Federal Trade Commission v. Hardco Holding Group LLC et al

Filing 75

ORDER adopting 70 REPORT AND RECOMMENDATIONS re 69 Second MOTION for default judgment against Dequan M. Sicard filed by Federal Trade Commission., and DENYING 72 MOTION for relief from judgment re 67 Order on Motion for Permanent Injunction filed by Dequan M. Sicard. See PDF for full details. Signed by Judge Roy B. Dalton, Jr. on 1/23/2018. (JLC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
FEDERAL TRADE COMMISSION,
Plaintiff,
v.

Case No. 6:17-cv-1257-Orl-37TBS

DEQUAN M. SICARD,
Defendant.
_____________________________________
ORDER
Plaintiff Federal Trade Commission (“FTC”) commenced this action against
Defendants Dequan M. Sicard (“Sicard”) and Hardco Holding Group, LLC, S&H
Financial Group, Inc., and Daryl M. Hall (collectively, “Co-Defendants”) under the
Federal Trade Commission Act, 15 U.S.C. § 53(b) (“FTCA”) and Fair Debt Collection
Practices Act, 15 U.S.C. § 16921(a) (“FDCPA”) alleging that they engaged in a scheme to
defraud consumers. (Doc. 1 (“Complaint”).) Among other things, the FTC sought
temporary, preliminary, and permanent injunctive relief and restitution. (Id. ¶ 1.)
After properly being served, Sicard failed to timely answer or otherwise respond,
so the FTC sought the clerk’s entry of default against him. (Doc. 51.) That was granted
(Doc. 52), and following Sicard’s continued failure to timely defend the action, the FTC
moved for default judgment against him and requested entry of a permanent injunction
against Sicard. (Doc. 69 (“Motion).)
On referral, U.S. Magistrate Judge Thomas B. Smith recommended granting the
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Motion in part, by entering a permanent injunction against Sicard and finding him jointly
liable with Co-Defendants for $702,059.00. (Doc. 70 (“R&R”).) Sicard, currently
incarcerated and proceeding pro se, did not object to the R&R, but separately filed a
motion for relief from default judgment and the Court’s order entering a permanent
injunction against Co-Defendants—which did not apply to Defendant. (Doc. 72
(“Response”).) The FTC opposed, construing the Response as an objection to the R&R.
(Doc. 74.) The Court agrees that the Response should be construed as an objection, and,
on de novo review, finds that the R&R is due to be adopted and the Response denied.
I.

LEGAL STANDARDS

When a party objects to a magistrate judge’s findings, the district court must
“make a de novo determination of those portions of the report . . . to which objection is
made.” 28 U.S.C. § 636(b)(1). The district court “may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate judge.” Id. The
district court must consider the record and factual issues based on the record
independent of the magistrate judge’s report. Ernest S. ex rel. Jeffrey S. v. State Bd. of Educ.,
896 F.2d 507, 513 (11th Cir. 1990).
II.

PROCEDURAL H ISTORY

The FTC commenced this action on July 10, 2017, alleging that Sicard and CoDefendants engaged in a pattern of deceptive and abusive debt collection practices that
defrauded consumers of more than $690,000. (Doc. 1, ¶¶ 12–27.) With the Complaint, the
FTC moved ex parte for a temporary restraining order (Doc. 4 (“TRO”)), which the Court
granted that same day (Doc. 15.) The FTC also sought a preliminary injunction against all
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defendants, which the Court set for a hearing. (Id. ¶¶ XXIV.) Before that hearing, the FTC
filed a consent motion with Co-Defendants stipulating to the entry of a preliminary
injunction. (Doc. 27.) At the hearing—where Sicard did not appear, despite notice and an
opportunity to appear telephonically—the Court addressed the proposed preliminary
injunction and inquired about the appointed Receiver’s opinion about its sufficiency.
(Doc. 32.) Finding it sufficient, the Court then preliminarily enjoined Co-Defendants and
separately entered a preliminary injunction against Sicard. (Docs. 35, 36.)
The case progressed, and Co-Defendants filed an answer to the Complaint.
(Doc. 39.) Sicard did not. At the appropriate time, the FTC moved for an entry of default
against Sicard (Doc. 51), which was granted (Doc. 52.) Co-Defendants and the FTC then
moved to stay the case pending consideration of a settlement agreement (Doc. 57), which
the Court allowed (Doc. 59). The case against Co-Defendants was therefore
administratively closed. (See id.)
On November 20, 2017, Sicard submitted his first filings in the case: (1) a motion
seeking to extend his time to answer the Complaint until May 9, 2018; and (2) a motion
to dissolve the then-defunct Temporary Restraining Order. (Docs. 60, 61.) Finding
Sicard’s extension motion deficient, Magistrate Judge Smith denied Sicard’s request in a
comprehensive order that explained filing procedures, given Sicard’s pro se status.
(Doc. 61.) Following this, Sicard made no attempt to file a corrected version of that
motion. The FTC the moved for default judgment against Sicard (Doc. 64), which
Magistrate Judge Smith denied without prejudice based on a computational error (Doc.
68).
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Meanwhile, the FTC

