Obenauf v. Frontier Financial Group Inc.

Decision Date19 May 2011
Docket NumberNo. Civ. 11–0085 JB/KBM.,Civ. 11–0085 JB/KBM.
Citation785 F.Supp.2d 1188
PartiesRichard OBENAUF, Plaintiff,v.FRONTIER FINANCIAL GROUP, INC., Defendants.
CourtU.S. District Court — District of New Mexico

785 F.Supp.2d 1188

Richard OBENAUF, Plaintiff,
v.
FRONTIER FINANCIAL GROUP, INC., Defendants.

No. Civ. 11–0085 JB/KBM.

United States District Court, D. New Mexico.

May 19, 2011.


[785 F.Supp.2d 1190]

Rob Treinen, Treinen Law Office, Albuquerque, NM, for Plaintiff.

[785 F.Supp.2d 1191]

AMENDED MEMORANDUM OPINION AND ORDER 1
JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the Plaintiff's Brief on Damages, filed April 8, 2011 (Doc. 12)(“Brief”); and (ii) the Plaintiff's Unopposed Motion for Leave to File Notice of Additional Authority, filed May 3, 2011 (Doc. 14). The Court held an evidentiary hearing on April 13, 2011. The primary issue is what damages the Court should award Plaintiff Richard Obenauf against Defendant Frontier Financial Group, Inc. (“FFG”). The Court grants in part and denies in part the requests in R. Obenauf's Brief. The Court awards R. Obenauf $150.00 for emotional distress, $300.00 in statutory damages, $11.08 in compensatory damages, and enjoins FFG from making R. Obenauf's telephone ring. The Court also awards R. Obenauf $2,500.00 in attorney's fees.

FACTUAL BACKGROUND

1. R. Obenauf has worked as a part-time lecturer in the honors program at the University of New Mexico since August 2010, and he is a candidate for a Ph.D. in medieval and renaissance English literature. See Transcript of Hearing at 7:15–19 (taken April 13, 2011)(Treinen, R. Obenauf).2

2. In May of 2010, R. Obenauf returned to Albuquerque, New Mexico, from Chicago, Illinois—where he moved temporarily for graduate school. See Tr. at 8:1–9 (Treinen, Obenauf).

3. Upon his return, he was assigned a telephone number that previously belonged to a presumptive ne'er-do-well named Roger Neugebauer. Neugebauer was not a man to pay his bills. As a result, R. Obenauf received telephone calls from numerous debt collectors seeking to contact Neugebauer about his unpaid debts. See Tr. at 9:18–10:3 (Treinen, R. Obenauf).

4. When debt collectors called, R. Obenauf would send them a letter stating he was not the ne'er-do-well they sought, and they would usually “quit calling immediately.” Tr. at 10:7–9 (Treinen, R. Obenauf).

5. R. Obenauf first heard from FFG on August 27th, 2010, at 3:14 p.m., when FFG called him regarding a debt Neugebauer owed. See Tr. at 8:10–18 (Treinen, R. Obenauf). R. Obenauf recorded the call and played it at the hearing. See Tr. at 8:23–9:14 (Treinen, R. Obenauf).

6. In the course of the August 27th, 2010, 3:14 p.m. call, R. Obenauf asked for the caller's address, but the caller refused to provide it. R. Obenauf then asked to speak with a manager, hoping a manager would provide contact information. In response to his request, the caller placed R. Obenauf on hold and then disconnected the call. See Tr. at 8:18–22 (Treinen, R. Obenauf).

7. At 5:32 p.m. that same day, R. Obenauf received another call from FFG. When R. Obenauf answered the phone, he heard a recording stating that FFG was calling about a bad check and instructing him to contact 866–443–6985. See Tr. at 10:19–24 (Treinen, R. Obenauf). R. Obenauf attempted unsuccessfully to record

[785 F.Supp.2d 1192]

the second call; his “device did not function properly.” Tr. at 11:1 (Treinen, R. Obenauf).

8. R. Obenauf did not hear from FFG again until December 2010, when he found on his caller identification apparatus one call each from 915–317–1175 and 915–317–1181. See Tr. at 11:7–12 (Treinen, R. Obenauf). On December 20, 2001, he telephoned 915–317–1181, and discovered the telephone number belonged to FFG. See Tr. at 11:14–21 (Treinen, R. Obenauf).

9. Internet-sleuthing led R. Obenauf to two possible addresses for FFG: (i) 419 Stephanie St. in Henderson, Nevada 89014; and (ii) 1291 Galleria Dr. # 170 in Henderson, Nevada 89014. See Tr. at 11:22–12:23 (Treinen, R. Obenauf).

10. R. Obenauf sent a certified letter to each address, asking FFG to stop making his telephone ring. His letter stated:

Re: Notice to Cease Contact Regarding Debt for Roger Neugebauer

....

I am writing to you because I believe your agency has contacted me by telephone regarding another person's debt.

I assume you were calling not for me, but for someone else—the number 505–881–5245 has been assigned to me since May 2010, but, on the basis of numerous calls I have received from other debt collectors, I believe this number previously belonged to someone named Roger Neugebauer.

I dispute owing any debt on Mr. Neugebauer's account, and so I am requesting that you cease all communication to my phone or otherwise causing it to ring, as I am not the person you are looking for, but, rather, someone who assumed this other person's number when it was reassigned by the phone company.

