# Mendoza v. Capital Accounts, LLC

> District Court, M.D. Florida · May 14, 2020

URL: https://www.frixlaw.com/law-library/cases/10105141

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** May 14, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10105141

## How later opinions describe it (automated extraction)

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

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10105141. Public record. Not legal advice.