Belle Terrace Presbyterian Church v. CC Recovery, No. 1:2012cv00084 - Document 10 (S.D. Ga. 2014)
Court Description: ORDER denying 8 Motion for Default Judgment; directing the Plaintiff to file an Amended Complaint or notify the Court that it seeks voluntary dismissal of this action within twenty-one (21) days of this Order. Signed by Judge J. Randal Hall on 01/28/2014. (thb)
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Belle Terrace Presbyterian Church v. CC Recovery Doc. 10 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION BELLE TERRACE PRESBYTERIAN * CHURCH, * * Plaintiff, * * CV 112-084 v. * CC RECOVERY, * * Defendant. * ORDER Presently pending the Court (Doc. no. 8.) for Default Judgment. below, before is Plaintiff's For the reasons set forth Plaintiff's motion is DENIED. I. This case arises nonexistent debt an employee of from BACKGROUND Defendant's from Plaintiff. efforts On or about to collect January Yellow Local Directory contacted 5, a 2011, Plaintiff to "confirm" a nonexistent listing in the Yellow Pages. 1.) Motion (Compl. SI The caller spoke with a part-time secretary and failed to inform her that that there was no existing contract. caller did contract. not (Id.) Plaintiff a bill responded and ask for authorization Nevertheless, Yellow for services rendered. informed Yellow Local never entered into a contract for the to enter Local (Id. (Id.) into Directory SI 2.) Directory services. a that The new sent Plaintiff Plaintiff (Id.) Yellow Dockets.Justia.com Local Directory discontinued collection efforts but apparently assigned the purported debt to Defendant. On December 20, 2011, Defendant to collect a balance of $825.06, listing price and fees (Id. SI for 4, mailed a of an & Ex. emailed as well administrative, 1.) On and January 23, seeking interest collection 2012, charges services. Plaintiff's alleged debt was nonexistent and that any further contact should be directed at Plaintiff's counsel. Plaintiff's Defendant (Id., Ex. that 2.) response to that letter. 2012, the (Id. SI 6.) counsel However, Defendant mailed another letter to SI counsel (Id. advised letter to as Defendant. letter cease-and-desist Plaintiff which included $499.99 for the advertisement, legal, (Id. SI 3.) 5.) The received no on February 6, Plaintiff, seeking to collect the same nonexistent debt and threatening to report the debt to a credit response, reporting agency. Plaintiff's letter. (Id., Plaintiff another (Id. SI 9.) Ex. counsel 4.) letter On (Id. sent 7, & Ex. another April seeking SI 5, to 2012, collect (Id. SI 10.) In cease-and-desist Defendant the Plaintiff's counsel responded with and-desist letter. 3.) mailed bogus debt. a third cease- No further communications were alleged. On June Defendant ("FDCPA"). 2012. 7, violated (Doc. 2012, the no. 1.) (Doc. nos. 5, 9.) Plaintiff Fair Debt filed suit Collection alleging Practices that Act Defendant was served on August 24, Defendant failed to plead or otherwise 2 respond to the Complaint, the Court entered and on November 6, default against 2012, Defendant. the Clerk of (Doc. no. 7.) Subsequently, Plaintiff filed its Motion for Default Judgment on July 3, 2013, asserting that, Procedure 55(b), Defendant. the Court should enter default judgment against (Doc. no. 8.) II. Federal pursuant to Federal Rule of Civil Rule of Civil DISCUSSION Procedure 55(b) ability to grant a default judgment, discretion Pitts ex to rel. 1353, 1356 in Pitts (S.D. itself There determine must be v. Ga. warrant a whether Seneca 2004). the sufficient judgment entered .... Sports, in the Court's and vests the court with judgment "[A] court governs should Inc., 321 be F. entered. Supp. 2d Defendant's default does not entering basis in a the default judgment. pleadings for the The defendant is not held to admit facts that are not well-pleaded or to admit conclusions of law." Nishimatsu 1206 Constr. (5th Cir. deemed to Co. 1975).1 have matters Houston are Nat'l A defendant, admitted allegations of fact." distinct v. Id. the Bank, 515 F.2d by his default, "plaintiff's 1200, is only well-pleaded This Court has explained that three essential for the entry of default 1 see Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981) (holding that Fifth Circuit decisions made on or before September 30, 1981, are binding precedent in the Eleventh Circuit). judgment: Pitts, (1) 321 jurisdiction, F. jurisdictional Supp. element, subject-matter Furthermore, 2d (2) at 1356. "[t]he jurisdiction "[t]he liability, presence of must the (3) damages. respect to the personal have the appear on the face of the complaint." A. With Court over and and defendant." Court's Id. jurisdiction must Id. Jurisdiction 2. Subject Matter Jurisdiction There pursuant is to 15 this case arises 2. subject U.S.C. matter § 1692k(d) under the Personal jurisdiction and 28 U.S.C. Defendant is 1331 case because Jurisdiction an business in Georgia, § this FDCPA. In regards to personal jurisdiction, that over entity lawfully the Complaint alleges authorized to conduct regularly conducts business in Georgia, and was engaged in the debt collection efforts giving rise to this (Compl. 