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Proctor v. PMR Law Group

October 21, 2010

ANGELA PROCTOR, PLAINTIFF,
v.
PMR LAW GROUP A/K/A PROFILE RECOVERY GROUP, LLC, DEFENDANT.



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

DECISION AND ORDER

I. INTRODUCTION

On November 30, 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 April 15, 2010. 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 Angela Proctor incurred a consumer debt that Defendant PMR Law Group, a/k/a Profile Recovery, LLC ("PMR Law Group"), attempted to collect. (Complaint, Docket No. 1, ¶¶ 3, 5, 6.) PMR Law Group is a "debt collector" within the meaning of the FDCPA. (Id. at ¶ 5.)

Proctor asserts that PMR Law Group never sent her a debt validation notice, yet continuously called her, seeking and demanding repayment of the consumer debt. (Id. at ¶¶ 11, 12, 16.) PMR Law Group would call Proctor from one of two telephone numbers, but would not properly identify itself to her as a debt collector. (Id. at ¶¶ 11, 12.) Proctor asserts that she received collection calls from PMR Law Group at her workplace, despite having told PMR Law Group not to call her there, and further, that PMR Law Group threatened Proctor with legal action and wage garnishment if she did not pay the debt. (Id. at ¶¶ 13--15.)

III. DISCUSSION

A. Default Judgment Standard

Before obtaining default judgment, a party must first secure the 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).

Here, PMR Law Group is deemed to admit the allegations in the complaint due to its default. Accepting the uncontested facts as true, this Court must now determine whether PMR Law Group violated the FDCPA so as to merit granting the relief sought-statutory damages, reasonable attorney's fees, and costs. (Plaintiff's Motion for Default Judgment, Docket No. 5, p. 1.)

B. Liability

1. Claims under 15 U.S.C. § 1692c (a)(3)

Section 1692c (a)(3) prohibits debt collectors from communicating with a consumer regarding debt collection "at the consumer's place of employment if the debt collector knows or has reason to know that the consumer's employer prohibits the consumer from receiving such communication." See 15 U.S.C. § 1692c (a)(3).

In her complaint, Proctor recites the statutory language to allege that PMR Law Group violated 15 U.S.C. § 1692c (a)(3). (Complaint, ¶ 17 (a).) While Proctor asserts that she told PMR Law Group not to call her at work, she makes no factual allegation that PMR Law Group knew or had reason to know that Proctor's employer prohibits such telephone calls to support a § 1692c ...


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