Burrell v. Imperial Recovery Partners, LLC

Filing 13

ORDER granting 7 Motion for Judgment. Signed by District Judge Nancy G. Edmunds. (CHem)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Biko Burrell,

Case No. 11-11423

Plaintiff,

Honorable Nancy G. Edmunds

v.
Imperial Recovery Partners, LLC,
Defendant.

/

OPINION AND ORDER GRANTING PLAINTIFF’S MOTION FOR DEFAULT
JUDGMENT [7]
Before the Court is Plaintiff Biko Burrell’smotion for entry of judgment pursuant to the
clerk’s entry of default. (Dkt. 7. Plaintiff states that he isentitled to this judgment because
)
Defendant Imperial Recovery Partners, LLC has failed to plead or otherwise defend this
action. For the reasons and with the lim itations on damages stated below, the Court
GRANTS Plaintiff’s motion.
I.

Facts
On April 5, 2011, Plaintiff filed his compla alleging that Defendant violated the Fair
int

Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. and the Michigan Occupational
Code, Mich. Comp. Laws § 339.101 et seq.
Plaintiff alleges that Def endant improperly attempted to collect on “consumer type
debt” that Plaintiff allegedly owed. (Com pl. ¶ 6.) Around November, 2010, Defendant
started calling Plaintiff about the allegedly-owed debt. (d. ¶ 7.) In February, 2011, Plaintiff
I
asked Defendant to stop calling him and asked fo
r something (reflecting the debt) in writing.

(Id. ¶ 8.) Defendant res
ponded, “No, we are not going to do that.” Id.) Plaintiff states that
(
he has not received anything in writing. (Id.)
A little over a month later, around March 17, 2011, Plaintiff alleges that Defendant’s
representative, “James,” told Plaintiff that Defendant was “going to type in the computer
[Plaintiff’s] refusal to pa y and send this account back to Wells Fargo. Wells Fargo will
garnish [Plaintiff’s] wages.” (Id. ¶ 9.) Plaintiff then told De
fendant that he had an attorney,
and gave the attorney’s name and contract in formation; to which Defendant allegedly
responded, “Your attorney cannot do anything about this.” ( Id. ¶ 10.) Roughly a week
later, Defendant called him again. ( Id. ¶ 11.) Plaintiff again informed Defenda nt that he
had an attorney, and again Defendant responded negatively, stating “I don’t care who you
have, you owe a debt.”1 (Id.)
Plaintiff seeks actual, statutory, and treble damages, as well as statutory costs and
attorney’s fees.
II.

Standard
Before a plaintiff can obtain a default judgment, the clerk must first issue an entry of

default. After that, the plaintiff may obtain a default judgment, either from the clerk or the
court. But to obtain a default judgment for an uncertain amount of damages–as here– a
plaintiff must seek the Court’s leave for a default judgment. Fed.R.Civ.P. 55(b)(2). Rule
55 provides that the Court “may conduct heari or make referrals–preserving any federal
ngs
statutory right to a jury trial–when, to enter or effectuate judgement, it needs to:”
Due to the entry of default, Plaintiff’s well-pleaded allegations establish Defendant’s
liability, but Plaintiff still has to prove his damages. Hett v. Bryant Lafayette and Assoc.,
LLC, No. 10-12479, 2011 WL 740460, at *2 (Feb. 24, 2011) (Borman, J.) (citing Antoine
v. Atlas Turner, Inc., 66 F.3d 105, 110-111 (6th Cir. 1995).
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(A) conduct an accounting;
(B) determine the amount of damages;
(C) establish the truth of any allegation by evidence; or
(D) investigate any other matter.
Fed.R.Civ.P. 55(b)(2). But the Rule does

not require the Court to hold a hearing on

damages so long as a basis exists for the damages requested. Hett v. Bryant Lafayette
and Assoc., LLC, No. 10-12479, 2011 WL 740460, at *2 (Feb. 24, 2011) (Borman, J.)
(citing Yesligaj v. Peterson, 331 F. App’x 351, 354-55 (6th Cir. 2009) (citation omitted)).2
III.

