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DONAHUE v. NFS

December 30, 1991

DARLENE M. DONAHUE, PLAINTIFF,
v.
NFS, INC. D/B/A NATIONAL FINANCIAL SERVICES, DEFENDANT. DARLENE M. DONAHUE, PLAINTIFF, V. N. FRANK LANOCHA, ESQUIRE, DEFENDANT.



The opinion of the court was delivered by: Skretny, District Judge.

DECISION/ORDER

INTRODUCTION

Now before this Court are the motions of the plaintiff Darlene Donahue ("plaintiff") for a default judgment, pursuant to Fed. R.Civ.P. 55(b) in each of the above-captioned cases. The defendants in each case, NFS Inc. d/b/a/National Financial Services ("NFS") (CIV-90-1185S) and N. Frank Lanocha, Esq. ("Lanocha") (CIV-91-51S) (collectively the "defendants") having failed to file an Answer or otherwise move for dismissal of the Complaint, failed to appear in these actions and, similarly, do not respond to the plaintiff's motions.

Because both lawsuits involve the same plaintiff, similar claims and, more importantly, conduct by both defendants which plaintiff alleges caused her physical and emotional damages, this Court, sua sponte, will address both cases in this single Decision/Order.

In each case, the plaintiff alleges that the defendants violated various provisions of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. According to the Complaints, the alleged violations stem from three debt collection notices ("the Notices") mailed by the defendants — one by NFS and two by Lanocha — to the plaintiff which demand payment of a single debt of $18.94 allegedly owed by the plaintiff to American Family Publisher. (CIV-90-1185S, Plaintiff's Affidavit, exh. A).

In her Complaints and via her motions, the plaintiff seeks actual and additional damages and attorneys' fees and costs, all pursuant to the FDCPA. This Court has jurisdiction of these lawsuits pursuant to 15 U.S.C. § 1692k(d).

In support of her motion in CIV-90-1185S, the plaintiff has filed her affidavit, a legal memorandum, and the affidavits of plaintiff's counsel Ruth Wiseman, Esq. In support of her motion in CIV-91-51S, the plaintiff has filed an affidavit of plaintiff's counsel, also Ruth Wiseman, Esq. Additionally, on October 17, 1991, this Court held a hearing with respect to the issue of plaintiff's actual damages stemming from her receipt of the Notices.

Conclusion: For the reasons set forth below, this Court grants the plaintiff's motions for default judgment in CIV-90-1185S and CIV-91-51S and awards actual and additional damages, attorneys' fees and costs in each case, as provided below.

DISCUSSION

I. Procedural History

A. CIV-90-1185S

On November 16, 1990, the plaintiff filed her Complaint. On January 2, 1991, the plaintiff served the Summons and Complaint on NFS. (CIV-90-1185S, Wiseman Affidavit, March 15, 1991, exh. A).

On March 18, 1991, the plaintiff, having received no response from NFS, filed a motion for an entry of default with the Clerk of the Court. On March 20, 1991, the Clerk of the Court filed an Entry of Default in the case. Subsequently, on June 26, 1991, the plaintiff filed the present motion seeking a Default Judgment for actual and additional damages, attorneys' fees and costs.

Although the plaintiff submitted an affidavit with respect to her claim to actual damages, finding the affidavit inconclusive on the plaintiff's entitlement to actual damages, this Court further held a hearing on October 17, 1991, at which the plaintiff, and no other witnesses, testified.

B. CIV-91-51S

On January 28, 1991, the plaintiff filed her Complaint. On March 13, 1991, the plaintiff served the Summons and Complaint on Lanocha. (CIV-91-51S, Wiseman Affidavit, April 9, 1991, exh. A).

On April 10, 1991, the plaintiff, having received no response from Lanocha, filed a motion for an entry of default with the Clerk of the Court. On April 16, 1991, the clerk of the Court filed an Entry of Default in the case. Subsequently, on August 16, 1991, the plaintiff filed the present motion seeking a Default Judgment for actual and additional damages, attorneys' fees and costs.

The Hon. Richard J. Arcara originally presided over CIV-91-51S. Due to the similarities between CIV-91-51S and CIV-90-1185S, on December 10, 1991, Judge Arcara transferred CIV-91-51S to this Court.

Recognizing that CIV-91-51S remains not only factually similar to CIV-90-1185S, but that plaintiff's claim to actual damages stems from the conduct of NFS and Lanocha, this Court inquired of plaintiff, through her counsel Wiseman, whether the hearing testimony already received in CIV-90-1185S could also be applied to CIV-91-51S. After consulting with counsel, plaintiff agreed to apply her hearing testimony to both lawsuits.

II. Plaintiff's Entitlement To "Additional" Damages

A. CIV-90-1185S

In CIV-90-1185S the plaintiff alleges five separate violations by NFS of four provisions of the FDCPA, all stemming from a single notice sent to the plaintiff.*fn1 (CIV-90-1185S, Motion For Default Judgment, exh B). Specifically, the plaintiff alleges that NFS violated: 1) 15 U.S.C. § 1692g (insufficient debt validation notification due to size and color of type and a misleading response date)*fn2; 2) 15 U.S.C. § 1692e(11) (insufficient debt collection disclosure due to size of type); 3) 15 U.S.C. § 1692e(5) (threat to take ...


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