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Hemphill v. ACE Adjustment Co., Inc.

United States District Court, D. Colorado

September 25, 2014

JOHATHAN HEMPHILL, Plaintiff,
v.
ACE ADJUSTMENT CO., INC. D/B/A ASSET COLLECTION, Defendant.

ORDER GRANTING PLAINTIFFS' MOTION FOR ENTRY OF DEFAULT JUDGMENT

RAYMOND P. MOORE, District Judge.

Plaintiff Jonathan Hemphill ("Plaintiff") bring claims against Defendant Ace Adjustment Co., Inc. d/b/a/Asset Collection Experts, Inc. ("Ace") in this action arising out of alleged violations of the Fair Debt Collection Practices Act ("FDCPA"). Before the Court is Plaintiffs' Motion for Entry of Default Judgment (the "Motion"). (ECF No. 23.)

For the reasons set forth below, Plaintiffs' Motion for Entry of Default Judgment is granted.

I. BACKGROUND

Plaintiff initiated this action on May 8, 2013, accusing Ace of repeated violations of the FDCPA. (ECF No. 1.) Plaintiff alleges that after he incurred a debt to a dentist office of $140, Ace attempted to collect the debt on behalf of the creditor dentist office, and in the course of attempting to collect the debt, Ace (a) "used an offensive and misleading tone with Plaintiff;" (b) Ace told Plaintiff that they were adding legal fees and $115 per day in interest. Plaintiff states that he "borrowed money from a family member and paid Defendant $498 out of fear that the Debt would multiply within days." ( Id. at 3.) Plaintiff further alleges that he was never provided with any "initial written correspondence informing Plaintiff of his rights under Federal law." ( Id. ) Ace never answered the complaint or otherwise responded to this action.

Plaintiff filed a Motion for Entry of Default on October 10, 2013, and the Clerk of the Court entered an Entry of Default against Ace on the same date. (ECF Nos. 19, 20.) Plaintiff subsequently filed the present Motion for Default Judgment on December 3, 2013. (ECF No. 23.)

The Court has reviewed the motion, the exhibits and affidavits and the applicable law, and is sufficiently advised on the issues involved.

II. LEGAL STANDARD

The Court has jurisdiction pursuant to 28 U.S.C. § 1331.

Default must enter against a party who fails to appear or otherwise defend a lawsuit. Fed.R.Civ.P. 55(a). "[D]efault judgment must normally be viewed as available only when the adversary process has been halted because of an essentially unresponsive party. In that instance, the diligent party must be protected lest he be faced with interminable delay and continued uncertainty as to his rights. The default judgment remedy serves as such a protection." In re Rains, 946 F.2d 731, 732-33 (10th Cir.1991) (internal quotation marks and citation omitted). Further, "a party is not entitled to a default judgment as of right; rather the entry of a default judgment is entrusted to the sound judicial discretion' of the court." Greenwich Ins. Co. v. Daniel Law Firm, No. 07-cv-2445, 2008 WL 793606, at *2 (D. Colo. Mar. 22, 2008) (internal citation omitted).

"Even after default, however, it remains for the court to consider whether the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit mere conclusions of law." 10A Wright & Miller § 2688, at 63. A court need not accept conclusory allegations. Moffett v. Halliburton Energy Servs., Inc., 291 F.3d 1227, 1232 (10th Cir.2002). Although "[s]pecific facts are not necessary" in order to state a claim, Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)), the well-pleaded facts must "permit the court to infer more than the mere possibility of misconduct." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal quotation marks and alteration marks omitted). Thus, even though modern rules of pleading are somewhat forgiving, "a complaint still must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory." Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir.2008) (quotation marks and citation omitted).

III. ANALYSIS

Based on a review of the well-pleaded facts and supporting evidence in Plaintiff's Complaint, the Court finds that he has sufficiently stated a claim under the FDCPA. The Court accepts as true Plaintiff's allegations that (1) he is a consumer and Ace is a debt collector as those terms are defined by the FDCPA; (2) Ace contacted Plaintiff on numerous occasions to attempt to collect on his debt; (3) in the course of attempting to collect the debt, Ace misrepresented the amount of the debt, used abusive language, and failed to make required disclosures. Taking Plaintiff's allegations as true, the Court must determine whether these facts constitute a legitimate cause of action entitling Plaintiff to default judgment.

Congress enacted the FDCPA "to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses." 15 ...


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