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Lee v. Halsted Financial Services, LLC

United States District Court, N.D. Indiana, Hammond Division

December 13, 2016

DEBBIE LEE, Plaintiff,
v.
HALSTED FINANCIAL SERVICES, LLC, Defendant.

          OPINION AND ORDER

          JAMES T. MOODY JUDGE

         I. BACKGROUND

         On January 16, 2015, plaintiff Debbie Lee filed suit against defendant Halsted Financial Services, LLC, for alleged violations of the Fair Debt Collections Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. (DE # 1.) A summons returned executed by plaintiff indicates that defendant was served February 3, 2015. (DE # 4.) By rule, defendant had 21 days after service of the summons and complaint to file a responsive pleading. See Fed. R. Civ. P. 12(a)(1)(A)(i). To date, defendant has not filed any responsive pleading or otherwise appeared in this case. At plaintiff's request, the Clerk entered defendant's default on April 20, 2015. (DE # 6.) Plaintiff filed this motion for default judgment on March 21, 2016 (DE # 10), to which defendant has not responded. Plaintiff seeks statutory damages, attorneys' fees and costs, and actual damages for emotional distress.

         II. LEGAL STANDARD

         The court may enter default judgment against a party against whom affirmative relief is sought when it fails to plead or otherwise defend. Fed.R.Civ.P. 55(b)(2). “The grant or denial of a motion for the entry of a default judgment lies within the sound discretion of the trial court . . . .” Dundee Cement Co. v. Howard Pipe & Concrete Prods. Inc., 722 F.2d 1319, 1322 (7th Cir. 1983). If the court determines that the defendant is in default, all well-pleaded allegations of the complaint, except those relating to the amount of damages, will be taken as true. Black v. Lane, 22 F.3d 1395, 1399 (7th Cir. 1994). The court may hold a hearing or conduct an investigation to determine the amount of damages, Fed.R.Civ.P. 55(b)(2), however, no investigation is needed if “the amount claimed is liquidated or capable of ascertainment from definite figures contained in the documentary evidence or in detailed affidavits.” Dundee Cement Co., 722 F.2d at 1323.

         III. FACTS

         Based on defendant's default, the court takes the allegations in the complaint as true. Plaintiff's affidavit, submitted with this motion, further establishes the veracity of the allegations made in her complaint.

         On or about July 25, 2014, an employee, agent, or other representative of defendant, who identified himself as “Mr. Bell, ” telephoned plaintiff in an attempt to collect an alleged debt.[1] (DE # 10-2 ¶ 5.) Plaintiff informed Mr. Bell that she was represented by a law firm with respect to the alleged debt. (Id.) She also provided her attorney's contact information. (Id.) Defendant then placed additional telephone calls to plaintiff, attempting to collect the alleged debt, on or about July 26, 28, and 29, 2014. (Id. ¶ 6.) During at least one of those additional calls, plaintiff spoke with Mr. Bell and reminded him that she was represented by a law firm with respect to the alleged debt. (Id. ¶ 7.)

         Plaintiff also alleges that she has a history of severe anxiety. (Id. ¶ 8.) She says she “suffered from anxiety attacks” as a result of defendant's telephone calls. (Id. ¶ 9.)

         IV. LEGAL CONCLUSIONS

         The court has subject matter jurisdiction under 15 U.S.C. § 1692k(d) and 28 U.S.C. § 1331 and venue is proper under 28 U.S.C. § 1391(b)(2). Personal jurisdiction is established over defendant due to defendant's minimum contacts with Indiana (defendant called plaintiff in Indiana, on multiple occasions, to collect the alleged debt).

         Plaintiff's complaint alleges three violations of the FDCPA. First, plaintiff contends defendant violated 15 U.S.C. § 1692c(a)(2) which states that “a debt collector may not communicate with a consumer in connection with the collection of any debt . . . if the debt collector knows the consumer is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney's name and address.” When plaintiff was called by defendant on July 25, 2014, she informed Mr. Bell (and therefore, defendant) that she was represented by an attorney with respect to the alleged debt and provided the attorney's contact information. Accordingly, defendant had knowledge of the attorney representation when it called plaintiff multiple times after July 25. Mr. Bell, in particular, placed one of the later calls despite having direct knowledge that plaintiff was represented by counsel. Therefore, the court finds defendant violated § 1692c(a)(2) of the FDCPA.

         Second, plaintiff alleges that defendant violated 15 U.S.C. § 1692d. Section 1692d provides that 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. Plaintiff provides no further explanation as to the manner in which she believes defendant's conduct violated this section of the FDCPA, and she does not allege facts suggesting that the natural consequence of defendant's calls would be to harass, oppress, or abuse plaintiff. Defendant provides no evidence or allegations that defendant's operatives stated anything in the telephone calls aside from their intentions to collect a debt. Such statements on their own do not indicate harassment, oppression, or abuse.

         Section 1692d, itself, contains a non-exhaustive list of six actions which violate the section. The only relevant item is number (5) which provides that it is a violation when an individual acts by “causing 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.” § 1692d(5). Courts have generally found intent in two types of situations: (1) where the plaintiff has shown that he asked the defendant to stop calling or has informed the defendant that it has the wrong number; and (2) ...


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