Belle Terrace Presbyterian Church v. CC Recovery
Filing
10
ORDER denying 8 Motion for Default Judgment; directing the Plaintiff to file an Amended Complaint or notify the Court that it seeks voluntary dismissal of this action within twenty-one (21) days of this Order. Signed by Judge J. Randal Hall on 01/28/2014. (thb)
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
BELLE TERRACE
PRESBYTERIAN
*
CHURCH,
*
*
Plaintiff,
*
*
CV 112-084
v.
*
CC RECOVERY,
*
*
Defendant.
*
ORDER
Presently
pending
the
Court
(Doc. no. 8.)
for Default Judgment.
below,
before
is
Plaintiff's
For the reasons set forth
Plaintiff's motion is DENIED.
I.
This
case
arises
nonexistent
debt
an employee
of
from
BACKGROUND
Defendant's
from Plaintiff.
efforts
On or about
to
collect
January
Yellow Local Directory contacted
5,
a
2011,
Plaintiff to
"confirm" a nonexistent listing in the Yellow Pages.
1.)
Motion
(Compl. SI
The caller spoke with a part-time secretary and failed to
inform her that that there was no existing contract.
caller
did
contract.
not
(Id.)
Plaintiff a bill
responded
and
ask
for
authorization
Nevertheless,
Yellow
for services rendered.
informed Yellow Local
never entered into a contract for the
to
enter
Local
(Id.
(Id.)
into
Directory
SI 2.)
Directory
services.
a
that
The
new
sent
Plaintiff
Plaintiff
(Id.)
Yellow
Local Directory discontinued collection efforts but apparently
assigned the purported debt to Defendant.
On
December
20,
2011,
Defendant
to collect a balance of $825.06,
listing price
and
fees
(Id.
SI
for
4,
mailed a
of
an
& Ex.
emailed
as well
administrative,
1.)
On
and
January 23,
seeking
interest
collection
2012,
charges
services.
Plaintiff's
alleged debt
was
nonexistent
and that any further contact
should be directed at
Plaintiff's
counsel.
Plaintiff's
Defendant
(Id.,
Ex.
that
2.)
response to that letter.
2012,
the
(Id.
SI 6.)
counsel
However,
Defendant mailed another letter to
SI
counsel
(Id.
advised
letter to
as
Defendant.
letter
cease-and-desist
Plaintiff
which included $499.99 for the
advertisement,
legal,
(Id. SI 3.)
5.)
The
received
no
on February 6,
Plaintiff,
seeking to
collect the same nonexistent debt and threatening to report the
debt to a credit
response,
reporting agency.
Plaintiff's
letter.
(Id.,
Plaintiff
another
(Id.
SI 9.)
Ex.
counsel
4.)
letter
On
(Id.
sent
7,
& Ex.
another
April
seeking
SI
5,
to
2012,
collect
(Id. SI 10.)
In
cease-and-desist
Defendant
the
Plaintiff's counsel responded with
and-desist letter.
3.)
mailed
bogus
debt.
a third cease-
No further communications were
alleged.
On
June
Defendant
("FDCPA").
2012.
7,
violated
(Doc.
2012,
the
no.
1.)
(Doc. nos. 5, 9.)
Plaintiff
Fair
Debt
filed
suit
Collection
alleging
Practices
that
Act
Defendant was served on August 24,
Defendant failed to plead or otherwise
2
respond to the Complaint,
the
Court
entered
and on November 6,
default
against
2012,
Defendant.
the Clerk of
(Doc.
no.
7.)
Subsequently,
Plaintiff filed its Motion for Default Judgment on
July 3, 2013,
asserting that,
Procedure 55(b),
Defendant.
the Court should enter default judgment against
(Doc.
no.
8.)
II.
Federal
pursuant to Federal Rule of Civil
Rule
of
Civil
DISCUSSION
Procedure
55(b)
ability to grant a default judgment,
discretion
Pitts
ex
to
rel.
