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Len Ford v. Consigned Debts & Collections

December 21, 2010


The opinion of the court was delivered by: Hillman, District Judge


Presently before the Court are the motions of plaintiff requesting default judgment and attorney's fees and costs to be adjudged in his favor against defendant on plaintiff's Fair Debt Collection Practices Act claim. For the reasons expressed below, plaintiff's motions will be granted.


Plaintiff, Len Ford, claims that defendant, Consigned Debts & Collections, Inc., violated the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1962, et seq., through its communications with plaintiff regarding an unpaid debt.*fn1

Plaintiff claims that defendant*fn2 improperly failed to identify itself as a debt collector when it telephoned him, improperly threatened to sue plaintiff if he did not pay off the debt immediately, and improperly threatened plaintiff that it would contact his parole officer and have him thrown back in jail if he did not immediately pay his debt. Plaintiff claims that this caused him severe emotional and mental distress.

Plaintiff filed his complaint on June 25, 2009, and effected service on defendant on September 24, 2009. Defendant failed to answer or otherwise appear in the action within the time prescribed by the Federal Rules, and plaintiff thus requested a Clerk's entry of default pursuant to Fed. R. Civ. P. 55(a).*fn3 The Clerk entered defendant's default on October 26, 2009. On May 10, 2010, plaintiff filed motions for default judgment, pursuant to Fed. R. Civ. P. 55(b), and for attorney's fees and costs.

On July 12, 2010, this Court denied without prejudice plaintiff's motions and allowed defendant 30 days to appear in this action. The Court chose this path because on May 19, 2010, Michael P. Hayes, "Collections Manager" for defendant, mailed a letter to the Court, expressing what the Court construed as his request to vacate default and his intention that defendant would appear and defend itself in this action. (See Docket Nos. 8, 9.) The letter also explained that the address being used by plaintiff is incorrect, and it provides a new address.

After the expiration of the 30-day period, defendant did not file its appearance, and, accordingly, plaintiff refiled his motions for default, default judgment and for attorney's fees. Approximately two weeks later, Mr. Hayes sent the Court another letter, which again states that defendant cannot defend itself as long as plaintiff mails correspondence to the incorrect address.*fn4

Defendant, however, has never entered its appearance in this matter or contested plaintiff's claims.*fn5


A. Default

The first step in obtaining a default judgment is the entry of default. "When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the Clerk must enter the party's default." Fed. R. Civ. P. 55(a). Defendant has been properly served, and it has not filed its answer or any responsive pleading. Defendant is therefore in default and it should be entered by the Clerk.

B. Default Judgment

"Federal Rule of Civil Procedure 55(b)(2) authorizes courts to enter a default judgment against a properly served defendant who fails to a file a timely responsive pleading." Chanel v. Gordashevsky, 558 F. Supp. 2d 532, 535 (D.N.J. 2008) (citing Anchorage Assoc. v. Virgin Is. Bd. of Tax Rev., 922 F.2d 168, 177 n.9 (3d Cir. 1990)). However, a party seeking default judgment "is not entitled to a default judgment as of a right." Franklin v. Nat'l Maritime Union of America, 1991 U.S. Dist. LEXIS 9819, at *3-4 (D.N.J. 1991) (quoting 10 Wright, Miller & Kane, Federal Practice and Procedure § 2685 (1983)), aff'd, 972 F.2d 1331 (3d Cir. 1992). The decision to enter 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).

Although every "well-pled allegation" of the complaint, except those relating to damages, are deemed admitted, Comdyne I. Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir. 1990), 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," Chanel, 558 F. Supp. 2d at 535 (citing Directv, Inc. v. Asher, No. 03-1969, 2006 WL 680533, at *1 (D.N.J. Mar. 14, 2006)). "Three factors control whether a default judgment should be granted: (1) prejudice to the plaintiff if default is denied, (2) whether the defendant appears to have a litigable defense, and

(3) whether defendant's delay is due to culpable conduct." Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d Cir. 2000); United States v. $55,518.05 in U.S. Currency, 728 F.2d 192, 195 (3d Cir. 1984). If a review of the complaint demonstrates a valid cause of action, the Court ...

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