Greene v. Accredited Mgmt. Sols.
| Decision Date | 01 August 2022 |
| Docket Number | CIVIL 1:21-cv-00185-MR-WCM |
| Parties | MARK GREENE, Plaintiff, v. ACCREDITED MANAGEMENT SOLUTIONS, LLC et al., Defendants. |
| Court | U.S. District Court — Western District of North Carolina |
THIS MATTER is before the Court on the Plaintiff's “Motion for Default Judgment Against Defendant, United Merchant Asset Recovery of WNY, LLC” [Doc. 15] and “Motion for Costs of the Action and Attorney's Fees” [Doc. 15-1].
On July 20, 2021, the Plaintiff, Mark Greene (“Plaintiff”), initiated this action against Defendants Accredited Management Solutions, LLC, United Merchant Asset Recovery of WNY, LLC (“United Merchant”), and Jeremy Brown. [Doc. 1]. The Plaintiff's Complaint asserts claims against the Defendants for violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and the North Carolina Collection Agency Act, N.C. Gen. Stat. § 58-70, ets eq. (“NCCAA”). [Id. at ¶¶ 1-2]. For damages, the Plaintiff seeks actual damages of up to $1,100 under the FDCPA and the NCCAA, statutory damages of $1,000 under the FDCPA, statutory damages of up to $4,000 under the NCCAA, and reasonable attorney's fees and costs. [Id. at ¶¶ 55-57, 62-64; see also Doc. 15 at 3-4].
On July 29, 2021, the Plaintiff filed a proof of service indicating that Defendant United Merchant was served on July 26, 2021. [Doc. 5]. Defendant United Merchant did not make an appearance or otherwise defend the action. On August 17, 2021, the Plaintiff filed a Motion for Entry of Default against Defendant United Merchant. [Doc. 6]. On August 26, 2021, the Clerk entered a default against Defendant United Merchant.[1] [Doc. 8]. On December 3, 2021, the Plaintiff voluntarily dismissed his claims against Defendants Accredited Management Solutions LLC and Jeremy Brown. [Doc. 11].
On January 5, 2022, this Court entered an Order directing the Plaintiff to file an appropriate motion or otherwise take further action with respect to Defendant United Merchant. [Doc. 12]. On January 19, 2022, the Plaintiff filed the present “Motion for Default Judgment Against Defendant, United Merchant Asset Recovery of WNY, LLC,” (“Motion for Default Judgment”) [Doc. 15] and “Motion for Costs of the Action and Attorney's Fees,” (“Motion for Costs”) [Doc. 15-1].
“To obtain a default judgment, a party must first seek an entry of default under Federal Rule of Civil Procedure 55(a).” Hayhurst v. Liberty Int'l Underwriters, No. 5:08-cv-5347, 2009 U.S. Dist. LEXIS 5347, at *2 (N.D. W.Va. Jan. 29, 2009); see Eagle Fire, Inc. v. Eagle Integrated Controls, Inc., No. 3:06-cv-00264, 2006 WL 1720681, at *5 (E.D. Va. June 20, 2006) (). Rule 55(a) states that the clerk must enter default “[w]hen 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.” Fed.R.Civ.P. 55(a). After the clerk enters default, the party may seek a default judgment under Rule 55(b)(1) or (2), depending on the nature of the relief sought. Rule 55(b) “authorizes the entry of a default judgment when a defendant fails ‘to plead or otherwise defend' in accordance with the Rules.” United States v. Moradi, 673 F.2d 725, 727 (4th Cir. 1982). By such a default, a defendant admits the well-pleaded factual allegations in the plaintiff's complaint. Ryan v. Homecomings Fin. Network, 253 F.3d 778, 780 (4th Cir. 2001).
The well-pleaded factual allegations of the Plaintiff's Complaint are deemed admitted by virtue of the Defendant's default. Id. The following is a summary of the relevant and admitted facts.
The Plaintiff is a resident of the Town of Black Mountain, North Carolina. [Doc. 1 at ¶ 7]. Defendant United Merchant is a New York limited liability company and national debt collection agency headquartered in the Town of Lockport, New York. [Id. at ¶ 19]. Defendant United Merchant engaged in collection efforts in North Carolina. [Id. at ¶ 23].
The Plaintiff allegedly owes a debt arising from an automobile deficiency balance that was incurred and defaulted on in approximately 2010. [Id. at ¶¶ 33, 39]. The alleged debt arises from transactions for personal, family, and household purposes. [Id. at ¶ 34]. There have been no further transactions regarding the alleged debt since approximately 2010. [Id. at ¶ 40]. Defendant United Merchant has been attempting to collect this alleged debt from the Plaintiff by calling the Plaintiff's cellular telephone. [Id. at ¶ 35]. On at least one occasion, the Plaintiff answered a call from Defendant United Merchant and spoke to a collector. [Id. at ¶ 36].
