Vanlier v. Takhar Collection Services, LTD. et al
---CLERK TO FOLLOW UP---DECISION AND ORDER GRANTING Plaintiff's 36 MOTION for Default Judgment as to Hardial S. Takhar and Sukcharn S. Takhar. Plaintiff is awarded $500.00 for Defendants' violation of the FDCPA, $2,904.83 in attorney's fees, and $363.61 in costs. The Clerk is directed to enter judgment accordingly and to close this case. Signed by Hon. John T. Curtin on 3/24/2016.(JEC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TAKHAR GROUP COLLECTION SERVICES, LTD.,
FINANCIAL DEBT RECOVERY LIMITED,
F.D.R. CREDIT RECOVERY LTD,
HARDIAL S. TAKHAR,
SUKCHARN S. TAKHAR, and
On April 30, 2013, plaintiff Darryl Vanlier filed a complaint alleging the violation of
the Fair Debt Collection Practices Act (“FDCPA” or “Act”), 15 U.S.C. § 1692, et seq. On
August 28, 2013, he filed an amended complaint naming Hardial S. Takhar and Sukcharn
S. Takhar as individual defendants. Item 8. Defendants Hardial and Sukcharn Takhar
failed to appear and defend this action, which resulted in entry of default by the Clerk of
the Court, pursuant to Rule 55(a) of the Federal Rules of Civil Procedure, on February 21,
2014. Items 26, 27.1 Presently before the court is plaintiff's motion for default judgment
pursuant to Fed. R. Civ. P. 55(b). Item 36. For the following reasons, plaintiff's motion is
On March 21, 2014, the court received a letter from the individual defendants in which they
denied having had notice of the action. The court treated the letter as a motion to vacate the entry of
default, plaintiff filed a response, and the motion was denied on June 27, 2014 (Item 33). No appearance
of counsel was entered on behalf of the individual defendants and no responsive pleadings were filed.
Default Judgment Standard
Before obtaining default judgment, a party must first secure a Clerk's entry of default
by demonstrating, by affidavit or otherwise, that the opposing party is in default. Fed. R.
Civ. P. 55(a). Once default has been entered, the allegations of the complaint establishing
the defendant's liability are accepted as true, except for those relating to the amount of
damages. Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d
Cir. 1992), cert. denied, 506 U.S. 1080 (1993).
In considering whether to enter default judgment, the court must determine whether
the facts alleged in the complaint are sufficient to state a claim for relief as to each cause
of action for which the plaintiff seeks default judgment. Further, where the damages
sought are not for a sum certain, the court must determine the propriety and amount of the
default judgment. See Fed. R. Civ. P. 55(b)(2). Damages must be established by proof,
unless the damages are liquidated or “susceptible of mathematical computation.” Flaks
v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974). All reasonable inferences from the evidence
presented are drawn in the moving party's favor. See Au Bon Pain Corp. v. Artect, Inc.,
653 F.2d 61, 65 (2d Cir. 1981).
As set forth in the complaint, the facts are relatively straightforward. At all times
relative to the claim asserted, defendants Hardial and Sukcharn Takhar were owners and
officers of Takhar Collection Services, LTD., a business entity engaged in the business of
debt collection within the meaning of 15 U.S.C. § 1692a(6) (definition of “debt collector”),
and were alleged to be responsible for the unlawful debt collection practices and
procedures of the company.2 Plaintiff alleges that in 2010, defendants began contacting
him in an attempt to collect a consumer debt. Plaintiff advised the defendants that he did
not owe a debt and instructed them to stop calling. Plaintiff further alleges that defendants
violated the FDCPA by failing to identify themselves as a debt collector, in violation of
section1692d(6), and in continuing to call him after being advised that plaintiff was
represented by an attorney, in violation of section 1692c(a)(2). Accordingly, for purposes
of this motion, plaintiff has sufficiently alleged facts to establish defendants’ liability under
Section 1692k(a)(2)(A) authorizes the court to award up to $1,000 in statutory
damages per plaintiff for any violation of the FDCPA. The specific amount of statutory
damages, not to exceed $1,000, falls within the court's discretion. See Savino v. Computer
Credit, Inc., 164 F.3d 81, 86 (2d Cir. 1998). Factors to be considered by the court in
determining an appropriate statutory damages award include the frequency, persistence,
and nature of the debt collector's noncompliance with the Act; the debt collector's
resources; the number of individuals adversely affected; and the extent to which the debt
collector's non-compliance was intentional. See 15 U.S.C. § 1692k(b)(1). Awards of the
Plaintiff has adequately alleged the personal involvement of the individual defendants in the
violation of the FDCPA. See Ohlson v. Cadle Co., 2006 WL 721505 (E.D.N.Y. Mar. 21, 2005) (“officers
and employees of the debt collecting agency may be jointly and severally liable with the agency where
they have affirmatively acted.”).
