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Vibar v. Audubon Financial Bureau

United States District Court, Second Circuit

November 1, 2013


JOHN T. CURTIN, District Judge.


On June 24, 2013, plaintiff, Ernesto Vibar, filed a complaint alleging various violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692, et seq. Defendant, Audubon Financial Bureau, failed to appear and defend this action, which resulted in the Clerk of the Court entering default on August 19, 2013. Item 7. Presently before the court is plaintiff's motion for default judgment pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure. Item 8. For the following reasons, plaintiff's motion is granted.


1. 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. 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).

2. Liability

As set forth in the complaint, the facts are straightforward. On approximately April 12, 2013, defendant began sending text messages to plaintiff on his cellular telephone. The text messages never identified the defendant's business name and failed to inform plaintiff that defendant was a debt collector. Some of the text messages stated that the "transaction was returned due to insufficient funds." Item 1, ¶¶ 13-17. On April 24, 25, and 30, 2013, defendant left multiple voice mail messages on plaintiff's cellular telephone. Defendant's representative, Ms. Poole, indicated that there was a "case number" in Clark County. Defendant's representative did not identify herself as debt collector nor did she provide defendant's business name. Id., ¶¶ 19-25.

Plaintiff alleges a number of violations under provisions of the FDCPA, including sections 1692d, 1692d (6), 1692 e, 1692e(10), and 1692e(11). These provisions of Title 15 prohibit various acts, including engaging in conduct the natural consequence of which is to harass, oppress or abuse the consumer in connection with the collection of a debt, the use of false, deceptive or misleading representations in connection with the collection of a debt, failing to identify the debt collector in messages, and failing to disclose the fact that the defendant is a debt collector. As plaintiff has sufficiently alleged defendant's violations of the FDCPA, liability under the FDCPA is established.

3. Damages

Section 1692k(a)(2)(A) authorizes the court to award up to $1, 000 in statutory damages per plaintiff for any violation of the FDCPA. The specific amount of statutory damages, not to exceed $1, 000, falls within the court's discretion. See Savino v. Computer Credit, Inc., 164 F.3d 81, 86 (2d Cir.1998). Factors to be considered by the court in determining an appropriate statutory damages award include the frequency, persistence, and nature of the debt collector's noncompliance, the debt collector's resources, the number of individuals adversely affected, and the extent to which the debt collector's non-compliance was intentional. See 15 U.S.C. § 1692k(b)(1). Awards of the $1, 000 statutory maximum are typically granted in cases where the defendants' violations are "particularly egregious or intimidating." Cordero v. Collection Co., 2012 WL 1118210, *2 (E.D.N.Y. April 3, 2012).

By virtue of the entry of default, defendant is deemed to have admitted the well-pleaded allegations of the complaint, including the failure to identify itself as a debt collector and falsely suggesting that a court case had been filed in Clark County. Under the circumstances, the court awards plaintiff a total of $750 in statutory damages pursuant to 15 U.S.C. § 1692k(a)(2)(A). See Dayton v. Northeast Fin. Solutions, 2009 WL 4571819, *2 (W.D.N.Y. December 7, 2009) (court awarded statutory damages of $750 where defendant ...

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