Robertson v. Pinnacle Asset Group, LLC et al
Filing
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MEMORANDUM AND ORDER GRANTING PLAINTIFFS SECOND AMENDED MOTION FOR ENTRY OF DEFAULT JUDGMENT (Doc. 89). Signed by District Judge Avern Cohn. (MVer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBIN ROBERTSON,
Plaintiff,
v.
Case No. 15-13446
PINNACLE ASSET GROUP, LLC.,
HON. AVERN COHN
Defendants.
___________________________________/
MEMORANDUM AND ORDER
GRANTING PLAINTIFF’S SECOND AMENDED MOTION FOR ENTRY OF DEFAULT
JUDGMENT (Doc. 89)
I. Introduction
This is a case under the Fair Debt Collections Practices Act (FDCPA), 15 U.S.C.
§§ 1692. In 2015, plaintiff sued multiple defendants claiming violations of the FDCPA
and Michigan’s Occupational Code (MOC), M.C.L. §§339.915. Due to difficulties in
serving many of the defendants, summons were extended. Eventually, plaintiff has
dismissed all but ten (10) defendants either voluntarily or by settlement.1 All of the 10
defendants were served. None responded. The Clerk entered defaults against each of
the 10 defendants. Plaintiff now moves for entry of a final judgment by default against
1
Voluntarily Dismissed parties: Emmett Michael White; Regency Partners, LLC;
Trevore M Outlaw, SR; Paula Green; PRG & Associates, LLC; Paul Marks; William
Nelson; Jeff Lenart; Lillian Roman; Omar Lopez; Dennis Gilbert; Sam Letizia; Karen
Atwater and Johnathan Doe. See Docs. 47, 57, and 73. Plaintiff states she will also
dismiss Direct Capital Associates, LLC.
Settled parties: Thaddeus Wier. See Doc. 67(Notice of Settlement) and Doc. 72
(Stipulated Order of Dismissal), and Channer LLC and Jerome Davis. See Doc. 88
(Notice of Settlement) and Doc. 90 (Notice of Withdrawal of Motion to Set Aside
Default).
the 10 defendants.
Before the Court is plaintiff’s second amended motion for entry of a default
judgment.2 Plaintiff seeks a default judgment in the amount of $201,000.00 plus costs
and attorney fees (attorney fees will be moved for separately). For the reasons that
follow, the motion will be granted.
II. Background
A. Procedural
Plaintiff filed this action on September 30, 2015. (Doc. 1). She filed First
Amended Complaint on November 18, 2015 (Doc. 3), and a Second Amended
Complaint on May 22, 2017 (Doc. 16), each time adding defendants. Plaintiff seeks: (1)
actual damages for items including emotional distress, mental anguish, frustration,
humiliation, and embarrassment; (2) statutory damages; (3) exemplary damages under
Michigan law; and (4) statutory costs and attorney fees.
The remaining defendants are: (1) High Point Asset Inc., (2) Focus Financial
Corp., (3) Keon Roman, (4) Felicia Thomas,3 (5) Pinnacle Asset Group, LLC, (6)
Michael Mancome,4 (7) Collectors Group, (8) Consumer Financial Solutions, (9) Michael
2
Plaintiff filed a motion for default judgment (Doc. 74) and an amended motion for
default judgment (Doc. 78). These motions were not adjudicated because plaintiff
continued to voluntarily dismiss/settle with several defendants. In any event, they are
MOOT in light of the filing of the second amended motion for default judgment.
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High Point Asset Inc., Focus Financial Corp., Keon Roman, and Felicia Thomas
are collectively referred to as “the High Point Defendants.”
4
Pinnacle Asset Group, LLC and Michael Mancome are collectively referred to as
“the Pinnnacle Defendants.”
2
McCoy, and (10) Lajarcis Gordon.5
Plaintiff served each of the ten remaining defendants and dismissed all others.
Plaintiff has mailed copies of all docket entries to each remaining defendant, including
Plaintiff’s requests for Clerk’s Entry of Default, see Docs. 35, 43, 50, and 68, as well as
the Clerk's Entry of Default. See Docs. 37, 44, 52, and 69. Defendants have not
answered or otherwise responded.
B. Factual
As set forth in plaintiff’s brief and exhibits,6 plaintiff has received abusive and
harassing calls by defendants. They have also called her family members, looking for
her, disparaging her, and making threats about her. And even though the alleged debts
do not belong to her, the toll of the debt collection efforts against her have materially
and negatively impacted her life.
