Whaley v. Asset Management Services Group, LLC
Filing
9
OPINION AND ORDER granting 6 Motion for Default Judgment. Judgment is entered in favor of plaintiff against defendant in the total amount of $7,680.00, consisting of $4,000.00 in actual damages under §1692k(a)(1), and $1,000.00 in statutory damages under §1692k(a)(2)(A), as well as $2,255.00 in attorney's fees and $425.00 in costs under §1692k(a)(3). Signed by Judge James L. Graham on 10/21/2016. (ds)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Franklin Whaley,
Plaintiff,
v.
Case No. 2:16-cv-375
Asset Management Services
Group, LLC,
Defendant.
OPINION AND ORDER
This is an action filed on April 27, 2016, by plaintiff
Franklin
Whaley.
Plaintiff
asserted
claims
against
Asset
Management Services Group, LLC, under the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. §1692, et seq., and the Ohio
Consumer Sales Practices Act, Ohio Rev. Code §1345.01, et seq.
return of service was filed on May 9, 2016.
Doc. 3.
A
After
defendant failed to file an answer, plaintiff filed a request for
entry of default on May 26, 2016.
the clerk on May 27, 2016.
An entry of default was filed by
On June 7, 2016, plaintiff filed a
motion for default judgment (Doc. 6) and mailed a copy of the
motion to defendant.
action.
Defendant has filed no pleading in this
This matter is now before the court for a ruling on the
motion for default judgment.
Because the appropriate certificate
of service is on file with the record, and because the record
demonstrates that defendant has failed to plead or otherwise defend
in this action, plaintiff is entitled to default judgment pursuant
to Fed. R. Civ. P. 55(b)(2).
The court must now determine the amount of damages to be
awarded in this case.
Plaintiff seeks an award of damages in the
amount of $5,000.00, consisting of $4,000.00 in actual damages and
$1,000.00 in statutory damages, an award of attorney’s fees in the
amount of $2,255.00, and an award of costs in the amount of
$425.00.
I. Damages
The FDCPA authorizes an award of actual damages sustained by
the plaintiff as a result of the defendant’s failure to comply with
the Act.
15 U.S.C. §1692k(a)(1).
In addition to an award for
pecuniary damages, the FDCPA permits recovery of actual damages for
emotional distress, including humiliation, embarrassment, mental
anguish, and emotional distress.
Davis v. Creditors Interchange
Receivable Management, LLC, 585 F.Supp.2d 968, 971 (N.D.Ohio 2008).
The FDCPA does not require plaintiff to satisfy the state law
elements
of
intentional
or
negligent
infliction
of
emotional
distress in order to recover damages for emotional distress.
at 971-77.
Id.
The testimony of the plaintiff alone may suffice to
establish emotional distress damages provided that a reasonable
explanation is provided about the circumstances of the injury, not
mere conclusory statements.
Bach v. First Union Nat’l Bank, 149
F.App’x 354, 361 (6th Cir. 2005).
In
this
case,
plaintiff
submitted
a
signed
declaration
describing the circumstances of the violations in the instant case.
Doc. 6-3. According to this declaration, plaintiff obtained a Visa
credit card through Household Bank in 2010, with a credit limit of
$300.
After he exceeded his credit limit, he defaulted on the
loan.
In late 2011, he was contacted by Hoffman, Weinbert &
O’Brien, a debt collector acting on behalf of Household Bank, and
reached an agreement with them to settle the debt, including fees
and other charges, for $800.
Attached to the motion is a copy of
2
the November 23, 2011, letter to plaintiff from Hoffman, Weinberg
& O’Brien stating that letter would serve as a discharge of debt
and proof that the debt had been paid in full in the amount of
$800.
In early 2016, plaintiff was contacted by defendant concerning
the same debt.
Plaintiff offered to provide proof that the debt
had been paid, but defendant told plaintiff that he had been
“scammed” and that he still owed a debt of $2,000.
Defendant
demanded that plaintiff allow defendant access to his bank account
so that defendant could withdraw three monthly payments totaling
$2,000.
Plaintiff never received any written communication from
defendant
concerning
the
debt
or
his
right
to
dispute
it.
Plaintiff stated that “this went back and forth for several months”
until he finally secured counsel. Even after defendant was advised
by counsel to have no further contact with plaintiff, the caller ID
on
plaintiff’s
occasions.
telephone
showed
defendant’s
number
on
three
See also Doc 6-4, Declaration of Steven C. Shane.
Plaintiff further stated that in 2000, he was in a motorcycle
accident and suffered severe head trauma and brain injury.
Since
that time, he has received social security disability benefits.
