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Nissa Fajer v. Kaufman

January 28, 2011

NISSA FAJER, PLAINTIFF,
v.
KAUFMAN, BURNS & ASSOCIATES, DEFENDANT.



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

DECISION AND ORDER

I. INTRODUCTION

On August 14, 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 February 12, 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 Nissa Fajer incurred a consumer debt that Defendant Kaufman, Burns & Associates ("Kaufman") attempted to collect. (Complaint, Docket No. 1, ¶¶ 3, 5.) Kaufman is a "debt collector" within the meaning of the FDCPA. (Id. at ¶ 5.)

The factual allegations contained in Plaintiff's complaint are sparse. Fajer alleges that an agent from Kaufman continuously called her to demand payment of the debt, but never properly identified himself to Fajer as a debt collector and, instead, represented himself as an attorney. (Id. at ¶¶ 11, 12, 13.) Fajer also alleges that Kaufman threatened her with criminal charges and legal action if she did not pay the debt, and, further, told a third party that Kaufman representatives would "come after" Fajer for payment. (Id. at ¶¶ 14, 15, 17.) Fajer asserts that she received collection calls from Kaufman at her workplace, despite having told Kaufman not to call her there. (Id. at ¶ 16.) Fajer further asserts that Kaufman sought payment of an amount of money higher than the actual amount of her debt. (Id. at ¶ 18.)

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

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

Kaufman's repeated calls to Fajer 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). Here, Fajer makes a conclusory allegation that Kaufman called her "constantly and continuously" without alleging the number of calls that she in fact received from Kaufman. (Complaint, ¶ 11.) It is clear, however, that Kaufman called her more than once, thereby establishing a violation of this section.

Kaufman further violated the FDCPA by making multiple false representations to Fajer. Section 1692e prohibits debt collectors from using false, deceptive, or misleading representations to collect a debt. The statute provides as follows:

A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the ...


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