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Shockley v. Portfolio Recovery Associates, LLC

United States District Court, E.D. Kentucky, Central Division, Lexington

November 1, 2018

CHARLES SHOCKLEY, Plaintiff,
v.
PORTFOLIO RECOVERY ASSOICATES, LLC, et. al. Defendants.

          MEMORANDUM OPINION AND ORDER

          Joseph M. Hood, Senior U.S. District Judge

         This matter is before the Court upon Plaintiff Charles Shockley's motion for default judgment against Defendant United Adjustment Corporation (“UAC”). [DE 15]. Plaintiff has demonstrated that Defendant is liable for violations of the Fair Debt Collection Practices Act (“FDCPA”) and the Fair Credit Reporting Act (“FCRA”), but Plaintiff has not adequately established the appropriate amount of statutory damages. As a result, Plaintiff's motion for default judgment is GRANTED IN PART and DENIED IN PART.

         I. Procedural History

         On January 10, 2018, Shockley filed the Complaint in this matter against Defendants Portfolio Recovery Associates, LLC and UAC alleging violations of the FDCPA and the FCRA. [DE 1]. On February 8, 2018, Shockley moved to dismiss Defendant Portfolio Recovery Associates but wished to continue this action against UAC. [DE 7]. Plaintiff's Motion to Dismiss Portfolio Recovery Associates was granted on February 13, 2018. [DE 8].

         Subsequently, Shockley moved for entry of default against UAC. [DE 11]. The Clerk entered default because the record indicated that a Summons and Copy of the Complaint was served upon UAC and UAC had failed to plead or otherwise defend the action. [DE 13].

         Now, Shockley moves for default judgment pursuant to Fed.R.Civ.P. 55(b)(1) or, in the alternative, pursuant to Fed.R.Civ.P. 55(b)(2). [DE 15]. Shockley is only pursuing statutory damages, costs of the action, and attorneys' fees.

         II. Standard for Default Judgment

         In a motion for default under Rule 55, “the well pleaded factual allegations in the Complaint, except those relating to damages, are taken as true.” Ford Motor Co. v. Cross, 441 F.Supp.2d 837, 847 (E.D. Mich. 2006) (citing Thomson v. Wooster, 114 U.S. 104 (1885); Antoine v. Atlas Turner, Inc., 66 F.3d 105, 110-11 (6th Cir. 1995)). If the allegations in the Complaint are sufficient to support a finding that the Defendant violated the provisions of the FDCPA or FCRA, judgment should be entered for the Plaintiff.

         A default judgment may be entered either by the Clerk or by the Court. The Clerk may enter default judgment “[i]f the plaintiff's claim is for a sum certain or a sum that can be made certain by computation.” Fed.R.Civ.P. 55(b)(1). Alternatively, “[i]n all other cases, the party must apply to the court for a default judgment.” Fed.R.Civ.P. 55(b)(2).

         Here, Shockley's motion for default judgment is made pursuant to Fed.R.Civ.P. 55(b)(2). The maximum amount of statutory damages that may be recovered under the FDCPA and the FCRA is $1, 000 but the actual amount of statutory damages to which the plaintiff is entitled is within the discretion of the court. 15 U.S.C. § 1692(a)(2)(A); 15 U.S.C. § 1681(a)(1)(A). Thus, where statutory language sets out a minimum and maximum amount for an award of statutory damages, the motion for default must be directed to the court. See, e.g., Charvat v. NMP, LLC, No. 2:09-CV-209, 2012 WL 2577489, at *2 (S.D. Ohio July 3, 2012).

         Additionally, the Court may conduct an evidentiary hearing on damages or to establish the truth of any allegation by evidence. Fed.R.Civ.P. 55(b)(2). Damages that are unliquidated or not susceptible to mathematical computation must be proven by the Plaintiff. Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). “A party who has been found liable by default judgment ‘still has the opportunity to respond to the issue of damages.'” New London Tobacco Market, Inc. v. Kentucky Fuel Corp., No. 12-CV-91-GFVT, 2017 WL 1227926, at *2 (E.D. Ky. Mar. 31, 2017) (citing Antoine, 66 F.3d at 110). “Ordinarily, the District Court must hold an evidentiary proceeding in which the defendant has the opportunity to contest the amount of damages.” Antoine v. Atlas Turner, Inc., 66 F.3d 105, 110-11 (6th Cir. 1995) (quoting Greyhound, 973 F.2d at 158).

         III. Analysis

         A. Default Judgment Under the FDCPA

         The FDCPA prohibits a wide range of specific conduct, but it also prohibits any harassing, unfair, or deceptive debt collection practices. S. Rep. No. 95-382, at 4, 1977 U.S.C.C.A.N. 1695, 1698; see generally 15 U.S.C. §§ 1692d-1692f. As a result, the Act is “extraordinarily broad.” Barany-Snyder v. Weiner, 539 F.3d 327, 333 (6th Cir. 2008) (quoting Frey v. Gangwish, 970 F.2d 1516, 1521 (6th Cir. 1992)). “To determine whether conduct fits within the broad scope of the FDCPA, the conduct is viewed through the eyes of the ‘least sophisticated consumer.'” Currier v. First Resolution Inv. Corp., 762 F.3d 529, 533 (6th Cir. 2014) (quoting Barany-Snyder, 539 F.3d at 333).

         (1) Liability

         15 U.S.C. § 1692e(8) prohibits “[c]ommunicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed.” To establish a violation under § 1692e(8):

1) The plaintiff must be a “consumer” as defined by the FDCPA;
2) The “debt” must arise out of transactions that are “primarily for personal, family, or ...

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