reached a stipulated permanent injunction with

Co-Defendants and moved for the Court’s approval. (Doc. 66.) This was granted, so
resolving all claims against Co-Defendants. (Doc. 67.) Turning its efforts toward Sicard,
the sole remaining defendant, the FTC renewed its motion for default judgment with a
corrected judgment amount. (Doc. 69.) As support, the FTC relied on the facts alleged in
its Complaint—which Sicard admitted by virtue of his default—to establish his
participation in a debt collection scheme that violated the FTCA and FDCPA. (Doc. 69-1,
pp. 3–7.) Sicard, as a key perpetrator of the scheme, was liable for these violations along
with Co-Defendants, so the FTC argued it was entitled to injunctive and equitable
monetary relief. (Id. at 8–10.) The FTC also contended that the scope of its proposed order
for permanent injunctive relief was appropriate in light of Sicard’s conduct. (Id. at 10–14.)
Sicard failed to respond.
Magistrate Judge Smith then issued his R&R finding default judgment against
Sicard appropriate and recommending that the Court issue the permanent injunction.
(Doc. 70.) On careful review, however, he found that the FTC’s proposed monetary
judgment did not reflect the joint and several nature of Sicard’s liability with
Co-Defendants. (Id. at 9–10.) Rather, he found that the FTC’s proposed judgment—
seeking $702,059 from Sicard, the same amount it sought from Co-Defendants—ran afoul
of the “one satisfaction rule” and would allow for duplicative recovery. (Id. at 10.) To cure
this, Magistrate Judge Smith recommended modifying the judgment against Sicard by
finding him jointly liable with Co-Defendants for $702,059 and leave collection matters
outside the terms of the judgment. (Id.)
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The FTC did not object to the R&R, but Sicard filed a motion seeking relief from
default judgment and the entry of a permanent injunction. (Doc. 72.) The FTC responded
in support of the R&R. The matter is therefore ripe for review.
III.

D ISCUSSION

Sicard seems to generally oppose the entry of default and opposes the FTC’s
motion for default judgment against him, as well as the entry of a permanent injunction
against him. (Id.) His Response does not address the R&R, but the Court will nonetheless
construe this as an objection. 1 Upon review, the Court finds Sicard’s arguments
unavailing. Thus the R&R is due to be adopted and Sicard’s Response denied.
A.

Entry of Default

Federal Rule of Civil Procedure 55(a) allows entry of default against a party who
has failed to plead or otherwise defend. Entry of default may be set aside for “good
cause,” which is a variable standard that takes into account whether: (1) the default was
culpable or willful; (2) the defaulting party has a meritorious defense; or (3) the defaulting
party acted promptly to correct the default. See F.R.C.P. 55(c); Compania Interamericana
Export-Import, S.A. v. Compania Dominicana de Aviacion, 88 F.3d 948, 951 (11th Cir. 1996).
“[I]f a party willfully defaults by displaying either an intentional or reckless disregard for
judicial proceedings, the court need make no other findings in denying relief.” Id. at 951–
52 (citation omitted).

Sicard styles his motion as seeking “relief from default judgment,” but because
no default judgment has been entered against him, the Court liberally construes this to
challenge the entry of default against him.
1

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Here, entry of default was warranted because Sicard failed to answer or otherwise
defend this action. (See Docs. 51, 52.) Nonetheless, Sicard seeks to set this aside, claiming:
(1) “excusable neglect” due to his current incarceration; (2) “meritorious defenses”; and
(3) “due diligence.” (Doc. 72.) But none of these arguments demonstrate good cause to
set aside the entry of default. Rather, the Court finds that Sicard willfully defaulted by
failing to timely respond to the FTC’s numerous filings, despite knowledge of this
proceeding and the FTC’s diligent attempts to induce his cooperation. (See, e.g., Doc. 21
(FTC filing a motion on Sicard’s behalf to allow him to appear telephonically at a hearing,
which Sicard did not attend); Doc. 45 (reflecting FTC performed in-person service for
Sicard).) Thus, the entry of default against Sicard remains.
B.

