Mendoza v. Capital Accounts, LLC

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

DOUGLAS MENDOZA,

Plaintiff,

v. Case No: 2:19-cv-824-FtM-29MRM

CAPITAL ACCOUNTS, LLC,

Defendant.

OPINION AND ORDER

This matter comes before the Court on plaintiff's Motion for

Default Judgment (Doc. #12) filed on March 18, 2020. No response

has been filed, and the time to respond has expired.

I.

On November 14, 2019, plaintiff filed a Complaint (Doc. #1)

against Capital Accounts, LLC asserting a violation of the Fair

Debt Collection Practices Act (FDCPA), the Florida Consumer

Collections Practices Act (FCCPA), and the Telephone Consumer

Protection Act (TCPA). Service of process was executed on

November 26, 2019, and a Clerk’s Entry of Default (Doc. #11) was

issued on March 4, 2020. Having obtained a default, plaintiff now

seeks a default judgment. Fed. R. Civ. P. 55(a).

When a defendant defaults, it is “deemed to admit the

plaintiff’s well-pleaded allegations of facts,” but not

conclusions of law or facts not well-pleaded. Surtain v. Hamlin

Terrace Foundation, 789 F.3d 1239, 1245 (11th Cir. 2015). To

warrant a default judgment, the facts alleged in the pleadings

must provide a sufficient basis for judgment. Id. (quoting

Nishimatsu Const. Co., Ltd. V. Houston Nat’l Bank, 515 F.2d 1200,

1206 (5th Cir. 1975)). The sufficiency standard is that

“necessary to survive a motion to dismiss for failure to state a

claim.” Id.

II.

Deeming all well-pleaded facts as admitted, plaintiff has

established the following: Defendant is a “debt collector” who

regularly collects or attempts to collect debts. Plaintiff is a

debtor who allegedly received dental services from Tower Dental

and incurred a $94.60 consumer debt, plus interest, all of which

plaintiff asserts was not actually owed. At some point, Tower

Dental sold the alleged debt or contracted with defendant to

collect the debt on its behalf.

Between October 5, 2019, and October 25, 2019, defendant

called plaintiff’s cellular telephone at least 10 times to collect

the debt using an automatic telephone dialing system (ATDS).

Plaintiff believes an ATDS was used because there would be “several

seconds of dead air” before someone spoke. Plaintiff told

defendant that he did not owe the debt and asked that defendant

stop calling, but the calls continued. On October 23, 2019,

plaintiff mailed defendant a certified letter stating that he

refuses to pay the debt and demanding that defendant cease

collection communication. Defendant signed for the certified

letter on October 26, 2019. Defendant called at least three times

thereafter, and used the ATDS for at least two of the calls.

As of November 12, 2019, defendant failed to provide plaintiff

with the five required disclosures: (1) information regarding the

amount of the debt, (2) the name of the creditor, (3) a statement

that unless the consumer disputes the validity of the debt within

30 days, the debt will be assumed to be valid by the debt collector,

(4) a statement that if the consumer notifies the debt collector

in writing within the 30 day period that the debt is disputed, the

debt collector will obtain verification of the debt or a copy of

a judgment will be mailed to plaintiff, the consumer, and (5) upon

the consumer’s written request, the debt collector will provide

the consumer the name and address of the original creditor, if

different than the current creditor.

III.

A. FDCPA

To prevail on an FDCPA claim, plaintiff must establish that

he was the object of collection activity arising from a consumer

debt, that defendant qualifies as a debt collector, and that

defendant engaged in a prohibited act or failed to perform a

requirement imposed under the FDCPA. Brown v. Credit Mgmt., LP,

131 F. Supp. 3d 1332, 1338 (N.D. Ga. 2015) (citation omitted).

Plaintiff alleges that defendant is a debt collector that violated

the FDCPA by: (1) illegally communicated with him after receiving

written notification that plaintiff wished defendant to cease

further communication; (2) falsely represented the character,

amount, or legal status of the debt not actually owed; (3) used

false representations or deceptive means to collect or attempt to

collect a debt or obtain information concerning plaintiff; (4)

used unfair and unconscionable means to collect or attempt to

collect a debt including an amount not expressly authorized; and

(5) failed to provide plaintiff written notice within five days of

the initial communication with the necessary disclosures. See 15

U.S.C. §§ 1692c, 1692e, 1692f, and 1692g.