C. Damages
Plaintiff seeks the following damages:
Statutory Damages
All Defendants, Statutory Damages - FDCPA
$ 1,000.00
Actual Damages
High Point Defendants, Actual Damages - FDCPA
Collectors Group Defendants, Actual Damages - FDCPA
Pinnacle Defendants, Actual Damages - FDCPA
$20,000.00
$20,000.00
$10,000.00
Statutory Treble Damages
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Collectors Group, Consumer Financial Solutions, Michael McCoy, and Lajarcis
Gordon are collectively referred to as “the Collectors Group Defendants.”
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Plaintiff’s exhibits include detailed call logs from plaintiff, her husband, and her
daughter. They also include responses to subpoenas used to establish each
defendant’s identity and connection to the calls plaintiff and her family received.
3
High Point Defendants, MOC - Treble Actual Damages
Collectors Group Defendants, MOC - Treble Actual Damages
Pinnacle Defendants, MOC - Treble Actual Damages
Subtotal
$60,000.00
$60,000.00
$30,000.00
$ 201,000.002
III. Legal Standard
A Party may obtain a default judgment where a Defendant fails to answer or
otherwise defend the case. Fed. R. Civ. P. 55. Following entry of a Clerk’s default, the
moving Party must request entry of judgment. The Clerk may enter default judgment for
a sum certain. However, the Plaintiff must move for entry of default judgment by the
Court when she seeks an amount that cannot be determined from the complaint itself.
Fed. R. Civ. P.55(b).
IV. Analysis
A. In General
The purpose of the FDCPA is to “eliminate abusive debt collection practices by
debt collectors, to insure that those debt collectors who refrain from using abusive debt
collection practices are not competitively disadvantaged, and to promote consistent
State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e).
The MOC governs the conduct of debt collection agencies and their agents and closely
mirrors the FDCPA and provides for treble damages, and also attorney’s fees & costs.
B. The High Point Defendants
Plaintiff’s papers show that the High Point Defendants not only called plaintiff, her
husband and her daughter to attempt to collect the alleged debt. Generally, a debt
collector may call a third-party for the limited purpose of locating the debtor, only. They
cannot enlist the debtor’s third-party family members and friends to further the collection
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efforts. 15 U.S.C. § 1692(b). Plaintiff has also shown that the High Point Defendants
operated a common joint venture to collect debts from consumers through several
websites, phone numbers, and entities and used their respective credit cards to pay for
those various websites. Plaintiff’s papers also show that the High Point Defendants
called plaintiff repeatedly during the months of October and November 2015 to collect a
debt – one she did not owe. They also called plaintiff’s husband during the same time.
The records show a total of nine (9) calls.
The High Point Defendants’ actions violated 15 U.S.C. § 1692(d) and MOC
§339.915(n). Considering she never owed any of the alleged debts, each call to her
phone was unwanted, disruptive, annoying and in violation of the FDCPA and MOC, 15
U.S.C. § 1692(d), M.C.L. § 339.915(n).
C. The Pinnacle Defendants
Plaintiff’s papers show that Michael Mancone is the proprietor of a debt collection
entity called Pinnacle Asset Group, LLC (Pinnacle). The Pinnacle Defendants collect
debts from consumers through many phone numbers and a website,
www.pinnacleassetgroupllc.com. The Pinnacle Defendants also employed debt
collectors. The Pinnacle Defendants called plaintiff several times: January 30, 2015,
March 19, 2015, April 20, 2015, April 24, 2015, April 29, 2015, and May 8, 2015. Each
time the caller left a message, he said he was a debt collector and calling from
Pinnacle. The Pinnacle Defendants never established the alleged debt belonged to
plaintiff. But for five months, the Pinnacle Defendants called plaintiff. Every time the
Pinnacle Defendants called her, the call was unwanted and violative of both Section
1692(d) of the FDCPA and Section 339.915(n) of the MOC – at least 5 phone calls.
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D. The Collectors Group Defendants
Plaintiff’s papers show that Sam Letizia, Michael McCoy, and Lajarcis Gordon
operated a common joint venture to collect debts from consumers through several
websites, phone numbers, and entities, including Collectors Group and Consumer
Financial Solutions. They used at least two phone numbers to communicate with
consumers, (855) 870-8966 and (888) 732-0174.
The Collectors Group Defendants called Mrs. Robertson at least 3 times on
January 8, 2015, April 20, 2015, and June 10, 2015. They referred to the debt by
reference number 146313946 and used multiple phone numbers. The Collectors Group
Defendants never established the alleged debt belonged to plaintiff. However, for
nearly 6 months and on at least 3 occasions, they called plaintiff to collect on the debt.
