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Marlene Bonafede, Frank Bonafede, Michael Hinderliter, and Katherine v. Advanced Credit Solutions

February 5, 2012

MARLENE BONAFEDE, FRANK BONAFEDE, MICHAEL HINDERLITER, AND KATHERINE HINDERLITER, PLAINTIFFS,
v.
ADVANCED CREDIT SOLUTIONS, 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 29, 2010, Plaintiffs Marlene and Frank Bonafede, and Michael and Katherine Hinderliter 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 12, 2011. Presently before this Court is Plaintiffs' Motion for Default Judgment pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure. For the following reasons, Plaintiffs' motion is granted.

II. BACKGROUND

Plaintiff Marlene Bonafede is the mother of Plaintiffs Frank Bonafede and Michael Hinderliter, and the step-daughter of Plaintiff Katherine Hinderliter. (Comp., Docket No. 10-2, ¶ 4.) Sometime prior to October 21, 2010, Defendant Advanced Credit Solutions, LLC ("ACS") began repeatedly calling Katherine Hinderliter's home seeking to collect payment on a debt allegedly owed by Frank. (Comp. ¶ 14.) ACS was informed that the number it was calling was not the correct one for reaching him. (Comp. ¶ 15.) On October 21, 2010, ACS again called Katherine's home. (Comp. ¶ 16.) This time, ACS asked to speak with Marlene, who was available and took the call. (Id.) ACS then proceeded to inform her that it was a law firm attempting to collect a debt from her son Frank, and threatened to issue a warrant and to take him to court if payment arrangements were not immediately made. (Id.) ACS then sought to collect the debt owed directly from Marlene. (Id.) During this call, ACS also disclosed her Social Security number and asked Marlene to verify it. (Id.)

Michael Hinderliter was standing next to his mother at the time of the call and asked to speak with ACS. (Comp. ¶ 17.) ACS identified itself as "Steve Donatello" of "The Law Offices of Steve Donatello," a fictitious name and firm. (Comp. ¶¶ 18, 20, 24.) ACS repeated its threats to issue a warrant for Frank and then told Michael that issuance of this warrant would be his fault, before hanging up. (Comp. ¶ 19.) Fifteen minutes later, Michael dialed the number from which ACS had called and was greeted by a new voice identifying itself as Steve Donatello. (Comp. ¶ 20.) Only later, when Michael again called the number, did he learn it belonged to ACS. (Comp. ¶ 24.)

Frank was later told of these events. (Comp. ¶ 21.)

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. Statutory Damages

Plaintiffs claim a wide range of violations under numerous provisions of the FDCPA, including sections 1692b(1) and 1692c(b), 1692d(1) ...


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