Default Judgment

Next, the Court finds that default judgment is appropriate here. Under Federal
Rule of Civil Procedure 55(b)(2), a court may enter default judgment against a properlyserved defendant who fails to appear or otherwise defend an action against him. Through
default, a defendant “admit[s] the plaintiff’s well-pleaded allegations of fact” for liability
purposes. Buchanan v. Bowman, 820 F.3d 359, 361 (11th Cir. 1987). So long as the factual
allegations of the complaint provide a sufficient legal basis to support entry of default
judgment, a court may do so. See Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc.,
561 F.3d 1298, 1307 (11th Cir. 2009). To that end, a complaint must be founded on “wellpleaded allegations.” Id.
Here, as established above, Sicard failed to answer or otherwise defend this action.
Therefore, default is appropriate so long as the Complaint’s allegations are well-plead.
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Against this standard, the Complaint clearly suffices. It alleges that Sicard, along with
Co-Defendants, engaged in a scheme to defraud consumers “through the collection of
payments for debts that consumers do not actually owe or that Defendants do not have
authority to collect” since at least June 2015. (Doc. 1, ¶ 12.) It details how the scheme
operated, Sicard’s role, and how such conduct violates the FTCA and FDCPA. (See id. ¶¶
9, 12–44.) All in all, the Complaint’s well-pleaded allegations support default judgment
against Sicard and none of Sicard’s previously-discussed arguments persuade the Court
otherwise.
C.

Relief

Having established that default judgment is appropriate here, the only remaining
issue is what relief to award. The FTC seeks equitable relief in the form of injunctive and
monetary relief, as provided for by § 13(b) of the FTCA, 15 U.S.C. § 53(b), and Section
814(a) of FDCPA, 15 U.S.C. § 16921(a), to prevent Sicard from engaging in a variety of
behavior related to debt collection. (See Docs. 1, ¶ 46; 64-4.) Looking at the Complaint and
the Court’s findings when it issued the TRO, preliminary injunction, and stipulated order
entering a permanent injunction against Co-Defendants, Magistrate Judge Smith found
the injunctive relief acceptable, and the monetary judgment appropriate to the extent
Sicard is held jointly and severally liable with Co-Defendants for $702,059. (Doc. 70,
pp. 8–10.) Sicard has not rebutted this finding. Therefore, the Court finds that both
injunctive and monetary relief are appropriate to the extent identified in the R&R.
IV.

PERMANENT INJUNCTION AND MONETARY RELIEF

The Court, having considered the memoranda and exhibits filed in support of
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said motion, and all other pleadings and files in this action, and now being fully
advised in the premises, GRANTS the FTC’s Motion and HEREBY ORDERS,
ADJUDGES, AND DECREES as follows:
FINDINGS
1.

The FTC brings this action pursuant to Section 13(b) of the FTC Act, 15 U.S.C. §
53(b), and Section 814 of the Fair Debt Collection Practices Act (“FDCPA”), 15
U.S.C. § 1692l. The FTC seeks both permanent injunctive relief and
disgorgement of unjust enrichment for alleged deceptive and unfair acts or
practices by Defendant Sicard in connection with the collection of purported
consumer debt.

2.

The FTC has the authority under Section 13(b) of the FTC Act and Section 814 of
the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692l, to seek the
relief it has requested.

3.

This Court has jurisdiction over the subject matter of this action and has
jurisdiction over Defendant Sicard. Venue in the Middle District of Florida is
proper, and the Complaint states a claim upon which relief may be granted
against Defendant Sicard under Section 13(b) of the FTC Act and Section 814 of
the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692l.

4.

The activities of Defendant Sicard, as alleged in the Complaint, were in or
affecting commerce, as defined in Section 4 of the FTC Act, 15 U.S.C. § 44.
Defendants are “debt collectors” collecting “debts,” as those terms are defined in
Sections 803(6) and 803(5) of the FDCPA, 15 U.S.C. §§ 1692a(6) and (5).
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5.

Process and service of process as to Defendant Sicard is proper.

6.

Defendant Sicard is not an infant or an incompetent or in military service or
otherwise exempted under the Soldiers’ and Sailors’ Civil Relief Act of 1940.

7.

Defendant Sicard failed to file a timely answer or otherwise file any timely
response to the Complaint. Accordingly, Defendant Sicard is in default.

8.