Accordingly, each call was unwanted and violative of both Section 1692(d) of the
FDCPA and Section 339.915(n) of the MOC – at least 3 phone calls. Further, the
Collectors Group Defendants failed to identify themselves on every call. Rather, they
would direct her to return their call and ask for the “legal department” or to refer only to
an ambiguous reference number “146313946.” As such, the Collectors Group actions
also violated Section 1692(d)(6) by failing to meaningfully disclose their identity.
The Collectors Group Defendants also violated 15 U.S.C. § 1692(e) and MOC §§
339.915(e) and 339.915(f). The FDCPA prohibits collectors from using false, deceptive,
or misleading representation or means in connection with the collection of
any debt. 15 U.S.C. § 1692(e). The MOC’s Sections 339.915(e) and 339.915(f)
prohibit similar conduct. A debt collector is prohibited from making an “inaccurate,
misleading, untrue, or deceptive statement” in connection with the collection of a debt.
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M.C.L. § 339.915(e). And a debt collector may not misrepresent the legal status or
rights of a creditor. M.C.L. § 339.915(f).
E. All Defendants
Finally, all of the defendants violated 15 U.S.C. §§ 1692(f) and 1692(g), and
MOC §339.918. The FDCPA also prohibits the use of unfair or unconscionable means
to collect or attempt to collect any debt. 15 U.S.C. § 1692(f). The statute goes on to
require that each collector provide the consumer with a notice providing basic
information about the debt and the consumer’s rights. 15 U.S.C. § 1692(g). The MOC
Section 339.918 parallels the FDCPA’s notice provisions and requires a debt collector to
send written notice detailing a debtor’s rights “[w]ithin 5 days after the initial
communication with a consumer in connection with a collection of a debt.” M.C.L. §
339.918(1).
The High Point, Collectors Group, and Pinnacle Defendants all failed to send a
written notice to plaintiff. Further, because plaintiff did not borrow or owe the alleged
debts there was no agreement creating the debt in the first place. Accordingly, all of the
defendants violated Sections 1692(f) and 1692(g) as well as MOC Section 339.918.
F. Relief
As explained above and further detailed in plaintiff’s motion, all of the defendants
have engaged in willful violations of the FDCPA and MOC. They have also refused to
answer the complaint. Accordingly, the a default judgment is appropriate against the
High Point, Collectors Group, and Pinnacle Defendants.
“Where damages are unliquidated a default admits only [the defaulting party’s]
liability and the amount of damages must be proved.” Vesligaj v. Peterson, 331 F.
7
App’x 351, 355 (6th Cir. 2009) (unpublished) (quoting Antoine v. Atlas Turner, Inc., 66
F.3d 105, 110 (6th Cir. 1995)). The court must “conduct an inquiry in order to ascertain
the amount of damages with reasonable certainty.” Id. (quoting Credit Lyonnais Sec.
(USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999)).
As noted above, plaintiff requests damages in the following amounts:
High Point Defendants
$80,250.00
Collectors Group Defendants
$80,250.00
Pinnacle Defendants
$40,250.00
Subtotal
$201,000.00
Based on all of the above, the Court is satisfied that plaintiff has met her burden of
establishing her right to damages and the amount of the damages.
The Court notes that other courts in this district, including the undersigned, have
awarded similar amounts in substantially analogous FDCPA cases via default
judgments. See Bysouth v Security Credit Solutions, LLC11, et. al., Case No.
16-cv-10519 (E.D. Mich.) Awarded $116,000, plus interest, costs, and attorney’s fees);
Green v. Nationwide Arbitration Services, LLC12, et. al., Case No. 14-cv-14280 (E.D.
Mich.) (Awarded $105,000, plus interest, costs, and attorney’s fees); Zontini v.
Merchants Recovery Services, Inc., et. al., Case No. 12-cv-14912 (E.D. Mich.)
(Awarded $107,080); Bryant v. Meade & Associates, Inc., et. al., Case No.
2:15-cv-10199 (E.D. Mich.) (Awarded $101,000).
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V. Conclusion
For the reasons stated above, plaintiff’s motion is GRANTED. Plaintiff shall
submit a proposed judgment in accordance with this order.
Plaintiff’s counsel shall separately file a motion for reasonable attorney fees
within the appropriate time.
SO ORDERED.
S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: 6/3/2019
Detroit, Michigan
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