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Taylor v. Morgan Stone and Associates

April 30, 2010

WANDA TAYLOR, PLAINTIFFS,
v.
MORGAN STONE AND ASSOCIATES, 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 September 21, 2009, Plaintiff 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 December 29, 2009. Presently before this Court is Plaintiff's Motion for Default Judgment pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure.*fn1 For the following reasons, Plaintiff's motion is granted.

II. BACKGROUND

Plaintiff Wanda Taylor incurred a consumer debt that Defendant Morgan Stone and Associates, LLC ("Morgan Stone"), attempted to collect. (Complaint, Docket No. 1, ¶¶ 3, 6.) Morgan Stone is a "debt collector" within the meaning of the FDCPA. (Id. at ¶ 5.) Taylor asserts that Morgan Stone never sent her a debt validation notice, yet continuously called her cellular phone five to six times per day for more than two months, seeking and demanding repayment of the consumer debt. (Id. at ¶¶ 11-13; Declaration of Wanda Taylor ("Taylor Declaration"), Docket 7-2, Exhibit 1, ¶¶ 2, 3.) Morgan Stone threatened Taylor with legal action and arrest if she did not pay the debt and specifically told her that "this matter will be forwarded to the district attorney in our county pertaining to docket number FPY 1206" if she did not make an immediate payment. (Id. at ¶¶ 14, 15; Taylor Declaration, ¶¶ 4, 5.) Other times, Morgan Stone would hang up when Taylor or her voicemail answered. (Id. at ¶ 17.) As far as Taylor is aware, Morgan Stone never initiated legal proceedings against her. (Taylor Declaration, ¶ 6.) Morgan Stone also contacted Taylor's sister and advised her that it was trying to contact Wanda "about a debt." (Id. at ¶ 16; Taylor Declaration, ¶ 7.)

III. DISCUSSION

A. Default Judgment Standard

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. See 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).

In considering whether to enter 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 the default judgment. See FED. R. CIV. P. 55(b)(2). Damages must be established by proof, unless the damages are liquidated or "susceptible of mathematical computation." Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974). All reasonable inferences from the evidence presented are drawn in the moving party's favor. See Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981).

B. Liability

Taylor asserts that Morgan Stone's conduct violates a number of provisions in the FDCPA. Based on the undisputed facts taken as true, this Court concurs.

Morgan Stone's repeated calls to Taylor violated § 1692d, which makes it generally unlawful for a debt collector to engage in any conduct "the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt." As a specific example, the statute prohibits "causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number." 15 U.S.C. § 1692d (5).

Morgan Stone also violated the FDCPA by disclosing Taylor's debt to her sister. Section 1692b limits a debt collector's contact with third parties to acquiring location information. And except as provided in § 1692b, § 1692c (b) limits the individuals a debt collector may contact to the consumer, his attorney, a consumer reporting agency, the creditor, the creditor's attorney, and the debt collector's attorney.

Morgan Stone further violated the FDCPA by falsely threatening to arrest and commence legal proceedings against Taylor. Section 1692e prohibits debt collectors from using false, deceptive, or misleading ...


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