United States District Court, D. Colorado
A. BRIMMER UNITED STATES DISTRICT JUDGE
matter comes before the Court on plaintiff's Motion for
Default Judgment [Docket No. 16] and Response to Order to
Show Cause [Docket No. 21]. The Court has jurisdiction
pursuant to 15 U.S.C. § 1692k(d) and 28 U.S.C. §
of the Clerk of Court's entry of default, Docket No. 12,
the allegations in plaintiff's complaint, Docket No. 1,
are deemed admitted. Olcott v. Del. Flood Co., 327
F.3d 1115, 1125 (10th Cir. 2003). This case concerns
defendant's attempt to collect on a “2006 Drive
Financial automobile loan, ” which debt arose out of
transactions that were primarily for personal, family, or
household purposes. Docket No. 1 at 3, ¶ 12. Beginning
in April 2014, defendant repeatedly called plaintiff seeking
payment of the alleged debt. Id. ¶ 14.
Plaintiff alleges that the debt is barred by Colorado's
six-year statute of limitations for actions based upon the
rights set forth in an instrument securing the repayment of a
loan. Id. at 3, ¶ 13; see also Colo.
Rev. Stat. § 13-80- 103.5(1)(a). Additionally, defendant
failed to timely inform plaintiff that the debt would be
assumed to be valid unless disputed within thirty days, that
defendant would obtain verification of the debt if plaintiff
notified the collector in writing that he disputed the debt,
or that defendant would provide plaintiff with the name and
address of the company to which plaintiff originally owed the
debt if plaintiff notified defendant within thirty days.
Id. at 4, ¶ 19.
brings four claims for relief under the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692
et seq. Plaintiff's first three claims each rely
on the allegation that the debt at issue was barred by the
applicable statute of limitations. See Docket No. 1
at 4-6. Plaintiff's fourth claim alleges that defendant
failed to provide the required notice within five days of
defendant's initial communication with plaintiff, in
violation of 15 U.S.C. § 1692g(a). Id. at 6-7,
27, 2016, the Court granted plaintiff's motion for
default judgment as to his fourth claim for relief, finding
that plaintiff's complaint sufficiently alleged a
violation of the FDCPA. See Docket No. 19 at 5. In
contrast, the Court found that default judgment was not
appropriate on plaintiff's remaining claims, all of which
depended on a finding that plaintiff's debt was barred by
a six-year statute of limitations, because plaintiff had
failed to establish that his cause of action accrued before
April 2008. Id. at 6. Because the Court granted
plaintiff's request for default judgment only in part, it
deferred resolution of plaintiff's statutory damages and
attorney's fees until such time as all of plaintiff's
claims had been resolved. Id. at 7-8.
entry of the Court's order, plaintiff took no action in
the case for over a year. On November 29, 2017, the Court
directed plaintiff to show cause why the case should not be
dismissed for failure to prosecute. Docket No. 20. On
December 18, 2017, plaintiff filed a response to the
Court's show cause order. Docket No. 21. Plaintiff
requests that the case not be dismissed and provides
additional information regarding the accrual dates of his
first, second, and third claims for relief. See id.
order to obtain a judgment by default, a party must follow
the two-step process described in Fed.R.Civ.P. 55. First, the
party must seek an entry of default from the Clerk of the
Court under Rule 55(a). Second, after default has been
entered by the Clerk, the party must seek judgment under the
strictures of Rule 55(b). See Williams v. Smithson,
1995 WL 365988, at *1 (10th Cir. June 20, 1995) (citing
Meehan v. Snow, 652 F.2d 274, 276 (2d Cir. 1981)).
decision to enter default judgment is “committed to the
district court's sound discretion.”
Olcott, 327 F.3d at 1124 (citation omitted). In
exercising that discretion, the Court considers that
“[s]trong policies favor resolution of disputes on
their merits.” Ruplinger v. Rains, 946 F.2d
731, 732 (10th Cir. 1991) (quotation and citations omitted).
“The default judgment must normally be viewed as
available only when the adversary process has been halted
because of an essentially unresponsive party.”
Id. It serves to protect plaintiffs against
“interminable delay and continued uncertainty as to his
rights.” Id. at 733. When “ruling on a
motion for default judgment, the court may rely on detailed
affidavits or documentary evidence to determine the
appropriate sum for the default judgment.” Seme v.
E&H Prof'l Sec. Co., Inc., No.
08-cv-01569-RPM-KMT, 2010 WL 1553786, at *11 (D. Colo. Mar.
may not simply sit out the litigation without consequence.
See Cessna Fin. Corp. v. Bielenberg Masonry Contracting,
Inc., 715 F.2d 1442, 1444-45 (10th Cir. 1983)
(“[A] workable system of justice requires that
litigants not be free to appear at their pleasure. We
therefore must hold parties and their attorneys to a
reasonably high standard of diligence in observing the
courts' rules of procedure. The threat of judgment by
default serves as an incentive to meet this standard”).