11 3, case in Georgia. Court concludes proper a to subsection Jurisdiction nonresident state." basis personal pursuant statute. over that O.C.G.A. of nonresident may that § transacting defendant be 4, 7, business has & Exs. 1, jurisdiction (1) of over the exercised "transacts 9-10-91(1). 9, any under purposefully consummated some transaction in this state, done (2) within exists if some is long-arm subsection state The Defendant business this 5.) Georgia wJurisdiction in 3, on (1) act (1) this the the or if the cause of action arises from or is connected with such act or transaction, and (3) state if the exercise of jurisdiction by the does not justice." 517-18 offend Aero Toy traditional Store, LLC v. fairness Grieves, courts of this and 279 substantial Ga. App. 515, (2006). Here, it appears that Defendant is a nonresident entity that purposefully engaged in debt collection efforts in Georgia, and the cause efforts. subsection at was are (1) (N.D. collector subject Moreover, Process to of Ga. 3, 4, from 7, 9, to those & Exs. meet 1, the June Inc., 14, No. 1991) letters the is Fourteenth 5.) of 1991 WL 143461, nonresident to Georgia residents long-arm statute). appropriate Amendment. These See Bailey v. (determining that mailed demand jurisdiction 3, collection requirements 1:90-CV-2702, jurisdiction under Georgia's of debt the Georgia long-arm statute. that personal Clause 11 arises sufficient Brush & Assocs., *l-2 debt action (See Compl. allegations Clegg, of under See the id. at Due *2 (nonresident debt collector that sent demand letters to Georgia residents had sufficient minimum contacts with Georgia, and the exercise of jurisdiction would not offend traditional notions of fair play and substantial justice) . Consequently, personal jurisdiction against Defendant is proper. B. Liability "The FDCPA seeks to remedy abusive, deceptive, and unfair debt collection practices by debt collectors against consumers." 5 Frazier v. 1354, Absolute 1363 Collection (N.D. Ga. 2011) v. Unifund CCR Partners, Serv., Inc., (citing 15 U.S.C. 601 F.3d 1185, In order to prevail on an FDCPA claim, that: (1) from it was "consumer the object debt"; (2) collector" under the FDCPA; of 830 F. Supp. 2d 1305, In regards as to "any obligation the or 2d (11th Cir. 2010)). Plaintiff must establish activity" qualifies as arising a "debt Defendant engaged in an act or omission prohibited by the FDCPA. & Goldman, Supp. LeBlanc "collection (3) F. § 1692(e); 1190 Defendant and 767 Dunham v. 1306-07 first element, Lombardo, (S.D. Fla. the alleged obligation 2011). FDCPA defines of a Davis "debt" consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes." 15 U.S.C. is § 1692a(5) (emphasis added). The term "consumer" defined as "any natural person obligated or allegedly obligated to pay any debt." is limited to Id^ § 1692a(3) "consumer debt," (emphasis added). and it does not The FDCPA cover debts arising from business transactions. Dunham, 830 F. Supp. 2d at 1307 n.2 (citing Heintz v. 514 U.S. Lingo v. City of Albany, 2006)). The FDCPA's Jenkins, 195 Fed. purpose opposed to business entities." is Appx. "to 291, 891, protect 893 293 (1995); (11th Cir. individuals as Garcia v. Jenkins/Babb LLP, No. 3:11-CV-3171, 2013 WL 6388443, at *6 (N.D. Tex. Dec. 5, 2013). Here, Thus, Plaintiff is a church entity, according to the plain not a "natural person." language of section Plaintiff is not a "consumer" for FDCPA purposes. alleged debt transaction in that this case was household purposes" Plaintiff cannot cannot be "primarily under state for section a claim said to Moreover, arise personal, 1692a(5). against 1692a(3), out the of family, a or Consequently, Defendant under the Motion for FDCPA.2 III. For Default the reasons Judgment (doc. set CONCLUSION forth no. 8) above, is DENIED. deficiency in Plaintiff's FDCPA claim, file an Amended Complaint Plaintiff's or notify Due to the Plaintiff is DIRECTED to the Court that voluntary dismissal of this Action within twenty-one of t h i s it seeks (21) days Order. ORDER ENTERED at Augusta, Georgia, January, critical this /Z>i){ ~~day of 2014. / HONORABLE J. RANDAT, HALL UNITED STATES IRN DISTRICT JUDGE DISTRICT OF GEORGIA 2 To be clear, the Court's analysis is limited to FDCPA liability. The Court has not addressed whether Defendant's alleged acts may result in some other form of civil or criminal liability.
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