B. FCCPA

To prevail on an FCCPA claim, plaintiff must show that

defendant asserted a legal right that does not exist, and that

defendant had actual knowledge that the right did not exist.

Finster v. U.S. Bank Nat'l Ass'n, 245 F. Supp. 3d 1304, 1318 (M.D.

Fla. 2017), aff'd, 723 F. App'x 877 (11th Cir. 2018). In

collecting consumer debts, no person shall:

. . .

(9) Claim, attempt, or threaten to enforce a

debt when such person knows that the debt is

not legitimate, or assert the existence of

some other legal right when such person knows

that the right does not exist.

Fla. Stat. § 559.72(9). Plaintiff alleges that debtor engaged in

illegal practices by communicating with plaintiff for debt

collection purposes and claiming, attempting, or threatening to

enforce a debt that defendant knows was not legitimate. Unlike

the federal counterpart, the FDCPA, Florida law is not limited to

debt collectors, but “great weight” is given to the federal courts

relating to the FDCPA. Fla. Stat. § 559.77(5).

C. TCPA

As for the TCPA claim, plaintiff provided underlying facts of

the number of calls, that it was to plaintiff’s wireless phone,

and that it was by use of an automatic dialing system, and without

the consent of plaintiff. Melvin v. Ocwen Loan Servicing LLC, No.

8:18-CV-1911-T-36SPF, 2019 WL 1980605, at *3 (M.D. Fla. May 3,

2019). Plaintiff alleges that defendant engaged in illegal

practices by calling plaintiff’s cellular telephone at least one

time and approximately 12 times without plaintiff’s consent and by

ATDS. Plaintiff alleges that least some of these calls were

knowing and willful because defendant had been informed multiple

times, including by certified mail, that plaintiff wished

defendant to stop calling. Plaintiff alleges that defendant was

on notice that if defendant falsely held any belief that plaintiff

consented to receive ATDS calls, the consent was revoked.1

An ATDS is equipment that can store or produce telephone

numbers to be called, using a random or sequential number generator

to dial the numbers. 47 U.S.C. §227(a)(1). It is unlawful for

any person to make any call using an ATDS to a cellular telephone

“unless such call is made solely to collect a debt owed to or

guaranteed by the United States.” 47 U.S.C. § 227(b)(1)(A).

D. Default Judgment and Liability

The Court finds that plaintiff has established all the

statutory requirements under each of the three statutes for

purposes of default judgment.

E. Damages

Plaintiff seeks statutory damages under the FDCPA for the

five violations. A debt collector who fails to comply with any

provision of the FDCPA is liable to the person in an amount equal

to the sum of:

(1) any actual damage sustained by such person

as a result of such failure;

(2)(A) in the case of any action by an

individual, such additional damages as the

court may allow, but not exceeding $1,000

1 The Court notes that a consumer cannot unilaterally revoke

consent if there is a bargained-for contract giving consent.

Medley v. Dish Network, LLC, No. 18-13841, 2020 WL 2092594, at *6

(11th Cir. May 1, 2020).

. . .

(3) in the case of any successful action to

enforce the foregoing liability, the costs of

the action, together with a reasonable

attorney's fee as determined by the court. On

a finding by the court that an action under

this section was brought in bad faith and for

the purpose of harassment, the court may award

to the defendant attorney's fees reasonable in

relation to the work expended and costs.

