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Cole v. Truelogic Financial Corp.

January 31, 2009

RICHARD COLE, PLAINTIFF,
v.
TRUELOGIC FINANCIAL CORP., DEFENDANT.



The opinion of the court was delivered by: William M. Skretny United States District Judge

DECISION AND ORDER

I. INTRODUCTION

On June 15, 2007, Plaintiff Richard Cole commenced this action pursuant to the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., in connection with Defendant Truelogic Financial Corporation's efforts to collect payment fora Target-RNB debt. (Docket No. 1). Defendant failed to plead or otherwise respond to this action. Consequently, the Clerk of the Court filed an Entry of Default as to Defendant on October 26, 2007. (Docket No. 4).

Presently before this Court is Plaintiff's Motion for Default Judgment and Motion for Damages and Attorney's Fees and Costs. (Docket No. 5). For the reasons stated below, Plaintiff's motion is granted, and Plaintiff is entitled to judgment in the amount of $4,165.

II. BACKGROUND

Sometime in 1996, an individual, other than Plaintiff, incurred and defaulted on a debt to Target-RNB, located in Minneapolis, Minnesota. (Docket No. 10-4, Cole Affidavit, ¶ 3). After the individual defaulted on the debt, Target-RNB employed Defendant to attempt to collect the debt. (Cole Affidavit, ¶ 5). On or about May 22, 2007, an individual from Defendant's office, called and spoke to Plaintiff by telephone. (Cole Affidavit, ¶ 6).

Plaintiff informed the individual that the debt did not belong to him and that he refused to pay it. (Cole Affidavit, ¶ 6). Whereupon, the individual stated to Plaintiff that he could legally, and would put, the debt on Plaintiff's credit report. (Cole Affidavit, ¶ 6). Concerned that his credit report would be "tarnished," Plaintiff alleges that he suffered "emotional distress, upset, embarrassment, and humiliation." (Cole Affidavit, ¶ 8).

III. DISCUSSION

A. Entry of Default Judgment against Defendant

Before obtaining default judgment, a party must first secure a Clerk's Entry of Default by demonstrating, by affidavit or otherwise, that the opposing party is in default. FED. R. CIV. P. 55(a). Once default has been entered, the allegations of the Complaint that establish the defendant's liability are accepted as true, except for those relating to the amount of damages.Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992).

Prior to entering default judgment, the court must determine whether the facts alleged in the Complaint are sufficient to state a claim for relief as to each cause of action for which the plaintiff seeks default judgment. Further, where the damages sought are not for a sum certain, the court must determine the propriety and amount of default judgment. FED. R. CIV. P. 55(b)(2).

B. Statutory Violations

The FDCPA protects consumers from unfair business practices. Specifically, under the FDCPA, "[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692e.

Accepting Plaintiff's allegations as true, Defendant violated the FDCPA by falsely representing that Defendant could legally, and would cause, the debt to be placed on Plaintiff's credit report. See 15 U.S.C. § 1692e(5) (threat to take any action that cannot legally be taken or that is not intended to be taken); see also 15 U.S.C. §1681c (adverse ...


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