Since at least 2015, Defendants, acting in common enterprise, operated a multimillion dollar debt collection scheme that successfully swindled over $700,000
dollars from unsuspecting and terrified consumers. Defendants contacted
consumers and third parties falsely claiming that a lawsuit had been filed against
the consumer. When consumers tried to learn more about the purported
lawsuits, Defendants’ collectors threatened consumers with arrest or other legal
action if they did not send funds for a purported payday loan or other debt. In
fact, either consumers did not owe any debt or, in situations where consumers
did have an outstanding debt, Defendants had no authority to collect that debt.
In either case, Defendants merely pocketed the money they collected from
intimidated consumers.

9.

As alleged in Counts I, II, V(a), V(b), V(c), V(d), and V(e) of the Complaint, in
numerous instances, Defendants used false and misleading representations to
collect debts, including claiming that consumers were delinquent on a payday
loan or other debt that Defendants had authority to collection; consumers had a
legal obligation to pay Defendants; consumers would be arrested for failing to
pay; and Defendants had filed or would file legal action against consumers.
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These misleading representations were likely to mislead consumers acting
reasonably under the circumstances. Therefore, Defendants’ practices constitute
a deceptive act or practice in violation of Section 5(a) of the FTC Act, 15 U.S.C. §
45(a). In making these representations, Defendants also (a) misrepresented the
character, amount, or legal status of a debt in violation of Section 807(2)(A) of the
FDCPA, 15 U.S.C. § 1692e(2)(A); (b) misrepresented that any individual is an
attorney or that any communication is from an attorney in violation of Section
807(3) of the FDCPA, 15 U.S.C. § 1692e(3); (c) misrepresented that nonpayment of
a debt would result in the arrest or imprisonment of any person or the seizure,
garnishment, attachment, or sale of any property or wages of any person in
violation of Section 807(4) of the FDCPA, 15 U.S.C. § 1692e(4); (d) threatened to
take any action that could not legally be taken or that was not intended to be
taken in violation of Section 807(5) of the FDCPA, 15 U.S.C. § 1692e(5); and (e)
used false representations or deceptive means to collect or attempt to collect a
debt in violation of Section 807(10) of the FDCPA, 15 U.S.C. § 1692e(10).
10.

As alleged in Count III of the Complaint, in numerous instances, Defendants
engaged in unlawful communications with third parties in violation of Section
805(b) of the FDCPA, 15 U.S.C. §1692c(b).

11.

As alleged in Count IV of the Complaint, in numerous instances, Defendants
placed telephone calls to consumers without meaningful disclosure of their
identity in violation of Section 806(6) of the FDCPA, 15 U.S.C. § 1692d(6).

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12.

As alleged in Count V(f) of the Complaint, in numerous instances, Defendants
failed to disclose in their initial communications with consumers that the debt
collector is attempting to collect a debt and that any information obtained would
be used for that purpose, and failed to disclose in subsequent communications
that the communication was from a debt collection, in violation of Section 807(11)
of the FDCPA, 15 U.S.C. § 1692e(11).

13.

As alleged in Count V(g) of the Complaint, in numerous instances, Defendants
used business, company, or organization names other than their true names in
violation of Section 807(14) of the FDCPA, 15 U.S.C. § 1692e(14).

14.

As alleged in Count VI of the Complaint, in numerous instances, Defendants
failed to provide consumers with required validation notices in violation of
Section 809(a) of the FDCPA, 15 U.S.C. § 1692g(a).

15.

Defendant Sicard is the de facto principal and manager of the Corporate
Defendants. He is listed as the vice president of Defendant S & H Financial
Group, Inc. on corporate records, and as the president on merchant account
applications. He has signatory authority over the Corporate Defendants’ bank
accounts and their telephone service. Defendant Sicard formulated, directed,
controlled, had the authority to control, or participated in Defendants’ unlawful
debt collection practices, including the acts and practices that constituted the
common enterprise.

16.

Defendants have caused consumer injury in the amount of at least $702,059.

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17.

Section 13(b) of the FTC Act, 15 U.S.C. § 53(b), and Section 814(a) of the FDCPA,
15 U.S.C. § 1692l(a), empower this Court to issue injunctive and other relief
against violations of the FTC Act and the FDCPA, and in the exercise of its
equitable jurisdiction, to order restitution and the disgorgement of profits
resulting from Defendants’ unlawful acts or practices, and issue other ancillary
equitable relief.

18.