1353, 1356
in
Pitts
(S.D.
itself
There
determine
must
be
v.
Ga.
warrant
a
whether
Seneca
2004).
the
sufficient
judgment entered ....
Sports,
in
the
Court's
and vests the court with
judgment
"[A]
court
governs
should
Inc.,
321
be
F.
entered.
Supp.
2d
Defendant's default does not
entering
basis
in
a
the
default
judgment.
pleadings
for
the
The defendant is not held to admit
facts that are not well-pleaded or to admit conclusions of law."
Nishimatsu
1206
Constr.
(5th Cir.
deemed
to
Co.
1975).1
have
matters
Houston
are
Nat'l
A defendant,
admitted
allegations of fact."
distinct
v.
Id.
the
Bank,
515
F.2d
by his default,
"plaintiff's
1200,
is only
well-pleaded
This Court has explained that three
essential
for
the
entry
of
default
1 see Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir.
1981) (holding that Fifth Circuit decisions made on or before September 30,
1981, are binding precedent in the Eleventh Circuit).
judgment:
Pitts,
(1)
321
jurisdiction,
F.
jurisdictional
Supp.
element,
subject-matter
Furthermore,
2d
(2)
at
1356.
"[t]he
jurisdiction
"[t]he
liability,
presence
of
must
the
(3)
damages.
respect
to
the
personal
have
the
appear on the face of the complaint."
A.
With
Court
over
and
and
defendant."
Court's
Id.
jurisdiction
must
Id.
Jurisdiction
2. Subject Matter Jurisdiction
There
pursuant
is
to
15
this case arises
2.
subject
U.S.C.
matter
§
1692k(d)
under the
Personal
jurisdiction
and 28
U.S.C.
Defendant
is
1331
case
because
Jurisdiction
an
business in Georgia,
§
this
FDCPA.
In regards to personal jurisdiction,
that
over
entity
lawfully
the Complaint alleges
authorized
to
conduct
regularly conducts business in Georgia,
and
was engaged in the debt collection efforts giving rise to this
(Compl. 11 3,
case in Georgia.
Court
concludes
proper
a
to
subsection
Jurisdiction
nonresident
state."
basis
personal
pursuant
statute.
over
that
O.C.G.A.
of
nonresident
may
that
§
transacting
defendant
be
4,
7,
business
has
& Exs. 1,
jurisdiction
(1)
of
over
the
exercised
"transacts
9-10-91(1).
9,
any
under
purposefully
consummated some transaction in this state,
done
(2)
within
exists
if
some
is
long-arm
subsection
state
The
Defendant
business
this
5.)
Georgia
wJurisdiction
in
3,
on
(1)
act
(1)
this
the
the
or
if the cause of
action arises from or is connected with such act or transaction,
and
(3)
state
if the exercise of jurisdiction by the
does
not
justice."
517-18
offend
Aero
Toy
traditional
Store,
LLC
v.
fairness
Grieves,
courts of this
and
279
substantial
Ga.
App.
515,
(2006).
Here,
it
appears
that
Defendant
is
a
nonresident
entity
that purposefully engaged in debt collection efforts in Georgia,
and
the
cause
efforts.
subsection
at
was
are
(1)
(N.D.
collector
subject
Moreover,
Process
to
of
Ga.
3,
4,
from
7,
9,
to
those
& Exs.
meet
1,
the
June
Inc.,
14,
No.
1991)
letters
the
is
Fourteenth
5.)
of
1991 WL 143461,
nonresident
to Georgia
residents
long-arm statute).
appropriate
Amendment.
These
See Bailey v.