One such consequence is that, upon the entry of default
against a defendant, the well-pleaded allegations in the
complaint are deemed admitted. See Charles Wright,
Arthur Miller & Mary Kane, Fed. Prac. & Proc. §
2688 (3d ed. 2010). “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.”
Id. 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 Atl. 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 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 and citation omitted).
seeks default judgment on claims brought under the FDCPA. To
establish a claim under the FDCPA, a plaintiff must show that
(1) he is a “consumer” within the meaning of 15
U.S.C. § 1692a(3),  (2) his debt arises out of a
transaction entered into primarily for personal, family, or
household purposes, 15 U.S.C. § 1692a(5), (3) defendant
is a “debt collector” within the meaning of 15
U.S.C. § 1692a(6),  and (4) defendant, through its acts or
omissions, violated a provision of the FDCPA. See Nikkel
v. Wakefield & Assoc., Inc., No.
10-cv-02411-PAB-CBS, 2012 WL 5571058 at *10 (D. Colo. Nov.
15, 2012). As this Court found in its earlier order,
plaintiff has established the first three elements of an
FDCPA claim by alleging that he is a consumer who incurred a
debut for personal, family, or household purposes, Docket No.
1 at 2-3, ¶¶ 5, 12, and that defendant is a
“debt collector” as defined by the FDCPA.
Id. at 2, ¶ 8; see also Docket No. 19
at 5. In his first, second, and third claims for relief,
plaintiff further alleges that defendant violated
§§ 1692d, 1692e, and 1692f of the FDCPA by
improperly attempting to collect a time-barred debt. Section
1692d prohibits a debt collector from “engag[ing] in
any conduct the natural consequence of which is to harass,
oppress, or abuse any person in connection with the
collection of a debt.” 15 U.S.C. § 1692d. The
provision lists, as an example of such conduct,
“[c]ausing a telephone to ring or engaging any person
in telephone conversation repeatedly or continuously with
intent to annoy, abuse, or harass any person at the called
number.” Id. Section 1692e provides that
“[a] debt collector may not use any false, deceptive,
or misleading representation or means in connection with the
collection of any debt, ” such as a false
representation regarding “the character, amount, or
legal status of any debt.” 15 U.S.C. § 1692e.
Finally, § 1692f prohibits a debt collector from using
“unfair or unconscionable means to collect or to
attempt to collect any debt.” 15 U.S.C. § 1692f.
alleges that defendant violated these provisions by
repeatedly contacting plaintiff after plaintiff told
defendant that he did not intend to pay the time-barred debt,
Docket No. 1 at 3-4, ¶¶ 14-15, 17-18, and by
attempting to revive the time-barred debt through offers of
settlement. Id. at 3, ¶ 16; see also
Docket No. 21 at 4-5, ¶¶ 14-17 (summarizing
allegations pertinent to remaining claims). Assuming
plaintiff's debt was time-barred in 2014, plaintiff's
allegations are sufficient to establish violations of
§§ 1692d, 1692e, and 1692f. See Mazza v.
Verizon Washington DC, Inc., 852 F.Supp.2d 28, 38
(D.D.C. 2012) (finding that plaintiff had stated a claim
under § 1692d where he alleged that defendant had (1)
made repeated phone calls and written requests for payment
after plaintiff had denied owing the money and offered proof
of payment, and (2) made plaintiff a “settlement
offer” under which defendant agreed to accept payment
of half of the “current amount due”); Gilroy
v. Ameriquest Mortg. Co., 632 F.Supp.2d 132, 136-137
(D.N.H. 2009) (noting that an intent to harass may be
inferred for purposes of § 1692d where “the debt
collector continue[s] to call the debtor after the debtor
ha[s] asked not to be called and ha[s] repeatedly refused to
pay the alleged debt”); Smothers v. Midland Credit
Mgmt., Inc., 2016 WL 7485686, at *3-5 (D. Kan. Dec. 29,
2016) (finding that defendant violated § 1692e by
attempting to “lure” plaintiff into making a
payment on a time-barred debt and by detailing “the
benefits of paying stale debt” but not the risks that
such payment would revive the statute of limitations);
Daugherty v. Convergent Outsourcing, Inc., 836 F.3d
507, 513 (5th Cir. 2016) (holding that a “collection
letter seeking payment on a time-barred debt (without
disclosing its unenforceability) but offering a
‘settlement' and inviting partial payment (without
disclosing the possible pitfalls) could constitute a
violation of the FDCPA”).
Court previously denied plaintiff's request for default
judgment as to these claims because plaintiff had failed to
establish that the debt was time-barred under Colo. Rev.
Stat. § 13-80-103.5(1)(a). Docket No. 19 at 6-7. The
Court noted that, in order for plaintiff to establish that
defendant's phone calls began when the debt was already
time-barred, he would have to show that defendant's cause
of action accrued before April 2008. Id. at 7. In
response to the Court's show cause order, plaintiff
asserts that his car was repossessed in 2007 after he stopped
making payments on the car loan. Docket No. 21-1 at 2,
¶¶ 5-6. He further alleges that sometime after the