Peterson-Hooks v. First Integral Recovery, LLC

• Decision Date: 24 May 2013
• Docket Number: Civil Action No. 12-cv-01019-PAB-BNB
• Parties: TELITHA PETERSON-HOOKS, Plaintiff, v. FIRST INTEGRAL RECOVERY, LLC, Defendant.
• Court: U.S. District Court — District of Colorado

TELITHA PETERSON-HOOKS, Plaintiff,

v.FIRST INTEGRAL RECOVERY, LLC, Defendant.

Civil Action No. 12-cv-01019-PAB-BNB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

DATED May 24, 2013

Judge Philip A. Brimmer

ORDER

This matter is before the Court on the Motion for Default Judgment [Docket No. 26] filed by plaintiff Telitha Peterson-Hooks. The Court has jurisdiction pursuant to 28 U.S.C. § 1331.

I. BACKGROUND

On April 16, 2012, plaintiff filed this case against defendant First Integral Recovery, LLC, alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), see 15 U.S.C. § 1692 et seq., and the Colorado Fair Debt Collection Practices Act ("CFDCPA"), Colo. Rev. Stat. § 12-14-101 et seq. In her complaint, plaintiff alleges that she is a natural person who is obligated to pay a debt arising out of a transaction for personal, family, or household goods. Docket No. 1 at 2, ¶¶ 10-12. She avers that defendant is a debt collector as that term is defined in the aforementioned statutes. Id. at 2, ¶¶ 7-8. She further claims that defendant, through its collectors "Mr. Tatty" and "Mr. Carter," harassed her by placing numerous telephone calls to her work and cellularphones, sometimes calling her three or more times in a day and more than twenty times in a month. Id. at 3, ¶¶ 15-17. Additionally, plaintiff claims that defendant falsely represented itself as the Internal Revenue Service ("IRS") and told plaintiff's co-workers that the calls were from a "legal department," suggesting she had legal trouble. Id. ¶¶ 18, 22. Moreover, Mr. Carter falsely represented that defendant would initiate "legal proceedings" against plaintiff and she would be subject to criminal charges for "check fraud" if she did not make immediate payments on her debt. Id. at 4, ¶ 31. Plaintiff asserts that defendant has never registered with the Colorado Attorney General's Office ("AG") as a debt collector and despite all its threats to do so, has not initiated a civil or criminal case against her. Id. ¶ 33. Defendant has not responded to the complaint or otherwise appeared before the Court in this case.

On September 18, 2012, plaintiff moved for entry of default [Docket No. 22] pursuant to Federal Rule of Civil Procedure 55(a). The Clerk of the Court entered default against defendant the following day. Docket No. 24. On November 8, 2012, plaintiff moved for entry of default judgment. Docket No. 26. Plaintiff seeks $8,347.00 in damages, comprising of $2,000.00 in statutory damages for violations of the FDCPA and the CFDCPA, $5,952.00 in attorney's fees, and $395.00 in court costs. Docket No. 26 at 7-8. Defendant has not responded to plaintiff's motion for default judgment.

II. DISCUSSION

A. Default Judgment

In order to obtain a judgment by default, a party must follow the two-step process described in Federal Rule of Civil Procedure 55. First, she must seek an entry ofdefault from the Clerk of the Court under Rule 55(a). Second, after default has been entered by the Clerk, the party must seek default judgment according to the strictures of Rule 55(b). See Williams v. Smithson, 1995 WL 365988, at *1 (10th Cir. June 20, 1995) (citing Meehan v. Snow, 652 F.2d 274, 276 (2d Cir. 1981)).

The decision to enter default judgment is "'committed to the district court's sound discretion.'" Olcott v. Del. Flood Co., 327 F.3d 1115, 1124 (10th Cir. 2003) (citation omitted). In exercising that discretion, the Court considers that "[s]trong policies favor resolution of disputes on their merits." Ruplinger v. Rains, 946 F.2d 731, 732 (10th Cir. 1991) (quotation marks and citations omitted). "The default judgment must normally be viewed as available only when the adversary process has been halted because of an essentially unresponsive party." Id. It serves to protect a plaintiff against "interminable delay and continued uncertainty as to his rights." Id. at 733. When "ruling on a motion for default judgment, the court may rely on detailed affidavits or documentary evidence to determine the appropriate sum for the default judgment." Seme v. E & H Prof'l Sec. Co., Inc., No. 08-cv-01569-RPM-KMT, 2010 WL 1553786, at *11 (D. Colo. Mar. 19, 2010).

