United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
T. MOODY JUDGE
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.
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
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.
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. (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.
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.)
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).
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.
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.
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) ...