United States District Court, W.D. New York
DECISION AND ORDER
WILLIAM M. SKRETNY UNITED STATES DISTRICT JUDGE.
Plaintiff, Charles Pettitt, commenced this action on July 12,
2017, alleging violations of the Fair Debt Collection
Practice Act (“FDCPA”) and New York State Law.
(Docket No. 1.) On July 13, 2017, a summons was issued to
Defendant Chiari & Ilecki at 14 Lafayette Square, Ste.
1440, Buffalo, NY 14203. (Docket No. 2.) On August 21, 2017,
the Clerk of Court entered a default against Chiari &
Ilecki for failure to appear or otherwise defend in
accordance with Fed.R.Civ.P. 55. (Docket No. 7.) On October
17, 2017, Chiari & Ilecki filed the present Motion to Set
Aside Default. (Docket No. 11.) For the reasons discussed
below, the motion is granted.
55(c) of the Federal Rules of Civil Procedure provides that,
“the court may set aside an entry of default for good
cause.” Fed.R.Civ.P. 55(c). In evaluating a motion to
set aside an entry of default under Rule 55(c), “a
court must evaluate: (1) the willfulness of the default; (2)
the prejudice to the adversary if the default is set aside;
and (3) whether the defendants present a meritorious
defense.” Holford USA Ltd., Inc. v. Harvey,
169 F.R.D. 41, 44 (S.D.N.Y. Oct. 8, 1996). “The
court's discretion is narrow in light of the
‘strong policies favoring the resolution of genuine
disputes on their merits, ' and the admonition that
‘doubts are to be resolved in favor of trial on the
merits.'” Id. at 44 (citing Traguth v.
Zuck, 710 F.2d 90, 94 (2d Cir. 1983)).
Pettitt does not contest the first factor, and Chiari &
Ilecki's failure to answer the complaint appears to be
due to carelessness or mistake in timely updating its mailing
address with the New York Department of State.
“Willfulness does not include mere carelessness or
negligence.” RLS Associates, LLC. v. United Bank of
Kuwait PLC, No. 01 CIV 1290 CSH, 2002 WL 122927, *3
(S.D.N.Y. Jan.29, 2002); see also American Alliance Ins.
Co., Ltd. v. Eagle Ins. Co., 92 F.3d 57, 61 (2d
Cir.1996). Nor does Pettitt challenge Chiari &
Ilecki's contention that no prejudice exists. Instead,
Pettitt's argument in opposition to the motion focuses on
whether Chiari & Ilecki can present a meritorious
“To satisfy the criterion of a ‘meritorious
defense, ' the defense need not be ultimately persuasive
at this stage. ‘A defense is meritorious if it is good
at law so as to give the factfinder some determination to
make.'” Am. All. Ins. Co. v. Eagle Ins.
Co., 92 F.3d 57, 61 (2d Cir. 1996) (quoting Anilina
Fabrique de Colorants v. Aakash Chems. and Dyestuffs,
Inc., 856 F.2d 873, 879 (7th Cir. 1988)). This is a
“low threshold, ” which can be satisfied by a
denial of all material allegations. Holford, 169
F.R.D. at 44 (citing Meehan v. Snow, 652 F.2d 274,
277 (2d Cir. 1981)). “‘The test of such a defense
is measured not by whether there is a likelihood that it will
carry the day, but whether the evidence submitted, if proven
at trial, would constitute a complete defense.'”
Pecarsky v. Galaxiworld.com Ltd., 249 F.3d 167, 173
(2d Cir. 2001) (quoting Enron Oil Corp. v.
Diakuhara, 10 F.3d 90, 98 (2d Cir. 1993)).
respect to the FDCPA claim, Pettitt argues that Chiari &
Ilecki cannot present a meritorious defense because it did
not have possession of a necessary document, one in which
Pettitt allegedly acknowledged the debt and thereby extended
the period for collection. Although Pettitt cites authority
demonstrating that such a document would be necessary for
collection of the debt under the statute of frauds
(see Docket No. 13 at 6), he fails to cite any
authority demonstrating that Chiari & Ilecki's
failure to have the document in hand at the time that it
filed the debt-collection action was a bright-line
requirement. Indeed, the only authority he cites on the
subject stands for the opposite position: “that merely
filing a collection suit without possessing adequate means to
prove the claims . . . did not give rise to an FDCPA
violation.” (Id. at n. 2, citing Harvey v.
Great Seneca Fin. Corp., 453 F.3d 324 (6th Cir.
2006)). Chiari & Ilecki has submitted
affidavits stating that the document in which Plaintiff
acknowledged the debt did exist at one time (even if it has
since been destroyed), and that it reasonably relied on a
representation that this document existed at the time that it
filed the debt-collection action. This appears to contain at
least a “hint” of a potential meritorious
defense. See Weisel v. Pischel, 197 F.R.D. 231, 239
(E.D.N.Y. 2000) (defense is meritorious on motion to set
aside default if it “contain[s] even a hint of a
suggestion which, proven at trial, would constitute a
complete defense”). The analysis of the abuse of
process claim relies on a finding that Chiari & Ilecki
had an intent to harm Pettitt. Chiari & Ilecki has denied
any intent to harm, and this Court cannot
“assume” such an intent for purposes of this
motion, despite Pettitt's urging. (See Docket
No. 13 at 11); see also Gillard v. Clement, No. 07-
CV-281S, 2008 WL 5231356, at *2 (W.D.N.Y. Dec. 11, 2008)
(“The denial of all material allegations satisfies the
low threshold necessary to establish a meritorious
defense.”) Therefore, this Court concludes-without
making any decision as to the merits-that Chiari & Ilecki
has raised the possibility of a meritorious defense for
purposes of setting aside default under Rule 55(c).
Artmatic USA Cosmetics v. Maybelline Co., 906
F.Supp. 850, 855 (E.D.N.Y. 1995) (“A party's
defense may be meritorious if the defense raises a
significant issue; a party need not establish the merits of
the defense conclusively.”) (citation omitted).
light of this Circuit's strong preference for resolving
disputes on the merits, and also given this Court's
finding that Chiari & Ilecki's conduct was not
willful, that Pettitt will not be prejudiced, and that the
merits of the defense are contested, this Court grants the
Motion to Set Aside Default.
HEREBY ORDERED, that Defendant's Motion to Set Aside
Default (Docket No. 11) is GRANTED; FURTHER, that the Clerk
of the Court is directed to vacate the entry of default.
(Docket No. 7).
 Chiari & Ilecki's request that
Pettitt's opposition be stricken from the record (Docket
No. 14 at 2) is denied.
 Pettitt cites this case in the context
of arguing that it should not be considered, as Chiari &
Ilecki' opening brief did not make an argument that it
was not required to have possession of the relevant document
at the time of filing. This Court disagrees. Although Chiari
& Ilecki did not cite any precedent on this point in its
opening brief, it certainly made the argument that it ...