VIRGINIA EMERSON HOPKINS, District Judge.
This is a civil action filed on October 30, 2013, by the plaintiff, Rhonda Bass, against the defendant, Mike Rome Holdings, LLC d/b/a MRH & Associates ("MRH"). (Doc. 1). The original complaint alleged that the defendant was liable for: violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (Count One); the Alabama state law claim of invasion of privacy (Count Two); the Alabama state law claim of "negligent, wanton, and/or intentional hiring and supervision of incompetent debt collectors" (Count Three); and "wanton, malicious, and intentional conduct" (Count Four). The plaintiff also demanded a jury trial. (Doc. 1 at 16).
On February 3, 2014, the clerk of court entered the defendant's default in this case. (Doc. 13). The case is now before the court on the plaintiff's motion for entry of a default judgment. (Doc. 16). On August 15, 2014, the court ordered the defendant to show cause "no later than August 29, 2014, why a default judgment should not be entered against it." (Doc. 17 at 1). To date, the defendant has failed to respond.
On September 24, 2014, the court issued an order which, inter alia, stated:
(Doc. 18 at 4-5).
On October 23, 2014, the plaintiff filed an amended complaint which alleges only violations of the following sections of the Fair Debt Collections Practices Act:
The Amended Complaint drops the original Complaint's Alabama state law claims of invasion of privacy; "negligent, wanton, and/or intentional hiring and supervision of incompetent debt collectors;" and "wanton, malicious, and intentional conduct." Other than the federal claims listed above, the Amended Complaint contains no other claims.
The motion for default judgment is now ripe for review.
In 2007, Judge Steele in the Southern District of Alabama summarized the appropriate standard for these motions. His summary, which still accurately sets out the standard, is as follows:
Atl. Recording Corp. v. Carter, 508 F.Supp.2d 1019, 1021-23 (S.D. Ala. 2007).
"The allegations must be well-pleaded in order to provide a sufficient basis for the judgment entered." De Lotta v. Dezenzo's Italian Rest., Inc., No. 6:08CV2033ORL22KRS, 2009 WL 4349806 at *2 (M.D. Fla. Nov. 24, 2009) (citing Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561 F.3d 1298, 1307 (11th Cir.2009)). In making the determination as to whether the complaint is well pleaded, the court notes that the "plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65, 167 L. Ed. 2d 929 (2007) (quotations omitted). "Factual allegations must be enough to raise a right to relief above the speculative level." Id. at 1965. Mere conclusory statements in support of a threadbare recital of the elements of a cause of action will not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009).
The following facts, which are alleged in the Amended Complaint, are deemed to be admitted:
1. The plaintiff, Rhonda Bass is a natural person who is a resident of Alabama, and is a "consumer" as that term is defined by 15 U.S.C. § 1692a(3).
2. The defendant, MRH is a foreign debt collection firm incorporated in Louisiana with its principal place of business in Louisiana that engages in the business of debt collection of alleged defaulted debts. It conducts business in Alabama.
3. The defendant has claimed that the plaintiff allegedly owes a debt on a car deficiency after repossession. The debt was for personal use. The plaintiff actually owes no money on the debt.
4. The defendant claims to be a collector on this debt. It has represented in phone calls and in its correspondence to the plaintiff that it was a debt collector.
5. On some date, an individual named Lester Trey
6. Lester called the plaintiff at least two more times, both before 8:00 a.m.
7. When Lester called the plaintiff, he failed to disclose that he was a debt collector attempting to collect a debt and that any information he obtained would be used for that purpose.
8. Sometime after all of these calls, the defendant then sent the plaintiff a letter dated November 9, 2012, which states as follows:
At the time of this threat to serve a garnishment on the plaintiff's employer within ten days, the defendant had not yet sued the plaintiff, and did not have a judgment.
The Amended Complaint also alleges:
(Doc. 19 at 7).
Based on the allegations contained in the complaint, which are deemed admitted as a result of the defendant's default, the court determines that the defendant is a "debt collector," as defined by the FDCPA. See 15 U.S.C.A. § 1692a(6) ("any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts"). Based on the allegations contained in the complaint, which are deemed admitted as a result of the defendant's default, the court determines that the plaintiff is a "consumer" as defined by the FDCPA. See, 15 U.S.C.A. § 1692a(3) ("any natural person obligated or allegedly obligated to pay any debt").
Count One alleges a violation of section 1692c(a)(1), which prohibits a debt collector from communicating with a consumer in connection with the collection of any debt "at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer." The statute further provides that "a debt collector shall assume that the convenient time for communicating with a consumer is after 8 o'clock antemeridian and before 9 o'clock postmeridian, local time at the consumer's location." The Amended Complaint alleges that the section was violated when defendant called the plaintiff, at least two times, prior to 8:00 a.m. (Doc. 19 at 4). This fact, deemed admitted by the defendant's default, is sufficient to establish liability on this count.