Defendant Sicard is likely to continue to engage in the activities alleged in the
Complaint or otherwise violate Section 5 of the FTC Act and the FDCPA, unless
he is prohibited from doing so by order of the Court. Accordingly, it is proper in
this case to issue a permanent injunction that: (a) bans Defendant Sicard from (i)
participating in debt collection activities, and (ii) advertising, marketing,
promoting, offering for sale, selling, or buying any consumer or commercial debt
or any information regarding a consumer relating to a debt; (b) prohibits
Defendant Sicard from making certain misrepresentations concerning any
financial-related product or service, including misrepresenting any material fact
in connection with the advertising, marketing, promotion, or sale of a financialrelated product or service, such as the terms or rates available for a loan, or the
savings a consumer will receive from purchasing a debt relief service; (c)
prohibits Defendant Sicard from disclosing, using, or benefitting from previously
obtained consumer information, such as consumers’ names, addresses, telephone
numbers, email addresses, social security numbers, other identifying
information, or any data that enables access to a customer’s account (including a
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credit card, bank account, or other financial account); and (d) provides for
monitoring by the FTC of Defendant Sicard’s compliance with such a permanent
injunction.
19.

It is proper in this case to enter an equitable monetary judgment against
Defendant Sicard for his violations of Section 5 of the FTC Act and the FDCPA.
Defendants who have violated Section 5 of the FTC Act can be held jointly and
severally liable for the total amount of the consumer injury. The FTC is entitled
to judgment against Defendant Sicard in the amount of $702,059, the injury
caused to consumers by Defendants, even though this amount may exceed his
unjust enrichment.

20.

This action and the relief awarded herein are in addition to, and not in lieu of,
other remedies as may be provided by law, including both civil and criminal
remedies.

21.

The entry of this Order is in the public interest.
DEFINITIONS
For the purpose of this Order, the following definitions apply:

A.

“Credit Repair Service” means selling, providing, or performing any service (or
representing that such service can or will be sold, provided, or performed)
through the use of any instrumentality of interstate commerce or the mails, in
return for the payment of money or other valuable consideration, for the express
or implied purpose of (1) improving any consumer’s credit record, credit history,
or credit rating, (2) providing advice or assistance to any consumer with regard
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to any activity or service described in clause (1).

B.

“Debt” means any obligation or alleged obligation to pay money arising out of a
transaction, whether or not such obligation has been reduced to judgment.

C.

“Debt Collection Activities” means any activities of a debt collector to collect or
attempt to collect, directly or indirectly, a debt owed or due, or asserted to be
owed or due.

D.

“Debt Collector” means any person who uses any instrumentality of interstate
commerce or the mail in any business the principal purpose of which is the
collection of any debts, or who regularly collects or attempts to collect, directly or
indirectly, debts owed or due or asserted to be owed or due another. The term
also includes any creditor who, in the process of collecting its own debts, uses
any name other than its own which would indicate that a third person is
collecting or attempting to collect such debts. The term also includes any person
to the extent such person collects or attempts to collect any debt that was in
default at the time it was obtained by such person.

E.

“Defendant Sicard” means Dequan Sicard and by whatever names might be
known.

F.

“Defendants” means Hardco Holding Group LLC, S&H Financial Group Inc.,
Daryl Hall, and Dequan Sicard, individually, collectively, or in any combination.

G.

“Financial-Related Product or Service” means any product, service, plan, or
program represented, expressly or by implication, to provide to any consumer,
arrange for any consumer to receive, or assist any consumer in receiving:
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1. An extension of consumer credit;
2. Credit repair services; or
3. Any secured or unsecured debt relief product or service.

H.

“Person” means a natural person, organization, or other legal entity, including a
corporation, partnership, proprietorship, association, cooperative, or any other
group or combination acting as an entity.

I.

“Secured or Unsecured Debt Relief Product or Service” means, with respect to
any mortgage, loan, debt, or obligation between a person and one or more
secured or unsecured creditors or debt collectors, any product, service, plan, or
program represented, expressly or by implication to:
1.

Negotiate, settle, or in any way alter the terms of payment or other terms
of the mortgage, loan, debt, or obligation, including but not limited to, a
reduction in the amount of interest, principal balance, monthly payments,
or fees owed by a person to a secured or unsecured creditor or debt
collector;

2.

Stop, prevent, or postpone any mortgage or deed of foreclosure sale for a
person’s dwelling, any other sale of collateral, any repossession of a
person’s dwelling or other collateral, or otherwise save a person’s
dwelling or other collateral from foreclosure or repossession;

3.

Obtain any forbearance or modification in the timing of payments from
any secured or unsecured creditor or debt collector;

4.

Negotiate, obtain, or arrange any extension of the period of time within
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which the person by (a) cure his or her default on the mortgage, loan,
debt, or obligation, (b) reinstate his or her mortgage, loan, debt, or
obligation, (c) redeem a dwelling or other collateral, or (d) exercise any
right to reinstate the mortgage, loan, debt, or obligation or redeem a
dwelling or other collateral;
5.