If you persist in believing that Mr. Neugebauer is somehow connected with my address and/or phone number, please provide proof of your claim. Moreover, you should direct all future correspondence in writing as outlined in the Fair Debt Collection Practices Act (FDCPA) and to cease all communication with me by telephone, or I will be forced to take further legal action.

Letter from R. Obenauf to FFG at 1 (dated December 20, 2010), filed April 8, 2011 (Doc. 12–1)(emphasis original)(“Letter”). See Return Receipt at 1 (dated December 23, 2010), filed April 8, 2011 (Doc. 12–1, at 2); Tr. at 11:23–12:1 (Treinen, R. Obenauf).

11. The letter sent to 419 Stephanie St., Henderson, Nevada 89014 was returned undelivered. See Tr. at 12:18–20 (Treinen, R. Obenauf).

12. FFG received the letter sent to 1291 Galleria Dr. # 170, Henderson, Nevada 89014 on December 23, 2010. See Return Receipt at 1; United States Postal Track Confirm Receipt, filed April 8, 2011 (Doc. 12–2); Tr. at 12:24–13:3 (Treinen, R. Obenauf).

13. R. Obenauf paid $5.54 to send each certified letter, for a total cost of $11.08. See Tr. at 13:4–6 (Treinen, Obenauf).

14. After FFG received the letter on December 23, 2010, it called R. Obenauf one more time on December 27, 2010 at 12:42 p.m., from 915–317–1181. See Tr. at 13:7–17 (Treinen, R. Obenauf).

15. R. Obenauf did not speak with the caller on December 27, 2010. Instead, FFG left a message about a bad check, he stated that he called later to confirm that the call was from FFG,

[785 F.Supp.2d 1193]

suggesting that he found the telephone number on his caller identification apparatus. See Tr. at 13:22–25 (Treinen, R. Obenauf).

16. FFG's calls bothered R. Obenauf. On August 27, 2010, R. Obenauf was translating a medieval morality play in a difficult dialect, which required “total concentration” Tr. at 14:5–15:4 (Treinen, R. Obenauf). The August 27, 2010 telephone calls interrupted Obenauf's concentration, and distracted him from returning to his work for the balance of the day. See Tr. at 14:5–15:4 (R. Obenauf)(“I felt violated that day.”).

17. The calls “really disturbed” R. Obenauf, and “[j]ust pretty much ruined [his and his wife's] day whenever they called.” Tr. at 17:18–19:3 (Treinen, S. Obenauf)(“The phone calls would come in and he would have to get up and check the caller ID, and these calls in particular upset him because the numbers the numbers on the caller ID were spoofed.”).3

18. Most of the debt collectors immediately complied with R. Obenauf's requests to stop calling. A few did not. See Tr. at 10:7–9 (Treinen, R. Obenauf).

19. R. Obenauf obtained counsel and began filing lawsuits against the collection companies that continued calling him after he requested that they stop. See Obenauf v. CardWorks Servicing LLC, No. CIV 10–1004 (D.N.M.); Obenauf v. Enhanced Recovery Corporation, No. CIV 10–1179 (D.N.M.); Obenauf v. Northland Group, Inc., No. CIV 11–0083 (D.N.M.).

20. R. Obenauf's counsel incurred $4,883.25 in attorney's fees and costs prosecuting this case. See Tr. at 18:17–21; Declaration of Rob Treinen (dated April 12, 2011), Plaintiff's Ex. 6.

21. FFG is not licensed to collect debts in New Mexico. See Complaint ¶ 4, at 1–2. A search conducted under the New Mexico Financial Institutions Division (“NMFID”) official website—under the title “licensee search” accessed through http:// www. fid. state. nm. us/ fed/—indicates that FFG is not licensed in New Mexico.

PROCEDURAL BACKGROUND

On January 25, 2011, R. Obenauf filed his Complaint for Damages and Injunctive Relief. See Doc. 1 (“Complaint”). R. Obenauf alleges that FFG's actions violated the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 to 1692p (“FDCPA”), the New Mexico Unfair Practices Act, NMSA 1978, §§ 57–12–1 through 57–12–26 (“NMUPA”), and the New Mexico common law against tortious debt collection. On February 3, 2011, R. Obenauf personally served FFG, delivering a summons and a copy of the Complaint to Paula Engelbrecht, Director of Finance and Administration, who is lawfully designated as FFG's agent to receive service, at 1291 Galleria Dr., Ste 125 in Henderson, Nevada 89014.

FFG did not respond to the summons. On March 7, 2011, the Clerk of the United States District Court for the District of New Mexico filed his Entry of Default. See Doc. 10. That same day, R. Obenauf filed his Motion for Entry of Default Judgment, see Doc. 6, and his Motion for Evidentiary Damages Hearing, see Doc. 9. On March 14, 2010, the Court granted both motions. See Entry of Default and Order

[785 F.Supp.2d 1194]

Setting Hearing, filed March 14, 2010 (Doc. 11).

At the April 13, 2011 hearing, the Obenauf agreed that the Court could attempt to contact FFG to see if it wished to attend the hearing telephonically. Obenauf provided four telephone numbers for FFG. The Court called the first number, 915–317–1181, which connected to a customer service representative. Upon being told of the nature of the Court's call, the customer service representative asked to place the Court on hold to transfer the call to the corporate office, and the Court was then disconnected.

The Court next attempted to contact FFG at 915–317–1175. A woman named Susan answered and confirmed the Court had reached FFG's Nevada corporate office. The Court again...

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