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Caplan v. Premium Receivables LLC

United States District Court, W.D. Pennsylvania

July 29, 2015



TERRENCE F. McVERRY, Senior District Judge.

Now pending before the Court is the MOTION FOR DEFAULT JUDGMENT filed by Plaintiff, Garrett Caplan, along with a brief in support. ECF Nos. 8-9. Plaintiff has also filed the following documents in support of his motion: the declaration of one of his attorneys, Christian M. Rieger, Esq. (ECF No. 8-2), his own declaration (ECF No. 8-3), and his attorneys' time entries and fee statement (ECF No. 8-4 R).

I. Background

This action arises out of Defendant Premium Receivables LLC's alleged violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq. Plaintiff filed his Complaint on April 7, 2015, alleging that Defendant's alleged conduct violated various provisions of the FDCPA: § 1692b(1), § 1692b(2), § 1692c(b), § 1692d, § 1692d(5), § 1692d(6), § 1692e, § 1692e(3), § 1692e(5), § 1692e(10), § 1692e(11), § 1692e(14), § 1692f, and § 1692g. The docket indicates that Defendant was served with a summons and copy of the Complaint on April 17, 2015. ECF No. 5. Defendant was allowed until May 8, 2015, to file a responsive pleading. None has been filed. Accordingly, on May 28, 2015, Plaintiff requested that the Clerk enter default based on Defendant's failure to answer, plead, or otherwise defend itself in this action. ECF No. 6. Default was entered the next day. ECF No. 7. On July 23, 2015, Plaintiff filed this motion, in which he seeks the entry of default judgment against Defendant.

II. Legal Standard

"[T]he entry of a default judgment is left primarily to the discretion of the district court." Hritz v. Woma Corp., 732 F.2d 1178, 1180 (3d Cir. 1984). Upon the Clerk's entry of default, "the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true." Comdyne I, Inc. v. Corbin, 980 F.2d 1142, 1149 (3d Cir.1990) (quoting 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure, § 2688 at 444 (2d ed.1983)). However, "the Court need not accept the moving party's legal conclusions[.]" Chanel, Inc. v. Gordashevsky, 558 F.Supp.2d 532, 535 (D.N.J. 2008) (citations omitted). Thus, "before entering a default judgment the Court must decide whether the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit mere conclusions of law.'" Ford v. Consigned Debts & Collections, Inc., No. 09-3102, 2010 WL 5392643, at *2 (D.N.J. Dec. 21, 2010) (quoting Chanel v. Gordashevsky, 558 F.Supp.2d 532, 535 (D.N.J. 2008)).

III. Discussion

To begin, the Court must determine whether the well-pleaded facts (as opposed to legal conclusions) in the Complaint state a cause of action against Defendant. Having thoroughly reviewed the Complaint, the relevant statutory provisions, and the applicable case law interpreting same, the Court is skeptical of whether several of the statutory sections upon which Plaintiff relies have actually been violated.

Specifically, the Court does not believe that the restrictions on third-party communications, 15 U.S.C. §§ 1692b(1)-(2) and 1692c(b), were violated. See Counts I-III. Nor does the Court find that 15 U.S.C. § 1692d (or the cited provisions thereunder) was violated by Defendant's conduct. See Counts IV-VI. Specifically, the number of calls - three calls to Plaintiff (two of which went unanswered, though Defendant did leave voicemails); one call to Plaintiff's brother-in-law; seven unprompted calls to Plaintiff's mother; one call to Plaintiff's mother returning her own call; and one call to Plaintiff's mother - is too low to state a claim under § 1692d(5). See generally Zortman v. J.C. Christensen & Associates, Inc., 870 F.Supp.2d 694, 707 (D. Minn. 2012) ("A remarkable volume of telephone calls is permissible under FDCPA jurisprudence."). Moreover, although Plaintiff claims that § 1692d(6) was violated because Defendant identified itself as "Platinum Holdings" to his mother, "[t]here is substantial authority that the [§ 1692d(6)'s] meaningful disclosure' requirement is limited to calls to the debtor." Lynn v. Monarch Recovery Mgmt., Inc., No. CIV. WDQ-11-2824, 2013 WL 1247815, at *11 (D. Md. Mar. 25, 2013) (citations omitted). Likewise, there are no facts in the Complaint to support a claim under § 1692e(3), which prohibits a debt collector from falsely representing or implying "that any individual is an attorney or that any communication is from an attorney." Finally, on the facts alleged, the Court cannot find a violation of § 1692e(14). "[T]he cases in which a violation of § 1692e(14) have been found typically involve a debt collector misrepresenting its identity, such as by purporting to be the creditor when it is not, purporting to be a government agency when it is not, or purporting to be distinct from the creditor when it is not." Mahan v. Retrieval-Masters Credit Bureau, Inc., 777 F.Supp.2d 1293, 1300 (S.D. Ala. 2011) (citations omitted). But this section permits a debt collector to use any "name under which it usually transacts business" - i.e., a "trade name, licensed or otherwise." Id. Here, there is nothing to suggest that "Platinum Holdings" isn't a valid trade name. Furthermore, it strains logic to believe that Plaintiff's mother could have been deceived or mislead about who was calling her, inasmuch as she had initiated the contact with Defendant; Defendant was just returning her call when the reference to "Platinum Holdings" was made.

Nevertheless, the facts alleged do appear to state a valid cause of action under § 1692e(5), which prohibits a debt collector from making empty threats to take legal action, inasmuch as Defendant threatened to file a lawsuit against Plaintiff and, to date, has not actually done so. That same conduct supports a violation of § 1692e(10), which bars the "use of any false representation or deceptive means to collect or attempt to collect any debt." Additionally, since, according to the Complaint, Defendant failed to disclose in its initial communication with Plaintiff that it was "attempting to collect a debt and that any information obtained w[ould] be used for that purpose, " Plaintiff has stated a cognizable claim under § 1692e(11).[1] So, too, has Plaintiff established a violation of § 1692g, since Defendant failed to validate the debt in writing within five days of the initial communication with Plaintiff.

Because there has been at least one violation of the FDCPA, the Court must address Plaintiff's claim for damages. Under the FDCPA,

any debt collector who fails to comply with any provision of this subchapter with respect to any person is liable to such person in an amount equal to the sum of-
(1) any actual damage sustained by such person as a result of such failure; (2)(A) in the case of any action by an individual, such additional damages as the court may allow, but not exceeding $1, 000...;
(3) in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney's fee as determined by the court.

15 U.S.C. § 1692k. Plaintiff seeks $1, 000 in actual damages for "humiliation, embarrassment, stress, aggravation, emotional distress, and mental anguish, " $1, 000 in statutory damages, $2, 632.50 in ...

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