Obtain any waiver of an acceleration clause or balloon payment contained
in any promissory note or contract secured by any dwelling or other
collateral; or

6.

Negotiate, obtain, or arrange, (a) a short sale of a dwelling or other
collateral, (b) a deed-in-lieu of foreclosure, or (c) any other disposition of a
mortgage, loan, debt, or obligation other than a sale to a third party that is
not the secured or unsecured loan holder.

The foregoing shall include any manner of claimed assistance, including, but not
limited to, auditing or examining a person’s application for the mortgage, loan,
debt, or obligation.
ORDER
BAN ON DEBT COLLECTION ACTIVITIES
I.

IT IS THEREFORE ORDERED that the Defendant Sicard, whether acting
directly or through any other person, is permanently restrained and enjoined
from:
A. Participating in debt collection activities; and
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B. Advertising, marketing, promoting, offering for sale, selling, or buying any
consumer or commercial debt or any information regarding a consumer
relating to a debt.
PROHIBITION AGAINST MISREPRESENTATIONS RELATING TO FINANCIALRELATED PRODUCTS OR SERVICES
II.

IT IS FURTHER ORDERED that Defendant Sicard and his officers, agents, and
employees, and all other persons in active concert or participation with any of
them, who receive actual notice of this Order, whether acting directly or
indirectly, in connection with promoting or offering for sale any financial-related
product or service are permanently restrained and enjoined from:
A.

Misrepresenting or assisting others in misrepresenting, expressly or by
implication, any material fact, including but not limited to:
1.

The terms or rates that are available for any loan or other extension
of credit;

2.

Any aspect of any credit repair service, including but not limited to
(a) any person’s ability to improve or otherwise affect a consumer’s
credit record, credit history, or credit rating or ability to obtain
credit; or (b) that any person can improve any consumer’s credit
record, credit history, or credit rating by permanently removing
negative information from the consumer’s credit record, credit
history, or credit rating, even where such information is accurate
and not obsolete;
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3.

Any aspect of any secured or unsecured debt relief product or
service, including but not limited to (a) the amount of savings a
consumer will receive from purchasing, using, or enrolling in such
secured or unsecured debt relief product or service; (b) the amount
of time before which a consumer will receive settlement of that
consumer’s debts; or (c) the reduction or cessation of collection
calls;

4.

That a consumer will receive legal representation; and

5.

That any particular outcome or result from a financial-related
product or service is guaranteed, assured, highly likely or probable,
or very likely or probable; and

B.

Advertising or assisting others in advertising credit terms other than those
terms that actually are or will be arranged or offered by a creditor or
lender.

PROHIBITION AGAINST MISREPRESENTATIONS RELATING TO ANY
PRODUCTS OR SERVICES
III.

IT IS FURTHER ORDERED that Defendant Sicard and his officers, agents, and
employees, and all other persons in active concert or participation with any of
them, who receive actual notice of this Order, whether acting directly or
indirectly, in connection with promoting or offering for sale any product or
service are permanently restrained and enjoined from misrepresenting or
assisting others in misrepresenting, expressly or by implication:
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A.

That any person is an attorney or affiliated or associated with an attorney
or law firm;

B.

That any person owes any debt;

C.

The nature or terms of any refund, cancellation, exchange, or repurchase
policy, including, but not limited to, the likelihood of a consumer
obtaining a full or partial refund, or the circumstances in which a full or
partial refund will be provided to the consumer; and

D.

Any other fact material to a consumer’s decision to purchase any good or
service, such as (1) the total costs to purchase, receive, or use, and the
quantity of, any good or service; (2) any material restriction, limitation, or
condition to purchase, receive, or use any good or service; or (3) any
material aspect of the performance, efficacy, nature, or central
characteristics of any good or service.
MONETARY JUDGMENT

IV.

IT IS FURTHER ORDERED that:
A.

Judgment in the amount of SEVEN HUNDRED AND TWO THOUSAND,
AND FIFTY NINE DOLLARS ($702,059) is entered in favor of the FTC
against Defendant Sicard, jointly and severally with Co-Defendants
Hardco Holding Group, LLC, S&H Financial Group, Inc, and Daryl M.
Hall, as equitable monetary relief.

B.

