first issue an entry of default under Rule 55(a). Once the clerk enters a default, all of a plaintiff's well-pleaded allegations, except those relating to damages, are deemed admitted. See Antoine v. Atlas Turner, Inc., 66 F.3d 105, 110 (6th Cir. 1995).

         When the amount of damages is uncertain, the plaintiff must apply to the court for a default judgment. Rule 55(b)(2) sets forth that

[t]he 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 evidence; or (D) investigate any other matter.

         “‘This provision, by its terms, allows but does not require the district court to conduct an evidentiary hearing.'” Hett v. Bryant Lafayette and Assocs., LLC, No. 10-12479, 2011 U.S. Dist. LEXIS 18253, at *4 (E.D. Mich. Feb. 24, 2011) (quoting Vesligaj v. Peterson, 331 Fed.Appx. 351, 354 (6th Cir. 2009) (unpublished)). Thus, the Court may award damages without an evidentiary hearing as long as a basis exists for the damages requested. See Burrell v. Imperial Recovery Partners, LLC, No. 11-11423, 2011 U.S. Dist. LEXIS 74292, at *3 (E.D. Mich. July 11, 2011).

         III. Analysis

         A. Statutory Damages under the FDCPA

         Plaintiff requests statutory damages pursuant to 15 U.S.C. § 1692k(a)(2). That section entitles a plaintiff to a statutory award of “such additional damages as the court may allow, but not exceeding $1, 000.” § 1692k(a)(2)(a). The Court considers the following factors when determining the amount of the award: “the frequency and persistence of noncompliance by the debt collector, the ...


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