Plaintiff indicated that his condition causes him to react with
great anxiety when confronted with any stressful situation such as
he experienced due to defendant’s conduct, and that he experienced
difficulty sleeping and a loss of appetite as a result of his
contacts with defendant.
Whenever he spoke with defendant, he
immediately became so frustrated that he was unable to express
himself coherently.
The court concludes that plaintiff has provided more than mere
3
conclusory statements in support of his request for actual damages
due
to
mental
anguish
and
emotional
distress,
and
that
the
requested award of $4,000.00 is appropriate in this case.
II. Statutory Damages
Plaintiff also requests an award of $1,000.00 in statutory
damages.
The FDCPA also provides for an award of statutory
damages, or “such additional damages as the court may allow, but
not
exceeding
determining
$1,000[.]”
what
15
constitutes
U.S.C.
an
§1692k(a)(2)(A).
appropriate
award
In
under
§1692k(a)(2)(A), the court considers such factors as the 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)(1).
Here, the plaintiff’s
declaration indicates that defendant made false representations
concerning the character, amount or legal status of the debt in
violation of 15 U.S.C. §1692e(2), and improperly communicated with
plaintiff when it knew that plaintiff was represented by counsel in
violation of 15 U.S.C. §1692c(a)(2).
The defendant’s effort to
collect the debt went on for a period of months. The circumstances
surrounding defendant’s efforts to collect a debt over four years
after it had been fully discharged suggest that defendant’s conduct
was not only intentional, but potentially fraudulent.
The court
finds that an award of statutory damages in the amount of $1,000.00
is appropriate in this case.
III. Attorney’s Fees and Costs
The FDCPA also authorizes and award of “the costs of the
action, together with a reasonable attorney’s fee as determined by
the court.”
15 U.S.C. §1692k(a)(3).
4
The court must determine a
lodestar amount which is calculated by multiplying the number of
hours reasonably expended in the litigation by counsel by a
reasonable hourly rate.
Imwalle v. Reliance Med. Prod., Inc., 515
F.3d 531, 551-52 (6th Cir. 2008).
The court considers the market
rate that lawyers of comparable skill and experience can reasonably
be expected to command within the venue of the court of record.
Adcock-Ladd v. Secretary of Treasury, 227 F.3d 343, 350 (6th Cir.
2000).
Evidence of rates awarded in previous similar cases can be
considered as evidence of the market rate.
Van Horn v. Nationwide
Prop. & Cas. Ins. Co., 436 F. App’x 496, 698-99 (6th Cir. 2011);
Dowling v. Litton Loan Servicing LP, 320 F. App’x 442, 447 (6th
Cir. 2009).
Counsel has submitted a billing record reflecting 8.2 hours
expended in this case interviewing plaintiff, investigating the
case, and drafting letters and pleadings from April 19, 2016, to
June 6, 2016.
See Doc. 7.
The court finds that this number of
hours was reasonably expended by counsel in this case.
Counsel suggests that fees at the rate of $275 per hour is
reasonable in this case.
Counsel has submitted a declaration
stating that he has practiced law since 1973.
Doc. 8.
Since 1975,
counsel has specialized almost exclusively in consumer law and has
filed and litigated in excess of one thousand cases involving state
and federal consumer law claims. He stated in his declaration that
he was awarded fees based on the $275 hourly rate by another judge
of
this
court
(S.D.Ohio).
in
Fryant
v.
Levy
&
Associates,
2:12-cr-444
In Thompson v. Rosenthal, No. 2:14-cv-37, 2014 WL
7185313 (S.D.Ohio, Dec. 16, 2014) adopted, 2015 WL 235235 (S.D.Ohio
Jan. 16, 2015), this court adopted the report and recommendation of
5
the magistrate judge and concluded that an award of $4,000 in
compensatory damages, $1,000 in statutory damages, and attorney’s
fees at the hourly rate of $400 for an attorney with more than
thirty years of experience was appropriate.
The hourly rate
requested by counsel in this case is significantly less than that.
The court finds that the suggested hourly rate of $275 is
reasonable
in this case, and will award attorney’s fees in the
amount of $2,255.00. The court will also award costs in the amount
of $425.00, consisting of the $400.00 filing fee and $25.00 for the
cost of service.
IV. Conclusion
In accordance with the foregoing, the motion for default
judgment (Doc. 6) is granted.
Plaintiff is awarded a total sum of
$7,680.00, consisting of the following: $4,000.00 in actual damages
under
§1692k(a)(1),
and
$1,000.00
in
statutory
damages
under
§1692k(a)(2)(A), as well as $2,255.00 in attorney’s fees and
$425.00 in costs under §1692k(a)(3).
The clerk is directed to
enter final judgment in favor of plaintiff.
Date: October 21, 2016
s/James L. Graham
James L. Graham
United States District Judge
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?