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Mary A. Twarozek v. Midpoint Resolution Group

August 4, 2011

MARY A. TWAROZEK, PLAINTIFF,
v.
MIDPOINT RESOLUTION 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 August 20, 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 January 25, 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 Mary A. Twarozek incurred a credit card debt to Union-Plus Credit Card. (Complaint, Docket No. 1, ¶ 9.) After Twarozek failed to pay the debt, Union-Plus Credit Card employed Defendant Midpoint Resolution Group, LLC ("Midpoint") to collect it. (Complaint, ¶ 12.) Midpoint is a "debt collector" within the meaning of the FDCPA. (Id. at ¶ 5.)

In November 2008, Twarozek called Midpoint and spoke to an agent, who asked her to pay $1,000 to settle her debt. (Id. at ¶ 13.) Twarozek subsequently gave Midpoint a check for that amount, but later put a stop on the check. (Id.) On December 3, 2008, the agent called Twarozek's home. (Id. at ¶ 14.) As the agent began leaving a message on Twarozek's telephone answering machine-explaining that she was "calling from the credit card" and "had a problem"-Twarozek's daughter answered the telephone. (Id.) The agent then spoke with Twarozek's daughter and disclosed that Twarozek owed a debt and had written a bad check. (Id.) The agent "continued to harass" Twarozek's daughter, and threatened legal action if Twarozek did not return Midpoint's call that day. (Id.) Twarozek's daughter called her mother at work that same day to relay the details of the conversation, which allegedly caused Twarozek to become very upset. (Id. at ¶ 15.)

Upon returning home from work on December 3, 2008, Twarozek called Midpoint and spoke with the same agent. (Id. at ¶ 16.) The agent demanded payment of $300 from Twarozek. (Id.) When Twarozek complained about the agent's communication with her daughter, the agent stated that she had not disclosed any private information and, further, that the conversation had been recorded and would be turned over to Twarozek if she paid the $1,000 debt settlement. (Id. at ¶¶ 16, 17.) Twarozek also spoke with a manager at Midpoint that day, who reiterated that the agent's conversation with her daughter had been recorded and that no private information had been disclosed. (Id. at ¶ 17.) Although Midpoint told Twarozek that a recording of the conversation would be e-mailed to her, Twarozek maintains that she never received the recording. (Id.) As a result of Midpoint's actions, Twarozek claims to have suffered actual damages, including becoming nervous, upset, and anxious, and suffering from emotional distress. (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

1. Claims under 15 U.S.C. §§ 1692b(1), 1692b(2), and 1692c(b)

Section 1692b limits a debt collector's contact with third parties to acquiring location information. The debt collector must identify himself, disclose that he is calling to confirm the consumer's location information, and, only if expressly asked, identify his employer.

See 15 U.S.C. § 1692b(1). This section further prevents a debt collector from revealing that the consumer owes a debt. See 15 U.S.C. § 1692b(2). And except as provided in § 1692b, § 1692c(b) limits the individuals a debt collector may contact to the consumer, her attorney, a consumer reporting agency, the creditor, the creditor's attorney, and the debt collector's attorney.

Twarozek alleges that Midpoint violated 15 U.S.C. §§ 1692b(1), 1692b(2), and 1692c(b) by communicating with her daughter, failing to limit the communication to confirming or correcting Twarozek's location information, and disclosing that Twarozek owed a debt. (Complaint, ¶ 20(A).) Based on the undisputed facts taken as true, this Court finds violations of §§ 1692b(1), 1692b(2), and 1692c(b) as alleged.

2. Claims under 15 U.S.C. §§ 1692d, 1692d(2), 1692e(10), and 1692e(11) Section 1692d 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 the use of obscene, profane, or abusive language. See 15 U.S.C. §§ 1692d(2).

Section 1692e prohibits debt collectors from using false, deceptive, or misleading representations to collect a debt. ...


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