Analysis
Here, the Court finds that a hearing on dam
ages is not necessary; the complaint and

Plaintiff’s motion and fillings establishes a

basis for the amount of

damages Plaintiff

requests.
A. The FDCPA entitles Plaintiff to statutory damages
Plaintiff requests damages pursuant to 15 U.S.C. § 1692k(a)(2). That section entitles
a plaintiff to a statutory award of “such additional damages as the court may allow, but not
exceeding $1,000.” 15 U.S.C. § 1692k(a)(2). Section 1692k(b) lists factors that a court
should consider as it decides what amount to award a plainti f. Those factors include: “the
f
frequency and persistence of noncompliance by the debt collector, the nature of such
noncompliance, and the extent to which such noncompliance was intentional.” 15 U.S.C.
§ 1692k(b).
The complaint establishes that Defendant violated FDCPA provisions. The FDCPA
requires a debt collector to senda written notice of the debt hat includes statutorily-specific
t

The Court is satisfied that Plaintiff has properly requested and received a Clerk’s Entry
of Default. (Dkt. 9, 10.)
2

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information. 15 U.S.C. § 1692g. Defendant did not do so. The FDCPA also prohibits
harassing or abusive behavior by the debt collector to collect on a debt. 15 U.S.C. §
1692d. According to the complaint, Defendant refused to provide anything in writing, told
Plaintiff that Wells Fargo was going to garnish wages, and told Plai tiff that his attorney
his
n
could not do anything to help. (Compl. ¶¶ 8-10.) These allegations in the complaint show
that Defendant violated the FDCPA. And fina the FDCPA prohibits direct communi
lly,
cation
with the consumer if the debt collector knows that an attorney represents the consumer.
15 U.S.C. § 1692b(6). Here, Plaintiff states that he informed Defendant’s representative
that he had an attorney, yet Defendant’s representative continued to call him. (Compl. ¶
11.)
The Court is satisfied that Plaintiff’s allegations establish a violation of the FDCPA.
This violation entitles Plaintiff to the $1,000.00 statutory damages award. Plaintiff has not
submitted any evidence of actual damages t hat would entitle him to an actual damages
award.
B. The Michigan Occupational Code entitles Plaintiff to treble damages
only when a plaintiff has suffered actual damages
Plaintiff alleges that Defendant violat ed the Michigan Occupat ional Code. And
specifically, Michigan Compiled Law § 339.915. Several of § 915's provis ions mirror the
FDCPA’s relevant sections above, and make it unlawful for the creditor to communicate
with a debtor if the debtor is represented by an attorney and to use harassing or abusive
behavior to collect the debt. See Mich. Comp. Laws §339.915 (h), (n). As shown above,
Plaintiff has made the allegations required to find a violation of the Michigan Occupational
Code.
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Because Plaintiff has established a violati on, he is entitled to br ing an action for
damages. (“A person who suffers injury, lo ss, or damage, or from whom money was
collected by the use of a method, act, or practi

ce in violation of this art icle or rules

promulgated under this article, may bring an action for damages or other equitable relief.”
Mich. Comp. Law § 339.916(1).) The Occupational Code provides damages. See Mich.
Comp. Law § 339.916(2) (“If the court finds for

the petitioner, recovery shall be in the

amount of actual dam ages or $50.00, whichever is greater. If the court finds that the
method, act, or practice was a willful violation, it may award a civil penalty of not less than
3 times the actual damages, or $150.00, whichev is greater and shall award reasonable
er
attorney’s fees and court costs incurred in the connection with the action.”)
Under the Occupational Code, Plaintiff requests $3,000.00, which is three times the
statutory amount that Plaintiff is entitled to under the FDCPA. Here, the Cour t cannot
award the $3,000.00 as Plaintiff requests. Pl aintiff has not shown that he suffered any
actual damages; and in his complaint he has
only requested statutory damages. These two
types of damages are not the s

ame. Michigan courts have adopted Black’s Law

Dictionary’s definition of actual damages:

“An amount awarded to a complainant to

compensate for a proven injury or loss;damages that repay actual losses.” Alken-Ziegler,
Inc. v. Hague, 767 N.W.2d 668, 671 (Mich.Ct.App. 2009).Plaintiff has not shown any injury
or loss due to Defendant’s violat ion of the O ccupational Code. He thus is entitled to
$150.00–the statutory award mult iplied three times, as Plaint iff has alleged a willful
violation.
The Court therefore finds that Plaintiff is entitled to $1,150.00 in statutory damages.
C. Plaintiff is entitled to his attorney’s fees and costs
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Both the FDCPA and the Michigan Occupat ional Code provide for a reasonable
attorney’s fee and costs. 15 U.S.C. § 1692k(a)(3) (“any debt collector who fails to comply
with any provision of [the FDCPA] with respect to any person is liable to such person . . .
in the case of any successful action to enforce foregoing liability, the costs of the action,
the
together with a r easonable attorney’s fee as determined by the court.” See also Mich.
Comp. Law § 339.916(2).
To calculate a reasonable attorney’s fees award, courts use the “lodestar method,”
which requires the court to multiply a reasonable hourly rate by the reasonable number of
hours worked. Ellison v. Balinski, 625 F.3d 953, 960 (6th Cir. 2010) The Court “has broad
.
discretion to determine what constitutes a reasonable hourly rate for an attorney.” Hett,
2011 WL 740460, at *2 (quotingWayne v. Vill. of Sebring, 36 F.3d 517, 533 (6th Cir. 1994).
“[A] [c]ourt may consider various factors

in making its calculation, including ‘[t

]he

reasonable hourly rate in the community[,] . . . the attorney’s actual billing rate and fee
award from prior cases[, and] a court may determine a reasonable rate based on its own
expertise and judgment.’” Id. (quoting Wells v. Corporate Accounts Receivable, 683
F.Supp.2d 600, 602 (W.D.Mich. 2010) (insertions in original, original citation omitted).
Plaintiff requests $3,180.00 as an attorney’s fees and $370.00 for costs.
As other courts in the thisdistrict have found, the Court fi ds that Plaintiff’s counsel’s
n
hourly rate is reasonable given his experience in FDCPA cases.

See Hett v. Bryant

Lafayette and Assoc., No. 10-12479, 2011 WL 89323, at *1 (E.D. Mich. Mar. 14,
2011)(Borman, J) (finding Plaintiff’s counsel’s rate reasonable); Kuhne v. Law Officers of
Timothy E. Baxter and Assoc., P.C., No. 08-14088, 2009 WL 1798126, at *1 (E.D. Mich.

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June 23, 2009) (O’Meara, J.) (f inding Plaintiff’s counsel’s rate reasonable given his
expertise and the prevailing community rates).
But as to the number of hours expended on this case, the Court finds that some of
Plaintiff’s counsel’s hours are unreasonable. The Court finds that the half-hour expended
on the first amended request for the entry of default is unreasonable. Plaintiff had to file
the amended request because his first request

was improper. As this

action was

completely in his counsel’s hands, the Court will not award that half-hour. The Court will
also reduce the hours expended on the first amended Plaintiff’s motion for damages. In
this amended motion, Plaintiff’s counsel only included a bill of costs and an a ffidavit and
did not change the motion substantively. The Court reduces the award from two hours to
one hour. The Court finds the remaining hours reasonable. The Court therefore reduces
the total award by 1.5 hours and awards Plai ntiff $2,782.50 for his attorney’s fees and
awards the full $370.00 in costs.
VI.

Conclusion
For the reasons stated above, the Court GR ANTS Plaintiff’s motion f or entry of

judgment and awards Plaintiff $1,150.00 in statutory damages pursuant to the FDCPA and
the Michigan Occupational Code, $2,782.50 in attorney’s fees, and $370.00 in costs.
s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: July 11, 2011
I hereby certify that a copy of the foregoing document was served upon counsel of record
on July 11, 2011, by electronic and/or ordinary mail.
s/Carol A. Hemeyer
Case Manager
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