United States District Court, S.D. Alabama, Southern Division
CALLIE V. S. GRANADE, District Judge.
This matter is before the court on plaintiff's motion for default judgment. (Doc. 12). Default has previously been entered against defendant, Bradley Financial Group. (Doc. 10). Because defendant has not appeared, it is not entitled to notice of the pending motion. FED. R. CIV. P. 55(b)(2). The complaint reflects the existence of federal question jurisdiction as plaintiff asserts claims under the Federal Debt Collections Practices Act (FDCPA). (Doc. 1, ¶¶ 1, 18-24).
"The defendant, by his default, admits the plaintiff's well-pleaded allegations of fact.... A default judgment is unassailable on the merits but only so far as it is supported by well-pleaded allegations, assumed to be true." Nishimatsu Construction Co. v. Houston National Bank , 515 F.2d 1200, 1206 (5th Cir. 1975). Thus, "a default judgment cannot stand on a complaint that fails to state a claim." Chudasama v. Mazda Motor Corp. , 123 F.3d 1353, 1371 n.41 (11th Cir. 1997). Rather, "before entering a default judgment for damages, the district court must ensure that the well-pleaded allegations of the complaint... actually state a cause of action and that there is a substantive, sufficient basis in the pleadings for the particular relief sought." Tyco Fire & Security, LLC v. Alcocer , 218 Fed.Appx. 860, 863 (11th Cir. 2007) (emphasis in original).
A. Claims Asserted
In the complaint, plaintiff details allegations concerning collection efforts relating to two loans that she obtained in 2009 that she thought she paid off in full shortly thereafter. (Doc. 1, ¶¶ 4-5). Plaintiff reports that she was subsequently contacted by a collection agency and she paid additional amounts and received letters stating that they had been paid in full. (Doc. 1, ¶¶ 5-7). However, plaintiff continued to receive calls from collection agencies. (Doc. 1, ¶¶ 9-10). The complaint details calls plaintiff reportedly received from the defendant making false statements that she still had an outstanding obligation, that she was being sued and would be served, and that her wages would be garnished immediately. (Doc. 1, ¶¶ 10-12). Plaintiff told defendant that she had already paid the loans in full, but defendant insisted that plaintiff owed money and that her wages would be garnished, so plaintiff agreed to three payments from her credit card. (Doc. 1, ¶¶ 12, 13). Plaintiff sent a letter informing defendant that the obligation was paid in full and demanding that defendant not process the last payment; nor contact her about the debt. (Doc. 1, ¶ 14). Defendant thereafter left a voicemail on plaintiff's phone stating that plaintiff's letter could not be understood because of grammatical errors and that they had recorded her agreement to make the payment and would "send it back out to legal." (Doc. 1, ¶ 15).
The complaint asserts four counts. Under Count One of the complaint (Doc. 1), plaintiff alleges that the defendant is a "debt collector" as defined by the FDCPA and that defendant in connection with its attempts to collect a debt violated the FDCP in the following ways:
A. Engaging in communication with Plaintiff, the natural consequence of which is to harass, oppress, or abuse Plaintiff in connection with the collection of a debt. This is a violation of 15 U.S.C. § 1692d.
B. Making repeated attempts to collect upon a debt prior to notifying Plaintiff that she has the right to dispute the validity of the debt and the right to request written verification of the debt as required by 15 U.S.C. § 1692g(a);
C. Attempting to collect amounts which are not authorized by any contract or permitted by law. This is a violation of 15 U.S.C. § 1692f(1);
D. The use of false representation and/or deceptive means to collect or attempt to collect a debt. 15 U.S.C. § 1692e(10);
E. Making attempts to collect, including threats of litigation and initiating litigation, on a debt which Defendant knew or should have known has no basis in law or fact. This is a violation of 15 U.S.C. § 1692f, 1692e(2)(A).
F. Attempting to collect a debt by use of threats of future actions which Defendant could not take or had no intention of taking in violation of 15 U.S.C. § 1692e(5);
G. Attempting to collect a debt by use of false, deceptive and/or misleading statements aimed at coercing the Plaintiff to pay the debt in violation of 15 U.S.C. § 1692e;
H. Making the false representation or implication that Plaintiff is about to be served with legal process in connection with a debt. This is ...