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Annis v. Eastern Asset Management

March 16, 2010

LAURA E. ANNIS, PHYLLIS ANNIS, AND ROSS A. ANNIS, PLAINTIFFS,
v.
EASTERN ASSET MANAGEMENT, LLC, DEFENDANT.



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

DECISION AND ORDER

I. INTRODUCTION

On June 20, 2008, Plaintiffs filed a complaint alleging various violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692, et seq. Defendant failed to appear and defend this action, which resulted in the Clerk of the Court entering default on May 15, 2009. Presently before this Court is Plaintiffs' Motion for Default Judgment pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure.*fn1 For the following reasons, Plaintiffs' motion is granted.

II. BACKGROUND

Plaintiffs Ross and Phyllis Annis are a married couple and the parents of Plaintiff Laura Annis. (Complaint, Docket No. 1, ¶¶ 5, 6.) Defendant Eastern Asset Management, LLC, is a "debt collector" within the meaning of the FDCPA. (Id. at ¶ 7.)

Laura incurred a debt to Clout Financial Services, which she defaulted on. (Id. at ¶¶ 11, 13.) Defendant purchased the debt in January 2008 and immediately began efforts to collect it. (Id. at ¶¶ 14, 15.) Specifically, Defendant telephoned Laura almost every day for four months. (Id. at ¶ 15; Rutkowsky Affidavit,*fn2 Docket No. 15-5, ¶ 6.) Defendant also telephoned Ross and Phyllis almost every day for four months.*fn3 (Complaint at ¶ 16; Phyllis Annis Affidavit, Docket No. 15-6, ¶¶ 4, 5; Ross Annis Affidavit, Docket No. ¶¶ 4-5.)

In January 2008, Defendant left a message on Ross and Phyllis's answering machine stating that the call was from "The Law Offices of John Nicoli, Process Serving and Summons Division," and that court dates had been scheduled for Laura and a number had been assigned to her file. (Complaint at ¶¶ 18, 19.) The message concluded as follows: "Please make it a point to reach us as soon as possible. It's a very urgent matter." (Id. at ¶ 19.) In all subsequent calls to Ross and Phyllis, Defendant identified itself as "The Law Offices of Attorney John Nicoli." (Id. at ¶ 17.)

Ross called the telephone number left on his answering machine and spoke to a representative of Defendant. (Id. at ¶ 20.) Ross told the representative that Laura was his daughter. (Id. at ¶ 20.) The representative then told Ross that there was a case against Laura "with a request to file for a civil judgment against [Laura] in Queens County from a client of [Defendant's] regarding a breach of contract." (Id. at ¶ 20.) Defendant's representative discussed Laura's debt with Ross, despite knowing that it was not Ross's debt, and without obtaining permission from Laura to discuss her debt with a third party. (Id. at ¶ 21.) The representative also repeatedly referred to a "judgment" that would be filed against Laura if payment of the debt was not arranged. (Id. at ¶ 22.) The representative then solicited payment of the debt by Ross with the following statements:

* There was "a filing date of Thursday to forward this on for the preliminary paperwork to be issued;"

* That Defendant was preparing "to ship the matter off to the County as of the 31st of [January];"

* That the court dates Laura already "missed" would be "wiped out" if Ross would arrange to pay the debt;

* That Defendant wanted to ensure that Laura would not miss any future court dates.

(Id. at ¶ 22.)

Defendant never filed a lawsuit against Laura after January 31, 2008, as the representative advised Ross it would. (Id. at ¶ 23.)

In February 2008, Defendant telephoned Laura on her cellular phone and left a message indicating that the call was from the "Process Serving and Summons Division at Attorney John Nicoli's Office," and that "as of February 20, 2008, we will be requesting a 'summons-complaint' subpoena be issued and served on [you], whether at your home or place of employment, whichever is more convenient for appropriate county authority out of Queens County." (Id. at ¶ 24.) The caller advised that to stop the legal action, Laura must immediately return the call. (Id. at ¶ 24.) The caller then stated:

Basically, Laura, your failure to respond to this is going to result in you having to appear in Court, undergo a judgment filing. From that point forward, our client may take forcible recovery such as wage garnishment, lien filing against any property, or issuing a freeze against the use of any open checking or savings account until your legal obligation to this law firm has been resolved. (Id. at ¶ 24.)

Defendant telephoned Laura twice more before February 20, 2008, leaving similar messages threatening legal action and advising that the matter could be resolved only by an immediate return telephone call. (Id. at ¶¶ 25, 26.) But Defendant never initiated a lawsuit against Laura after February 20, 2008, as indicated in the previous messages. (Id. at ¶ 27.)

In March 2008, Defendant again telephoned Laura's cellular phone and left her a message. (Id. at ¶ 28.) This time the caller indicated that the call was from Eastern Asset Management and that she had been trying to contact Laura for the past 90 days. (Id. at ¶ 28.) The caller directed Laura to return the call or have her attorney return the call before March 21, 2008, to avoid having the case go to court. (Id. at ¶ 28.) Defendant made four more similar calls warning that action had to be taken before March 21, 2008. (Id. at ¶¶ 29, 30, 31, 32.) Defendant never filed a lawsuit against Laura on or after March 21, 2008. (Id. at ¶ 33.)

Defendant has continued to telephone each plaintiff, threatening to pursue legal action against Laura. (Id. at ¶ 35.)

III. DISCUSSION

A. Default Judgment ...


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