Young v. American Credit & Collections, LLC

Filing 15

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER FOR DEFAULT JUDGMENT: granting 6 Motion for Default Judgment (Written Opinion). Signed by Judge Susan Richard Nelson on 8/29/12. (LPH)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
FOURTH DIVISION
Case No. 0:11-cv-3288-SRN-JSM

Amber Young,
Plaintiff,
v.
American Credit & Collections, LLC,

FINDINGS OF FACT,
CONCLUSIONS OF LAW
AND ORDER FOR
DEFAULT JUDGMENT

Defendant.

James Agosto, Macey Bankruptcy Law, P.C., 1970 Oakcrest Avenue, Suite
210, Roseville, Minnesota 55113, for Plaintiff
_____________________________________________________________

FINDINGS OF FACT
1. Plaintiff is a natural person who resided in Chaska, MN at all times
relevant to this action.
2. Defendant American Credit & Collections, LLC (“American”) is a
Pennsylvania limited liability company that maintained its principal
place of business in Scranton, PA at all times relevant to this action.
3. Defendant is a "debt collector” as defined by 15 U.S.C. §1692a(6).
4. The underlying alleged obligation is a “debt” as defined by 15 U.S.C.
§1692a(5).
5. Plaintiff is a “consumer” as defined by 15 U.S.C. §1692a(3).

6. On June 7, 2011, American’s representative “Brandon” telephoned
Plaintiff in connection with the collection of the debt, cancelled
Plaintiff’s previous payment arrangement without warning, and
threatened to sue Plaintiff due to Plaintiff’s inquiries about the dates
on which her payments were being withdrawn.
7. American called Plaintiff immediately after terminating the above
phone call and left a voicemail threatening to file a lawsuit and cancel
Plaintiff’s payment arrangement.
8. Plaintiff telephoned American again to try to speak with a different
representative to resolve the matter.
9. American’s representative Brandon called Plaintiff again on June 7,
2011. During the call, he loudly admonished Plaintiff for speaking to
a different representative, ridiculed Plaintiff’s debt level, threatened to
take Plaintiff’s car and garnish her wages, and told Plaintiff that
American would see Plaintiff in court.
10. As a result of these threats, Plaintiff entered into a payment
arrangement with Defendant to pay $500.00 each month. This
payment arrangement was unaffordable for Plaintiff and was entered
into due to Plaintiff’s concerns about possible wage garnishment and
the loss of her car.

11. At the time of the above threats, American had neither the intent nor
the ability to file a lawsuit against Plaintiff, take Plaintiff’s car, or
garnish Plaintiff’s wages.
12. As a result of the Defendant’s actions, Plaintiff was in shock, felt
worthless, felt hopeless, and was in tears.
13. Plaintiff filed her Complaint in the instant action on November 11,
2011 [Doc. No. 1], alleging violations of the Fair Debt Collection
Practices Act, 15 U.S.C. §1692d , against Defendant.
14. Plaintiff’s counsel avers that on November 8, 2011, counsel mailed a
notice of the lawsuit to Defendant, along with a request for waiver of
service. (Aff. of Nicholas J. Prola ¶ 3 [Doc. No. 10].)
15. After Defendant did not waive service of process, Plaintiff effected
personal service of process upon Defendant on December 20, 2011.
(Summons Returned Executed at 2 [Doc. No. 2]), making American’s
answer due on January 10, 2012.
16. As of today’s date, American has not filed a responsive pleading with
this Court.
17. On February 23, 2012, the United States District Court Clerk entered
American’s default on the record. (Clerk’s Entry of Default [Doc. No.
5].)

18. On June 11, 2012, Plaintiff moved the Court for Default Judgment
against American. (Motion for Default Judgment [Doc. No. 6].)
Plaintiff mailed a copy of the Notice of Hearing, Motion for Default
Judgment, Memorandum and supporting papers to Defendant on that
same day. (Certificate of Service [Doc. No. 11].) Plaintiff requests
$1,000.00 in statutory damages and $3,322.50 in attorney’s fees and
costs, for a total judgment of $4,322.50.

CONCLUSIONS OF LAW
1. Defendant has defaulted on the Complaint and therefore has admitted
the allegations contained therein.
2. American violated 15 U.S.C. §1692e by threatening to sue Plaintiff,
threatening to garnish Plaintiff’s wages and threatening to take
Plaintiff’s car when American had neither the intent nor the legal
ability to do so.
3. American violated 15 U.S.C. §1692d(2) by communicating with
Plaintiff using language the natural consequence of which is to abuse
the hearer, including yelling at Plaintiff and criticizing Plaintiff’s level
of debt.
4. Plaintiff therefore is entitled to the requested relief, including full
statutory damages of $1,000.00.

1. A plaintiff in a successful FDCPA action shall also recover “the costs
of the action, together with a reasonable attorney’s fee as determined
by the court.” 15 U.S.C. §1692k(a)(3).
2. The Lodestar method is used to determine what amount a prevailing
party should be awarded for attorney’s fees. This method uses the
number of hours that are reasonably expended on litigation and
multiplies those hours by a reasonably hourly rate. Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983).
3. Plaintiff has submitted an affidavit and exhibit regarding her
attorney’s fees and costs. (Ex. A to Prola Aff. [Doc. No. 10-1].)
Plaintiff incurred $2,937.50.00 in reasonable attorney’s fees for 10.2
hours of attorney work billed at a rate of $250 per hour and 3.1 hours
of paralegal work, billed at a rate of $125 per hour, plus $385.00 in
costs. (Id.)
4. As the prevailing party due to American’s default, Plaintiff is
awarded $385.00 for costs and $2,937.50 for reasonable attorney’s
fees, for a total of $3,322.50.
5. Judgment is hereby entered against Defendant American Credit &
Collections, LLC in the total amount of $4,322.50.
LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: August 29, 2012
s/Susan Richard Nelson
SUSAN RICHARD NELSON
UNITED STATES DISTRICT JUDGE