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Mostiller v. Chase Asset Recovery Corp.

January 22, 2010

ANITA MOSTILLER, PLAINTIFF,
v.
CHASE ASSET RECOVERY CORP., DEFENDANT.



The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge

DECISION AND ORDER

INTRODUCTION

Plaintiff Anita Mostiller filed a complaint in this case on March 12, 2009, accusing defendant Chase Asset Recovery Corp. of violating the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692--1692p. Plaintiff served defendant with the summons and complaint, but defendant failed to answer or appear. On November 13, 2009, this Court granted plaintiff's motion for default judgment and ordered an evidentiary hearing as to damages. The hearing occurred on December 18, 2009, at which plaintiff testified and submitted an exhibit pertaining to defendant's conduct. Given the allegations that defendant is deemed to have admitted by default, and given the evidence that plaintiff submitted at the evidentiary hearing, the Court awards damages along with costs and fees as described below.

BACKGROUND

This case concerns defendant's conduct in attempting to collect on a loan used for a motorcycle purchase. The following facts come from the allegations in the complaint, which the Court will construe as true since defendant is in default, and from the testimony taken at the evidentiary hearing.

A few years ago, plaintiff co-signed a loan issued by HSBC Bank to allow her now-ex-boyfriend, Raphael Moscoso, to purchase a motorcycle. Sometime thereafter, both signatories to the loan agreement defaulted. HSBC Bank eventually repossessed the motorcycle and employed defendant to collect on the loan.

On or about December 2, 2008, defendant called plaintiff's home telephone number and left a message identifying itself as "Chase Asset Recovery." As indicated by the audio recording played and submitted at the hearing as Exhibit A, defendant left the following message:

This is for Anita. Um, my name is Frank with Chase Asset Recovery. Give me a call back as soon as possible, 716-818-8749, uh, the account for the motorcycle will be turned over to the county Monday, the eighth of December [2008] because Raphael cannot be located so we're gonna need to take action against you. So, I can't get you on the phone, so I'll try out your house when you call back, 716-818-8749, thank you.

Defendant left this message even though HSBC Bank had not decided to sue plaintiff, and even though defendant lacked either intent or authorization to sue plaintiff on its own. Based on the above message, plaintiff believed that defendant intended to commence a lawsuit against her. Additionally, plaintiff's fiancee Alex Hernandez overheard defendant's message. Plaintiff's fiancee was not aware of the debt in question prior to overhearing defendant's message.

On March 12, 2009, plaintiff filed the complaint in this case. The complaint contained a single claim that defendant committed multiple violations of the FDCPA. Specifically, plaintiff alleged the following:

Defendant violated 15 U.S.C. § 1692b(2) and 15 U.S.C. § 1692c(b) by disclosing the subject debt to Alex Hernandez.

Defendant violated 15 U.S.C. § 1692d and 15 U.S.C. § 1692d(2) by using language the natural consequence of which is to abuse the hearer when stating Defendant would send the account over to the county and take action against her if they did not hear from Plaintiff. Defendant violated 15 U.S.C. § 1692e, 15 U.S.C. § 1692e(2)(A), 15 U.S.C. § 1692e(5) and 15 U.S.C. § 1692e(10) by using false and misleading representations when stating Defendant would send the account over to the county and take action against Defendant if they did not hear from Plaintiff. (Dkt. No. 1 ¶ 20.)

According to the docket, plaintiff served defendant on April 6, 2009. Defendant never answered the complaint or otherwise appeared. Accordingly, plaintiff requested an entry of default on August 10, 2009. The Clerk of the Court filed an entry of default on August 11, 2009. On September 16, 2009, plaintiff filed a motion for default judgment as to liability and for a hearing as to damages. In the papers in support of the motion for default judgment, counsel for plaintiff set forth that "Defendant['s] in-house counsel, Frank Corsi, has been apprised of these proceedings and was provided an extra copy of the summons and complaint on August 14, 2009, but has chosen not to appear or otherwise defend this action. This office has not heard from Defendant or their counsel." (Dkt. No. 7-2 at 1.) The Court held oral argument on the motion for default judgment on November 13, 2009. The Court granted the motion orally and set a date for a hearing.

On December 18, 2009, the Court held the evidentiary hearing. Plaintiff, who is 46 years old, testified at the hearing. In addition to testifying to the background narrative that the Court summarized above, plaintiff recounted that her fiancee became upset upon overhearing the message that defendant left. Plaintiff concluded with testimony to support the claim in her complaint that "as a result of the Defendant's FDCPA violations as ...


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