Kuberski v. Cred X Debt Recovery, LLC
| Decision Date | 02 July 2012 |
| Docket Number | Civil Action No. 11-cv-03247-RPM-KLM |
| Parties | SUSAN KUBERSKI, Plaintiff, v. CRED X DEBT RECOVERY, LLC, Defendant. |
| Court | U.S. District Court — District of Colorado |
This matter is before the Court on Plaintiff's Motion for Default Judgment [Docket No. 8; Filed March 7, 2012] (the "Motion"). Pursuant to 28 U.S.C. § 636(b)(1)(A) and D.C.COLO.LCivR 72.1C., the Motion is referred to this Court for recommendation [#11]. Plaintiff seeks entry of default judgment against Defendant Cred X Debt Recovery, LLC. Pursuant to Fed. R. Civ. P. 55(a), the Clerk of Court entered default against Defendant on March 2, 2012 [#7]. Defendant has not responded to Plaintiff's Complaint or the present Motion. For the reasons set forth below, the Court recommends that the Motion be GRANTED IN PART as stated herein.
Plaintiff initiated this lawsuit on December 12, 2011, alleging violations of the Fair Debt Collection Practices Act ("FDCPA"). [#1]. Plaintiff obtained service on Defendant onDecember 23, 2011. [#4]. Defendant failed to respond to Plaintiff's Complaint.
A Scheduling/Planning Conference was set for April 9, 2012. [#3]. The Court reset the Scheduling Conference for April 12, 2012, and ordered the parties to submit their proposed scheduling order no later than April 6, 2012. [#5]. On March 1, 2012, Plaintiff filed a Motion for Entry of Default. [#6]. The Clerk of Court entered default against Defendant on March 2, 2012. [#7]. Plaintiff filed the Motion at issue on March 7, 2012. [#8]. Defendant failed to file a response to the Motion at issue. On March 8, 2012, Plaintiff filed a Motion to Vacate or in the Alternative Appear Telephonically at Scheduling Conference. [#9]. The Court noted that "Defendant has not filed an answer or other response," and granted the Motion to Vacate the Scheduling Conference. [#12].
Plaintiff allegedly accrued a debt on CashNet Account 12534014 "from a transaction in which the money, property, insurance, or services that are the subject of the transaction were incurred primarily for personal, family, or household purposes."1 at 2. The debt incurred was purchased by ACS, a "debt collector," from CashNet. Id.; [#1-1].
On June 21, 2011, Plaintiff received an email from ACS which asserted that Plaintiff had a "Default Balance/Charged Off Balance" of $600 with a corresponding "Collection Fee of $200" regarding CashNet Account 12534014. Id. However, the email noted that Plaintiff had made a payment of $400 on June 21, 2011, and that the debt was considered "PAID IN FULL." Id. The email stated:
ACS purchased this debt with the intention of pursuing in legally. Your last payment in the amount of $400.00 was received on 6/21/2011 and as of this date aforementioned Debt is considered PAID IN FULL and you are released of any obligation in regards to this debt.
See id. at 2-3; see also [#1-1].
On August 29, 2011, Plaintiff received an email from Defendant, a "debt collector," which contained an offer to accept partial payment of $700 ($450 due on August 24, 2011 and $250 due on August 31, 2011) to satisfy an alleged $800 debt regarding CashNet Account 12534014. See [#1-2].2 The email stated, "[u]pon clearance of these funds your account will be considered satisfied in full and there will remain no further outstanding obligation." Id.
On September 7, 2011, at 11:58 A.M., Plaintiff received a phone call and voicemail message from Defendant as follows:
We have given you ample time to respond to our messages. We feel that you are avoiding our calls. The offices of CDR are going to need a return call. We believe to have [sic] your banking information on file, and are going to need to ask you some questions before we process anything. Failure to comply within 48 hours, we will have no choice but to make a decision on your behalf. Our office number is 1-855-546-7300. Again, 1-855-546-7300.
[#1] at 3.
On September 7, 2011, at 1:12 P.M., Plaintiff received a phone call and a "three second silent voicemail message" from Defendant. Id. at 4. On September 7, 2011, at 1:13 P.M., Plaintiff received a phone call and a "four second silent voicemail message" from Defendant. Id. On September 8, 2011, at 9:59 A.M., Plaintiff received a phone call and a"four second silent voicemail message" from Defendant. Id. On September 8, 2011, at 5:56 P.M., Plaintiff received a phone call and a "four second silent voicemail message" from Defendant. Id.