All money paid to the FTC pursuant to this Order may be deposited into a
fund administered by the FTC or its designee to be used for equitable
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relief, including but not limited to consumer redress and any attendant
expenses for the administration of any redress funds. If a representative of
the FTC decides that direct redress to consumers is wholly or partially
impracticable or money remains after redress is completed, the FTC may
apply any remaining money for such other equitable relief, including but
not limited to consumer information remedies, as the FTC determines to
be reasonably related to the practices alleged in the Complaint. Any
money not used for such equitable relief is to be deposited to the U.S.
Treasury as equitable disgorgement. Defendant Sicard has no right to
challenge any actions the FTC or its representatives may take pursuant to
this Subsection.
CUSTOMER INFORMATION
V.

IT IS FURTHER ORDERED that Defendant Sicard and his officers, agents, and
employees, and all other persons in active concert or participation with any of
them, who receive actual notice of this Order, whether acting directly or
indirectly, are permanently restrained and enjoined from directly or indirectly:
A.

Failing to provide sufficient customer information to enable the FTC to
administer efficiently consumer redress. If a representative of the FTC
requests in writing any information related to redress, Defendant Sicard
must provide it, in the form prescribed by the FTC, within 14 days.

B.

Disclosing, using, or benefitting from customer information, including the
name, address, telephone number, email address, social security number,
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other identifying information, or any data that enables access to a
customer’s account (including a credit card, bank account, or other
financial account), that any Defendant obtained prior to entry of this
Order in connection with any debt collection activities; and
C.

Failing to destroy such customer information in all forms in their
possession, custody, or control within 30 days after receipt of written
direction to do so from a representative of the FTC.

Provided, however, that customer information need not be disposed of, and may be
disclosed, to the extent requested by a government agency or required by law,
regulation, or court order.
ORDER ACKNOWLEDGMENTS
VI.

IT IS FURTHER ORDERED that Defendant Sicard obtains acknowledgments of
receipt of this Order:
A.

Defendant Sicard, within 7 days of entry of this Order, must submit to the
FTC an acknowledgment of receipt of this Order sworn under penalty of
perjury.

B.

For 20 years after entry of this Order, Defendant Sicard for any business
that he, individually or collectively with any other Defendant, is the
majority owner or controls directly or indirectly, must deliver a copy of
this Order to: (1) all principals, officers, directors, and LLC managers and
members; (2) all employees, agents, and representatives who participate in
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conduct related to the subject matter of the Order; and (3) any business
entity resulting from any change in structure as set forth in the Section
titled Compliance Reporting. Delivery must occur within 7 days of entry
of this Order for current personnel. For all others, delivery must occur
before they assume their responsibilities.
C.

From each individual or entity to which Defendant Sicard delivered a
copy of this Order, he must obtain, within 30 days, a signed and dated
acknowledgment of receipt of this Order.
COMPLIANCE REPORTING

VII.

IT IS FURTHER ORDERED that Defendant Sicard make timely submissions to
the FTC:
A.

One year after entry of this Order, Defendant Sicard must submit a
compliance report, sworn under penalty of perjury:
1.

Defendant Sicard must: (a) identify the primary physical, postal,
and email address and telephone number, as designated points of
contact, which representatives of the FTC may use to communicate
with him; (b) identify all of his businesses by all of their names,
telephone numbers, and physical, postal, email, and Internet
addresses; (c) describe the activities of each business, including the
goods and services offered, the means of advertising, marketing,
and sales, and the involvement of any other Defendant (which
Defendant Sicard must describe if he knows or should know due to
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his own involvement); (d) describe in detail whether and how he is
in compliance with each Section of this Order; and (e) provide a
copy of each Order Acknowledgment obtained pursuant to this
Order, unless previously submitted to the FTC.
2.

Additionally, Defendant Sicard must: (a) identify all telephone
numbers and all physical, postal, email and Internet addresses,
including all residences; (b) identify all business activities,
including any business for which he performs services whether as
an employee or otherwise and any entity in which he has any
ownership interest; and (c) describe in detail his involvement in
each such business, including title, role, responsibilities,
participation, authority, control, and any ownership.

B.

For 20 years after entry of this Order, Defendant Sicard must submit a
compliance notice, sworn under penalty of perjury, within 14 days of any
change in the following:
1.

Defendant Sicard must report any change in: (a) any designated
point of contact; or (b) the structure of any entity that he has any
ownership interest in or controls directly or indirectly that may
affect compliance obligations arising under this Order, including:
creation, merger, sale, or dissolution of the entity or any subsidiary,
parent, or affiliate that engages in any acts or practices subject to
this Order.
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2.

Additionally, Defendant Sicard must report any change in: (a)
name, including aliases or fictitious name, or residence address; or
(b) title or role in any business activity, including any business for
which he performs services whether as an employee or otherwise
and any entity in which he has any ownership interest, and identify
the name, physical address, and any Internet address of the
business or entity.

C.