Count Two alleges a violation of section 1692e, which generally prohibits a debt collector from using "any false, deceptive, or misleading representation or means in connection with the collection of any debt." The Amended Complaint alleges that the section was violated when the defendant threatened to garnish the plaintiff's bank accounts, where the plaintiff deposited her Social Security payments. The plaintiff argues that the threat to garnish these accounts amounted to a threat to illegally garnish her Social Security payments, which she states was "something it could not legally do." (Doc. 19 at 10). It is true that the Social Security Act provides that "none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process," 42 U.S.C.A. § 407(a). However, the only facts deemed admitted by the defendant's default are that:
These facts, deemed to be admitted, do not establish a direct threat to garnish the plaintiff's Social Security income, only "wages," whatever that meant at the time Lester said it. Further, these facts do not establish that Lester knew, when he made the comments, that the plaintiff's bank account held her Social Security income. Regardless, certainly any non-exempt income could have been garnished from those accounts, even if some of the amounts therein were exempt. Based on these facts, no claim under Count Two is established.
The plaintiff also alleges that a violation of this section occurred in the November 9, 2012, letter. As a result of the defendant's default, it is deemed admitted that the letter stated:
(Doc. 19 at 4-5). It is also deemed admitted that, at the time of this letter, "the [d]efendant had not yet sued the plaintiff and did not have a judgment." (Doc. 19 at 5). Because there was no judgment, or even any pending court action against the plaintiff, each of the following statements in the letter was a "false, deceptive, or misleading representation ... in connection with the collection of [the] debt:"
These facts, deemed admitted by the defendant's default, are sufficient to establish liability on this count.
Count Three alleges a violation of section 1692e(2)(A), which specifically prohibits a debt collector from "[t]he false representation of ... the character, amount, or legal status of any debt." The Amended Complaint alleges that the November 9, 2013, letter violates this section. Because there was no judgment, or even any pending court action against the plaintiff, each of the following statements in the letter was a "false representation of ... the character, amount, or legal status of any debt:"
These facts, deemed admitted by the defendant's default, are sufficient to establish liability on this count.
In Count Four, the plaintiff alleges a violation of section 1692e(4), which prohibits a debt collector from "[t]he representation or implication that nonpayment of any debt will result in ... garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the debt collector or creditor intends to take such action[]." The Amended Complaint alleges that the threat to garnish the plaintiff's "wages" and bank accounts violates this section. For the reasons previously stated, it does not.
The Amended Complaint also alleges that the November 9, 2013, letter violated this section. Because there was no judgment, or even any pending court action against the plaintiff, the following statement in the letter was an unlawful "representation or implication that nonpayment of any debt will result in ... garnishment, attachment, or sale of any property or wages of any person:"
This fact, deemed admitted by the defendant's default, is sufficient to establish liability on this count.
Count Five alleges a violation of section 1692e(5), which prohibits a debt collector from threatening "to take any action that cannot legally be taken or that is not intended to be taken" in an attempt to collect a debt. The Amended Complaint alleges that the threat to garnish the plaintiff's "wages" and bank accounts violates this section. For the reasons previously stated, it does not.
The Amended Complaint also alleges that the November 9, 2013, letter violated this section. Because there was no judgment, or even any pending court action against the plaintiff, the following statement in the letter was an unlawful threat "to take any action that cannot legally be taken" in an attempt to collect a debt:
This fact, deemed admitted by the defendant's default, is sufficient to establish liability on this count.
Count Six alleges a violation of section 1692e(10), which prohibits a debt collector from "[t]he use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer."
The Amended Complaint alleges that the threat to garnish the plaintiff's "wages" and bank accounts violates this section. For the reasons previously stated, it does not. The Amended Complaint also alleges that the November 9, 2013, letter violated this section. Because there was no judgment, or even any pending court action against the plaintiff, the following statement in the letter was "[t]he use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer:"
This fact, deemed admitted by the defendant's default, is sufficient to establish liability on this count.
Count Seven alleges a violation of section 1692e(11), which requires that the defendant provide warnings and disclosures that it is a debt collector attempting to collect debts. The following is considered a false or misleading communication under section 1692e:
15 U.S.C.A. § 1692e(11). As a consequence of the defendant's default, it has admitted that when Lester called the plaintiff he failed to disclose that he was a debt collector attempting to collect a debt and that any information he obtained would be used for that purpose. This fact is sufficient to establish liability on this count. However, the Amended Complaint's conclusory allegation that the November 9, 2013, letter "misstates the legal requirements and fails to truthfully and completely state the law and [p]laintiff's rights under the law," does not establish liability under this count.
The Amended Complaint alleges a violation of section 1692f, which prohibits a debt collector generally from using "unfair or unconscionable means to collect or attempt to collect any debt." The Amended Complaint also alleges a violation of section 1692f(1), which specifies that
15 U.S.C. § 1692(f)(1).
The Amended Complaint alleges that both Counts Eight and Nine were violated by the threat to garnish the plaintiff's "wages" and bank accounts. For the reasons previously stated, this allegation does not establish liability under Counts Eight and Nine.
The Amended Complaint also alleges that the November 9, 2013, letter violates these sections. Because there was no judgment, or even any pending court action against the plaintiff, the statement that "a garnishment summons or levy may be served upon your employer or other third parties, without any further court proceedings or notice to you, ten days or more from the date hereof," was an attempt to collect of an amount "not expressly authorized by the agreement creating the debt or permitted by law." This fact, deemed admitted by the defendant's default, is sufficient to establish liability on these counts.
Based on the foregoing it is hereby
The Clerk of Court is
(Doc. 19 at 7).