15 U.S.C. § 1692k(a).

As to the state statute, plaintiff is entitled to actual and

statutory damages much like the FDCPA:

Any person who fails to comply with any

provision of s. 559.72 is liable for actual

damages and for additional statutory damages

as the court may allow, but not exceeding

$1,000, together with court costs and

reasonable attorney's fees incurred by the

plaintiff. In determining the defendant's

liability for any additional statutory

damages, the court shall consider the nature

of the defendant's noncompliance with s.

559.72, the frequency and persistence of the

noncompliance, and the extent to which the

noncompliance was intentional.

Fla. Stat. § 559.77(2). The Court finds that plaintiff is

entitled to the maximum $1,000 under the FDCPA and the FCCPA, and

will award a single combined amount of $1,000 for the violations.

The Court finds that double recovery is not appropriate. See,

e.g., Abby v. Paige, No. 10-23589-CIV, 2013 WL 141145, at *10 (S.D.

Fla. Jan. 11, 2013), aff'd, 553 F. App'x 970 (11th Cir. 2014)

(finding that a second award of “additional damages” was not

warranted); Titus v. Commercial Recovery Sys., Inc., No. 8:13-CV-

00567-T-27, 2014 WL 55016, at *3 (M.D. Fla. Jan. 7, 2014) (“A court

may award a maximum amount of $1,000.00 in statutory damages per

action, rather than per violation, for violations brought under

the FDCPA and the FCCPA.”)

As to the TCPA, a person may file suit to recover actual

monetary loss from the violation, or to receive $500 in damages

for each violation, whichever is greater. If defendant violated

the statute willfully or knowingly, the Court may “increase the

amount of the award to an amount equal to not more than 3 times

the amount.” 47 U.S.C. § 227(b)(3). The Court will allow damages

for each of 12 calls alleged in the Complaint and deemed admitted

but not for the 15 requested by plaintiff because the request is

not supported by the admitted allegations. The statutory damages

for 12 separate calls would be $6,000, with the multiplier for

willful action bringing the total to $18,000. This provides a

total amount of damages of $19,000. No actual damages are alleged.

F. Attorney Fees and Costs

Plaintiff seeks $460 in costs comprised of the filing fee and

the amount paid to the process served. Both are taxable costs

under 28 U.S.C. § 1920, and both are permitted under the statutes

at issue. The Court will allow $460 in costs.

A reasonable attorney fee is calculated by multiplying the

number of hours reasonably expended by the reasonable hourly rate.

Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The party seeking

an award of fees should submit adequate documentation of hours and

rates in support, or the award may be reduced. Id. The burden

is on the fee applicant “to produce satisfactory evidence” that

the rate is in line with those prevailing in the community. Blum

v. Stenson, 465 U.S. 886, 896 n.11 (1984).

Plaintiff’s counsel charges an hourly rate of $300, and

counsel expended 7.7 hours on the case, with approximately 2.3

hours more anticipated for a total of 10 hours. The Court finds

that the hourly rate is reasonable in light of the prevailing rates

in the Fort Myers area. The Court will allow the 7.7 hours

supported by a billing record but declines to allow for anticipated

work that is unsupported. The 7.7 hours includes the time spent

on drafting the motion for default judgment. The Court will grant

attorney’s fees in the amount of $2,310.00.

Accordingly, it is hereby

ORDERED:

1. Plaintiff's Motion for Default Judgment (Doc. #12) is

GRANTED. The Clerk shall enter judgment in favor of

plaintiff and against defendant awarding damages in the

amount of $1,000 under the FDCPA and the FCCPA; and $18,000

under the TCPA, for a total of $19,000. Plaintiff is also

awarded attorney fees in the amount of $2,310, plus costs

in the amount of $460.

2. The Clerk is further directed to terminate all deadlines,

and to close the file.

DONE and ORDERED at Fort Myers, Florida, this 14th day

of May, 2020.

— (2. □ i

VAAA DH

JQH E. STEELE

5 ISR UNITED STATES DISTRICT JUDGE

Copies:

Counsel of Record