United States District Court, D. Colorado
A. BRIMMER, CHIEF UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiff's Motion for
Default Judgment [Docket No. 14]. 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. 10,
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). Sometime before April 2009,
plaintiff incurred a financial obligation for an overdrawn
bank account that was primarily for plaintiff's personal
use or for household expenditures. Docket No. 2 at 2-3,
¶¶ 6, 22. Plaintiff last made a payment toward the
obligation in April 2009. Id. at 3, ¶ 22. On or
about May 1, 2018, defendant called plaintiff in an attempt
to collect plaintiff's debt. Id., ¶ 15. On
or about May 3, 2018, defendant sent a letter to plaintiff in
an attempt to collect plaintiff's debt. Id.,
¶ 17; Docket No. 2-1. According to the letter, defendant
sought to collect a debt of $594.71 on an account originally
owned by “Wachovia/Wells Fargo.” Docket No. 2 at
3, ¶ 19. In the letter, defendant indicated that
“a recommendation to file a lawsuit to collect this
debt is being processed.” Docket No. 2 at 3, ¶ 21.
The letter also stated that the debt could be reported to a
company called ChexSystems, which could lead to a suspension
of plaintiff's bank accounts and debit card privileges
for up to five years. Id. According to plaintiff,
defendant knew that it could not legally enforce the debt
through litigation at the time the letter was sent because
the applicable statute of limitations expired in April 2012.
Id. at 4, ¶¶ 24-30. According to
plaintiff, defendant also knew that it could not report the
debt to ChexSystems because more than seven years had elapsed
since plaintiff last made payment on the debt. Id.
at 5-6, ¶¶ 36-42.
brings a claim for relief for violation of the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C.
§ 1692 et seq. Docket No. 2. Although served
with the complaint and summons, defendant did not answer or
otherwise respond to plaintiff's complaint. Accordingly,
the Clerk of Court entered default on August 1, 2018. Docket
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).
While the FDCPA forbids a variety of conduct,
The substantive heart of the FDCPA lies in three broad
prohibitions. First, a ‘debt collector may not engage
in any conduct the natural consequence of which is to harass,
oppress, or abuse any person in connection with the
collection of a debt.' § 1692d. Second, a
‘debt collector may not use any false, deceptive, or
misleading representation or means in connection with the
collection of any debt.' § 1692e. Third, a
‘debt collector may not use unfair or unconscionable
means to collect or attempt to collect any debt.' §
Johnson v. Riddle, 305 F.3d 1107, 1117 (10th Cir.
2002). To establish a violation of the FDCPA, 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),
(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). In analyzing FDCPA claims,
debt collectors' communications are generally viewed from
the perspective of how the least sophisticated consumer would
interpret the notice received from the debt collector.
Irvine v. I.C. Sys., Inc., 176 F.Supp.3d 1054, 1060
(D. Colo. 2016), reconsideration denied, 198
F.Supp.3d 1232 (D. Colo. 2016) (citing Clomon v.
Jackson, 988 F.2d 1314, 1318 (2d Cir. 1993)).
Court finds that the complaint, deemed admitted for the
purposes of this motion, sufficiently alleges a violation of
the FDCPA. Plaintiff alleges that he is a consumer who
incurred a debt for personal, family, or household purposes.
See Docket No. 2 at 2, ¶¶ 6-7. Plaintiff
further alleges that defendant is a “debt
collector” as defined by the FDCPA. Id.,
¶¶ 9-13. Moreover, plaintiff's allegations
support a finding that defendant threatened to take action
that cannot legally be taken in violation of 15 U.S.C. §
1692e(5). Plaintiff alleges that defendant could not take
legal action to enforce the debt because it is barred by the
statute of limitations. Plaintiff last made a payment on the
debt, which was for an overdrawn bank account, in April 2009.
See Docket No. 2 at 2-3, ¶¶ 6, 22. The
statute of limitations on actions to recover a debt in
Colorado is six years and begins to run on the date that the
debt first becomes due. See Colo. Rev. Stat. §
13-80-103.5; Hassler v. Account Brokers of Larimer Cty.,
Inc., 274 P.3d 547, 549 (Colo. 2012). Although
plaintiff does not specifically allege that the debt became
due at a certain point, it is a reasonable inference that ...