During these calls, Defendant United Merchant attempted to collect the alleged debt from the Plaintiff and threatened to sue the Plaintiff if he did not immediately pay the alleged debt. [Id. at ¶ 37]. Defendant United Merchant did not disclose that it could not sue the Plaintiff to collect the alleged debt because North Carolina's three-year statute of limitations had run. [Id. at ¶ 43]. Defendant United Merchant also did not disclose that a partial payment or a promise to pay the alleged debt would reset the statute of limitations. [Id.]. Defendant United Merchant never intended to sue the Plaintiff. [Id. at ¶ 44]. In response to Defendant United Merchant's calls, the Plaintiff paid $1,100 to settle the alleged debt. [Id. at ¶ 37].
The Plaintiff's Complaint alleges violations of the FDCPA, which is a federal law. [Id. at ¶ 54]. As such, the Court has federal question jurisdiction over the Plaintiff's FDCPA claims. See 28 U.S.C. § 1331. The Court also has “supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367. Because the Plaintiff's NCCAA claims are related to the FDCPA claims, the Court has supplemental jurisdiction over those claims. Accordingly, the Court has subject-matter jurisdiction over this action.
The Court must also have personal jurisdiction over Defendant United Merchant to render a valid default judgment. For the Court to have personal jurisdiction, the Plaintiff must prove, by a preponderance of the evidence, that exercising jurisdiction will (1) comply with the forum state's long-arm statute and (2) comport with the due process requirements of the Fourteenth Amendment. See Carefirst of Maryland, Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003) (citation omitted). Because North Carolina's long-arm statute has been construed to extend as far as due process allows, Christian Sci. Bd. of Dirs. of First Church of Christ, Scientist v. Nolan, 259 F.3d 209, 215 (4th Cir. 2001), this two-pronged test is collapsed into the single inquiry of whether the exercise of personal jurisdiction over the defendant comports with due process. Universal Leather, LLC v. Koro AR, S.A., 773 F.3d 553, 559 (4th Cir. 2014).
The Plaintiff's Complaint contains jurisdictional facts sufficient to support the exercise of personal jurisdiction over Defendant United Merchant by stating that Defendant United Merchant engaged in debt collection efforts in North Carolina and directed phone calls to the Plaintiff. [Doc. 1 ¶¶ 6-7, 23-24]. Given those contacts with this forum, Defendant United Merchant should have reasonably anticipated being haled into this Court.
The Plaintiff has also complied with his obligations to effectuate service of process by serving Defendant United Merchant with a summons and a copy of the Complaint pursuant to Federal Rule of Civil Procedure 4. [Doc. 5]. Finally, the venue is proper under 28 U.S.C. § 1391(b) and (c).
Accordingly, this Court has jurisdiction over this matter and will proceed to address the merits of the Plaintiff's Motion for Default Judgment.
In Count I of the Complaint, the Plaintiff asserts claims against Defendant United Merchant for violations of the FDCPA. [Doc. 1 at ¶ 54].
In general, the FDCPA regulates abusive and unfair debt collection practices, ensures consumer protection, encourages fair competition between debt collectors, and provides a remedy for consumers victimized by unscrupulous debt collection practices. See 15 U.S.C. § 1692 et seq. To establish a claim for a violation of the FDCPA, the Plaintiff must show that (1) he has been the object of collection activity arising from consumer debt; (2) the defendant qualifies as a debt collector under the FDCPA; and (3) the defendant has engaged in an act or omission prohibited by the FDCPA. See Dikun v. Streich, 369 F.Supp.2d 781,784-85 (E.D. Va. 2005). Although the FDCPA prohibits a number of debt collection procedures, “[t]he FDCPA is a strict liability statute and a consumer only has to prove one violation to trigger liability.” Akalwadi v. Risk Mgt. Alts., Inc., 336 F.Supp.2d 492, 500 (D. Md. 2004) (citing Spencer v. Henderson-Webb, Inc., 81 F.Supp.2d 582, 590-91 (D. Md. 1999)).
“A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. Therefore, a debt collector violates the FDCPA where it makes a false representation as to the “legal status of any debt,” 15 U.S.C. § 1692e(2)(A), threatens “to take any action that cannot legally be taken or that is not intended to be taken,” 15 U.S.C. § 1692e(5), or uses “any false representation or deceptive means to collect or to attempt to collect any debt,” 15 U.S.C. §...
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