Defendant Sicard must submit to the FTC notice of the filing of any
bankruptcy petition, insolvency proceeding, or similar proceeding by or
against him within 14 days of its filing.

D.

Any submission to the FTC required by this Order to be sworn under
penalty of perjury must be true and accurate and comply with 28 U.S.C. §
1746, such as by concluding: “I declare under penalty of perjury under
the laws of the United States of America that the foregoing is true and
correct. Executed on: _____” and supplying the date, signatory’s full
name, title (if applicable), and signature.

E.

Unless otherwise directed by an FTC representative in writing, all
submissions to the FTC pursuant to this Order must be emailed to
[e-mail] or sent by overnight courier (not the U.S. Postal Service)
to: Associate Director for Enforcement, Bureau of Consumer Protection,
Federal Trade Commission, 600 Pennsylvania Avenue NW, Washington,
DC 20580. The subject line must begin: FTC v. Hardco Holding Group,
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X170043.
RECORDKEEPING
VIII. IT IS FURTHER ORDERED that Defendant Sicard must create certain records
for 20 years after entry of the Order, and retain each such record for 5 years.
Specifically, Defendant Sicard for any business in which he, individually or
collectively with any other Defendant, is a majority owner or controls directly or
indirectly, must create and retain the following records:
A.

Accounting records showing the revenues from all goods or services sold;

B.

Personnel records showing, for each person providing services, whether
as an employee or otherwise, that person’s: name; addresses; telephone
numbers; job title or position; dates of service; and (if applicable) the
reason for termination;

C.

Records of all consumer complaints and refund requests, whether
received directly or indirectly, such as through a third party, and any
response;

D.

All records necessary to demonstrate full compliance with each provision
of this Order, including all submissions to the FTC; and

E.

A copy of each materially different advertisement or other marketing
material.
COMPLIANCE MONITORING

IX.

IT IS FURTHER ORDERED that, for the purpose of monitoring Defendant
Sicard’s compliance with this Order and any failure to transfer any assets as
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required by this Order:
A.

Within 14 days of receipt of a written request from a representative of the
FTC, Defendant Sicard must: submit additional compliance reports or
other requested information, which must be sworn under penalty of
perjury; appear for depositions; and produce documents for inspection
and copying. The FTC is also authorized to obtain discovery, without
further leave of court, using any of the procedures prescribed by Federal
Rules of Civil Procedure 29, 30 (including telephonic depositions), 31, 33,
34, 36, 45, and 69.

B.

For matters concerning this Order, the FTC is authorized to communicate
directly with Defendant Sicard. Defendant Sicard must permit
representatives of the FTC to interview any employee or other person
affiliated with him who has agreed to such an interview. The person
interviewed may have counsel present.

C.

The FTC may use all other lawful means, including posing, through its
representatives as consumers, suppliers, or other individuals or entities, to
Defendant Sicard or any individual or entity affiliated with thim, without
the necessity of identification or prior notice. Nothing in this Order limits
the FTC’s lawful use of compulsory process, pursuant to Sections 9 and 20
of the FTC Act, 15 U.S.C. §§ 49, 57b-1.

D.

Upon written request from a representative of the FTC, any consumer
reporting agency must furnish consumer reports concerning Defendant
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Sicard, pursuant to Section 604(1) of the Fair Credit Reporting Act, 15
U.S.C. §1681b(a)(1).
ENTRY OF JUDGMENT
X.

IT IS FURTHER ORDERED that there is no just reason for delay of entry of this
judgment, and that, pursuant to Federal Rule of Civil Procedure 54(b), the Clerk
immediately shall enter this Order as a final judgment as to Defendant Sicard.
RETENTION OF JURISDICTION

XI.

IT IS FURTHER ORDERED that this Court retains jurisdiction of this matter for
purposes of construction, modification, and enforcement of this Order.
V.

CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:
1.

U.S. Magistrate Judge Thomas B. Smith’s Report and Recommendation
(Doc. 70) is ADOPTED, CONFIRMED, and made a part of this Order.

2.

Plaintiff FTC’s Motion for Entry of Judgment by Default against Defendant
Dequan Sicard (Doc. 69) is GRANTED IN PART AND DENIED IN PART.
a.
b.

3.

The Motion is GRANTED to the extent identified in this Order.
In all other respects, the Motion is DENIED.

Defendant Dequan M. Sicard’s Motion for Relief from Default Judgment
and Order for Permanent Injunction (Doc. 72) is DENIED.

DONE AND ORDERED in Chambers in Orlando, Florida, on January 23, 2018.

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Copies to:
Counsel of Record
Pro Se Party

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