Wynne v. American Portfolio Recovery, Inc.
-CLERK TO FOLLOW UP---DECISION AND ORDER GRANTING Plaintiff's 8 MOTION for Default Judgment. Plaintiff is awarded $500.00 for Defendant's violations of the FDCPA, $1,948.75 in attorney's fees, and $400.00 in costs, for a total award of $2,848.75. The Clerk is directed to enter judgment accordingly and to close this case. Signed by Hon. John T. Curtin on 2/17/2016. (JEC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
AMERICAN PORTFOLIO RECOVERY, INC.,
On June 24, 2014, plaintiff Billie Wynne filed a complaint against American Portfolio
Recovery, Inc., alleging various violations of the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692, et seq. Defendant 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 September 10, 2014. Item 6. Presently before the
court is plaintiff's motion for default judgment pursuant to Fed. R. Civ. P. 55(b)(2). Item
8. For the following reasons, plaintiff's motion is granted.
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).
The facts alleged in the complaint are relatively straightforward. At all times relative
to the claims asserted, defendant was alleged to be acting in the capacity of a business
entity engaged in the business of debt collection, within the meaning of 15 U.S.C.
§ 1692a(6) (definition of “debt collector”).
Plaintiff alleges that on June 16, 2014,
defendant attempted to collect a consumer debt by leaving a voicemail on plaintiff’s
telephone, threatening the consequences of legal action, and misrepresenting its status
as a law office, in violation of a number of the provisions of the FDCPA.1 See Item 1,
Specifically, plaintiff alleges that defendant’s debt collection activity violated sections 1692d
(prohibiting a debt collector from engaging in conduct the natural consequence of which is to harass,
oppress, or abuse any person in connection with the collection of a debt); 1692e (prohibiting the use of
false, deceptive, or misleading representation or means in connection with the collection of a debt);
1692e(4) (prohibiting representation or implication that nonpayment of a debt will result in arrest);
1692e(5) (prohibiting a debt collector from threatening to take any action that cannot legally be taken or
¶¶ 12-30. Accordingly, for the purposes of this motion, plaintiff has sufficiently alleged
facts to establish defendant’s liability under the FDCPA.
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
$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, defendant is deemed to have admitted the wellpleaded allegations of the complaint indicated above. However, considering the relative
infrequency of pleaded instances of noncompliance (one voicemail message), the limited
number of individuals adversely affected, and the absence of any further information
regarding the debt collector's resources or intent, the court finds that these violations of the
that is not intended to be taken); 1692e(7) (prohibiting false representation or implication that the
consumer committed a crime or other conduct in order to disgrace the consumer); 1692e(10) (prohibiting
a debt collector from using any false representation or deceptive means to collect a debt or obtain
information concerning a consumer); 1692f (prohibiting the use of unfair or unconscionable means to
collect or attempt to collect a debt); and 1692e(3) (prohibiting false representation or implication that the
debt collection communication is from an attorney). See Item 1, ¶¶ 17-46.
FDCPA do 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’s counsel has submitted a declaration and billing statement
documenting a total of 9.75 hours of work on the case for which compensation is sought,
including a combined 7.25 hours by four attorneys at various hourly rates ranging from
$175/hr. to $250/hr., and 2.5 hours by a paralegal at the hourly rate of $90/hr. See Items
8, 8-1. The court finds the number of attorney hours expended on the case to be
reasonable, and the requested hourly rates to be in accordance with the prevailing market
rates in this district for FDCPA cases. 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 attorneys’ fees as follows:
4.6 hrs. @ $250.00 =
2.2 hrs. @ $225.00 =
0.45 hrs. @ $175.00=
2.5 hrs. @ $90.00 =
The court also grants plaintiff’s request for an award of $400.00 for the filing fee as
a recoverable cost.
Based on the foregoing, plaintiff’s motion for default judgment (Item 11) is
Plaintiff is awarded $500.00 for defendant’s violations of the FDCPA,
$1948.75 in attorney’s fees, and $400.00 in costs, for a total award of $2848.75.
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: February 17, 2016
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