$1,000 statutory maximum are typically reserved for cases where the defendants' violations
are “particularly egregious or intimidating.” Cordero v. Collection Co., 2012 WL 1118210,
*2 (E.D.N.Y. Apr. 3, 2012).
By virtue of the entry of default, defendants are deemed to have admitted the wellpleaded allegations of the complaint.
However, considering the infrequency of the
noncompliance (unspecified number of telephone calls), the limited number of individuals
adversely affected (one), and the absence of any further information regarding the debt
collector's resources or intent, the court finds that the violation of the FDCPA does not
amount to the level of “particularly egregious or intimidating” conduct warranting an award
of maximum statutory damages. The court therefore awards plaintiff a total of $500.00 in
statutory damages pursuant to 15 U.S.C. § 1692k(a)(2)(A). See Hance v. Premier
Recovery Group, Inc., 2013 WL 85068, *2 (W.D.N.Y. Jan. 7, 2013) (awarding $500 in
statutory damages where defendant called plaintiff's home on a number of occasions,
totaling more than 20 times per month); Fajer v. Kaufman, Burns & Assocs., 2011 WL
334311, *3 (W.D.N.Y. Jan. 28, 2011) (awarding $500 where defendant made numerous
calls to home and workplace and made empty threats of litigation); see also Bonafede v.
Advanced Credit Solutions, LLC, 2012 WL 400789, *3 (W.D.N.Y. Feb. 7, 2012) (finding
demand of $1,000 “excessive” where plaintiff presented no evidence that communications
with collector were persistent).
Attorneys’ Fees and Costs
The FDCPA also provides for the recovery of reasonable attorney's fees and costs
by successful litigants. See 15 U.S.C. § 1692k(a)(3) (permitting recovery of, “in the case
of any successful motion to enforce the foregoing liability, the costs of the action, together
with a reasonable attorney's fee as determined by the court”). In determining a reasonable
fee, district courts should set a reasonable hourly rate, bearing in mind case-specific
variables, and then use the reasonable hourly rate to calculate a “presumptively
reasonable fee.” Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany,
522 F.3d 182, 190 (2d Cir. 2008). There is a presumption in favor of the hourly rates
employed in the district in which the case is litigated. Simmons v. New York City Transit
Auth., 575 F.3d 170, 174–75 (2d Cir. 2009). Thus, the court must consider the prevailing
market rate in the Western District of New York for “similar services by lawyers of
reasonably comparable skill, experience, and reputation.” Blum v. Stenson, 465 U.S. 886,
896 n. 11 (1984).
Here, plaintiff seeks an award of $2,904.83 in attorneys fees and has submitted
documentation of the number of hours expended on the case by himself and a paralegal.
The court finds the number of hours and the hourly rates ($300 per hour for experienced
attorney and $50 per hour for paralegal) to be reasonable, given the prevailing market
rates in this district for FDCPA cases in the recent past. See, e.g., Ortez v. First Asset
Recovery Group, LLC, 2014 WL 1338835, at *3 (W.D.N.Y. Apr. 2, 2014) (granting motion
for default judgment and awarding fees at hourly rates of $250 for experienced attorneys,
$175 for newer attorneys, and $75 for paralegal staff); Carbin v. Northern Resolution
Group, LLC, 2013 WL 4779231, at *3 (W.D.N.Y. Sept. 5, 2013) (same); Halecki v. Empire
Portfolios, Inc., 952 F. Supp. 2d 519, 521-22 (W.D.N.Y. 2013) (awarding hourly rate of
$250 for experienced attorney, $140 for new attorney); Hance, 2013 WL 85068, at *2
(awarding hourly rate of $225 for experienced attorney, $200 for newer attorney, and $50
for paralegal staff).
Accordingly, the court awards $2,904.83 in attorneys’ fees. The court also grants
plaintiff’s request for an award of $363.61 in recoverable costs.
Based on the foregoing, plaintiff’s motion for default judgment (Item 36) is
GRANTED. Plaintiff is awarded $500.00 for defendants’ violation of the FDCPA, $2,904.83
in attorney’s fees, and $363.61 in costs.
The Clerk of the Court is directed to enter judgment accordingly, and to close this
\s\ John T. Curtin
JOHN T. CURTIN
United States District Judge
Dated: March 24, 2016
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