A party may not simply sit out the litigation without consequence. See Cessna Fin. Corp. v. Bielenberg Masonry Contracting, Inc., 715 F.2d 1442, 1444-45 (10th Cir. 1983) ("[A] workable system of justice requires that litigants not be free to appear at their pleasure. We therefore must hold parties and their attorneys to a reasonably high standard of diligence in observing the courts' rules of procedure. The threat of judgment by default serves as an incentive to meet this standard."). One suchconsequence is that, upon the entry of default against defendants, the well-pleaded allegations in the complaint are deemed admitted. See Olcott, 327 F.3d at 1125; see also 10A CHARLES WRIGHT, ARTHUR MILLER & MARY KANE, FED. PRAC. & PROC. § 2688 (3d ed. 2010).

"Even after default, however, it remains for the court to consider whether the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit mere conclusions of law." 10A WRIGHT & MILLER § 2688, at 63. A court need not accept conclusory allegations. Moffett v. Halliburton Energy Servs., Inc., 291 F.3d 1227, 1232 (10th Cir. 2002). Although "[s]pecific facts are not necessary" in order to state a claim, Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)), the well-pleaded facts must "permit the court to infer more than the mere possibility of misconduct." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal quotation marks and alteration marks omitted). Thus, even though modern rules of pleading are somewhat forgiving, "a complaint still must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory." Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008) (quotation marks and citation omitted).

In this case, the Clerk of Court entered default against defendant on September 19, 2012 [Docket No. 24]. Accordingly, the Court accepts the well-pleaded facts in plaintiff's complaint as true. Specifically, the Court accepts as true plaintiff's allegations that (1) she is a consumer and defendant is a debt collector as those terms are defined by the FDCPA and the CFDCPA, Docket No. 1 at 2, ¶¶ 5-12; (2) defendant contactedplaintiff between October 2011 and March 2012 in an attempt to collect on her debt, id. at ¶ 13; (3) defendant placed numerous harassing phone calls to plaintiff at her home and place of work, id. at 3, ¶¶ 15-17; (4) in the course of attempting to collect her debt, defendant told plaintiff that it was the IRS or a "legal department," id. ¶¶ 18-22, and that it would file criminal charges against her for "check fraud" if she did not make immediate payments, id. at 4, ¶ 31; and (5) defendant never registered with the Colorado AG as a debt collector. Id. at ¶ 28. Taking these allegations as true, the Court next determines whether these facts "constitute a legitimate cause of action" entitling plaintiff to default judgment. 10A WRIGHT & MILLER § 2688, at 63.

B. FDCPA Violations

Congress enacted the FDCPA "to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses." 15 U.S.C. § 1692(e). Plaintiff claims that defendant violated 15 U.S.C. §§ 1692b, 1692c, 1692d, 1692e, and 16292f. Plaintiff seeks $1,000.00 in statutory damages for defendant's violations.¹ Docket No. 26 at 4; Docket No. 1 at 14.

Plaintiff brings a claim pursuant to § 1692b(2), which prohibits debt collectors "stat[ing] that such consumer owes any debt" when communicating with any person other than the consumer for the purpose of acquiring location information about the consumer. 15 U.S.C. § 1692b(2); see also Colo. Rev. Stat. §§ 12-14-104(1)(b). Underthe FDCPA, "location information" is defined as "a consumer's place of abode and his telephone number at such place, or his place of employment." 15 U.S.C. § 1692a(7); Colo. Rev. Stat. § 12-14-103(9). Because plaintiff does not allege that defendant's communications with her co-workers were for the "purpose of acquiring location information," she does not clearly state a violation of § 1692b(2). See Ayala v. Creditors Specialty Serv., Inc., 2012 WL 5198482, at *5 (E.D. Cal. Oct. 19, 2012) (noting that communication must be to "acquire location information").

Next, plaintiff alleges that defendant violated 15 U.S.C. §§ 1692c(a)(2), (b), and (c). Docket No. 1 at 6. Plaintiff asserts that defendant contacted her about the debt even after defendant received a cease and desist letter stating that plaintiff had retained an attorney. 15 U.S.C. §§ 1692c(a)(2), (c). Taking plaintiff's well pleaded facts as true, the Court finds that plaintiff has established violations of 15 U.S.C. §§ 1692c(a)(2), (c). However, plaintiff does not establish a violation of § 1692c(b) because she does not allege that defendant discussed her debt with her employer, but rather states that she had to discuss her debt problems with her employer because of defendant's persistent phone calls. Docket No. 1 at 3, ¶¶ 22-25.

Plaintiff alleges that defendant violated 15 U.S.C. §§ 1692d, (5). Docket No. 1 at 6-7. Plaintiff asserts that defendant sometimes called her up to five times a day and up to twenty times in a month in order to harass her until she paid the debt. See 15 U.S.C.§§ 1692d,² (5).³ Taking plaintiff's well pleaded facts as true, the Court finds that plaintiff has established violations of 15 U.S.C. §§ 1692d, (5).

Plaintiff alleges that defendant violated 15 U.S.C. §§ 1692e, (1), (5), (7), and (10). Docket No. 1 at 7-9. Plaintiff claims that defendant falsely...