Based on the emails and phone calls cited above, Plaintiff claims that Defendant violated the FDCPA. See id. at 5-7. More specifically, Plaintiff avers that Defendant violated: (1) "15 U.S.C. § 1692d(6) by failing to disclose Defendant's true corporate or business name in a telephone call to Plaintiff;" (2) "15 U.S.C. § 1692e(2)(A) by claiming Plaintiff owed an alleged debt of $800.00, and thus falsely representing the character, amount, or legal status of Plaintiff's debt;" (3) "15 U.S.C. § 1692e(10) by conveying a false sense of urgency in telephone calls to Plaintiff for the purpose of compelling Plaintiff to communicate with a debt collector and by claiming Plaintiff owed an alleged debt of $800.00, and thus using false representations and deceptive practices in connection with collection of an alleged debt from Plaintiff;" and (4) "15 U.S.C. § 1692e(11) by failing to notify Plaintiff during each collection contact that the communication was from a debt collector." Id.
Pursuant to Fed. R. Civ. 55, default may enter against a party who fails to appear or otherwise defend a lawsuit. Here, entry of default was proper because Defendant failed to respond to Plaintiff's Complaint. After a proper entry of default, the Court must decide "whether the unchallenged facts create a legitimate basis for the entry of a judgment." See Greenwich Ins. Co. v. Daniel Law Firm, No. 07-cv-2445-LTB-MJW, 2008 WL 793606, at *1 (D. Colo. Mar. 22, 2008) (unpublished decision) (citations omitted). "[A] party is not entitled to a default judgment as of right; rather the entry of a default judgment is entrustedto the 'sound judicial discretion' of the court." Id. at *2 (quoting Cablevision of S. Conn., Ltd. P'ship v. Smith, 141 F. Supp. 2d 277, 281 (D. Conn. 2001)).
In determining whether the entry of default judgment is warranted here, the Court must first consider whether it may exercise subject matter and personal jurisdiction over the parties and the dispute. Dennis Garberg & Assocs. v. Pack-Tech Int'l Corp., 115 F.3d 767, 772 (10th Cir. 1997); Williams v. Life Sav. & Loan, 802 F.2d 1200, 1202-03 (10th Cir. 1986). The Court must do so in consideration of the well-established law that "a judgment is void if the court that enters it lacks jurisdiction over either the subject matter of the action or the parties to the action." Williams, 802 F.2d at 1203.
Plaintiff asserts that the Court has subject matter jurisdiction over this lawsuit based on federal question jurisdiction. See [#1] at 1. Federal question jurisdiction is governed by 28 U.S.C. § 1331, which provides in pertinent part that "[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." Plaintiff's cause of action arises under 15 U.S.C. § 1692k(d) of the FDCPA, which is a federal statute. Id. Pursuant to 15 U.S.C. § 1692k(d), a plaintiff may pursue a civil cause of action "in any appropriate United States district court without regard to the amount in controversy . . . within one year from the date on which the violation occurs."
Plaintiff filed this action on December 12, 2011, which is less than one year after her receipt of the June 21, 2011 email, April 29, 2011 email, September 7, 2011 phone calls, and September 8, 2011 phone calls. See [#1] at 2-5. The action is therefore timely, and as Plaintiff brings the lawsuit pursuant to the FDCPA, the action arises pursuant to a federalstatute. Accordingly, the Court recommends finding that the Court has subject matter jurisdiction over this dispute pursuant to 28 U.S.C. § 1331.
Plaintiff bears the burden of establishing personal jurisdiction. Intercon, Inc. v. Bell Atl. Internet Solutions, Inc., 205 F.3d 1244, 1247 (10th Cir. 2000). "[P]laintiff need only make a prima facie showing [of personal jurisdiction] if the motion [for default judgment] is decided only on the basis of the parties' affidavits and other written materials." Dennis Garberg & Assocs., Inc., 115 F.3d at 773. As further explained below, in making a determination on a motion for default judgment, the Court accepts the well-pled allegations of Plaintiff's Complaint as true. However, this deferential pleading standard does not extend to statements of legal conclusion couched as fact. Cf. Miller v. Kelly, No. 10-cv-02132-CMA-KLM, 2010 WL 4684029, at *4 (D. Colo. Nov. 12, 2010) (citations omitted) ("While the Court accepts Plaintiff's well-pled allegations as true for the purpose of establishing personal jurisdiction over Defendant . . . It accords no deference to Plaintiff's conclusory and wholly unsupported allegations.").
The Court must first address the adequacy of service in making its determination as to whether it has personal jurisdiction over Defendant. See United States v. Elsberg, No. 08-cv-00522-MSK-KLM, 2010 WL 5177439, at *2 (D. Colo. Aug. 17, 2010). Plaintiff's Complaint identifies Defendant as a limited liability corporation ("LLC"). See [#1]. Therefore, the Court analyzes the adequacy of service in the context of Fed. R. Civ. P. 4(h), which establishes the requirements for service of a corporation, partnership, or association. Rule 4(h) provides that service on a corporation, partnership, or association is adequate if effected "by delivering a copy of the summons and of the complaint to anofficer, a...
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