(determining that
mailed demand
jurisdiction
3,
collection
requirements
1:90-CV-2702,
jurisdiction under Georgia's
of
debt
the Georgia long-arm statute.
that
personal
Clause
11
arises
sufficient
Brush & Assocs.,
*l-2
debt
action
(See Compl.
allegations
Clegg,
of
under
See
the
id.
at
Due
*2
(nonresident debt collector that sent demand letters to Georgia
residents had sufficient minimum contacts with Georgia,
and the
exercise of jurisdiction would not offend traditional notions of
fair
play
and
substantial
justice) .
Consequently,
personal
jurisdiction against Defendant is proper.
B. Liability
"The FDCPA seeks to remedy abusive,
deceptive,
and unfair
debt collection practices by debt collectors against consumers."
5
Frazier v.
1354,
Absolute
1363
Collection
(N.D. Ga. 2011)
v. Unifund CCR Partners,
Serv.,
Inc.,
(citing 15 U.S.C.
601 F.3d 1185,
In order to prevail on an FDCPA claim,
that:
(1)
from
it
was
"consumer
the
object
debt";
(2)
collector" under the FDCPA;
of
830 F. Supp. 2d 1305,
In regards
as
to
"any obligation
the
or
2d
(11th Cir.
2010)).
Plaintiff must establish
activity"
qualifies
as
arising
a
"debt
Defendant engaged in an act
or omission prohibited by the FDCPA.
& Goldman,
Supp.
LeBlanc
"collection
(3)
F.
§ 1692(e);
1190
Defendant
and
767
Dunham v.
1306-07
first element,
Lombardo,
(S.D. Fla.
the
alleged obligation
2011).
FDCPA defines
of a
Davis
"debt"
consumer to
pay
money arising out of a transaction in which the money, property,
insurance,
or services which are the subject of the transaction
are primarily for personal, family, or household purposes."
15
U.S.C.
is
§
1692a(5)
(emphasis
added).
The
term
"consumer"
defined as "any natural person obligated or allegedly obligated
to pay any debt."
is
limited
to
Id^ § 1692a(3)
"consumer
debt,"
(emphasis added).
and
it
does
not
The FDCPA
cover
debts
arising from business transactions.
Dunham, 830 F. Supp. 2d at
1307 n.2
(citing Heintz v.
514 U.S.
Lingo v.
City of Albany,
2006)).
The
FDCPA's
Jenkins,
195 Fed.
purpose
opposed to business entities."
is
Appx.
"to
291,
891,
protect
893
293
(1995);
(11th Cir.
individuals
as
Garcia v. Jenkins/Babb LLP, No.
3:11-CV-3171, 2013 WL 6388443, at *6 (N.D. Tex. Dec. 5, 2013).
Here,
Thus,
Plaintiff is a church entity,
according
to
the
plain
not a "natural person."
language
of
section
Plaintiff is not a "consumer" for FDCPA purposes.
alleged
debt
transaction
in
that
this
case
was
household
purposes"
Plaintiff
cannot
cannot
be
"primarily
under
state
for
section
a
claim
said
to
Moreover,
arise
personal,
1692a(5).
against
1692a(3),
out
the
of
family,
a
or
Consequently,
Defendant
under
the
Motion
for
FDCPA.2
III.
For
Default
the
reasons
Judgment
(doc.
set
CONCLUSION
forth
no.
8)
above,
is DENIED.
deficiency in Plaintiff's FDCPA claim,
file
an
Amended
Complaint
Plaintiff's
or
notify
Due
to the
Plaintiff is DIRECTED to
the
Court
that
voluntary dismissal of this Action within twenty-one
of t h i s
it
seeks
(21)
days
Order.
ORDER ENTERED at Augusta, Georgia,
January,
critical
this /Z>i){ ~~day of
2014.
/
HONORABLE J. RANDAT, HALL
UNITED STATES
IRN
DISTRICT
JUDGE
DISTRICT OF GEORGIA
2 To be clear, the Court's analysis is limited to FDCPA liability.
The
Court has not addressed whether Defendant's alleged acts may result in some
other form of civil or criminal liability.
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