United States District Court, W.D. Washington, Seattle
ORDER GRANTING PLAINTIFF'S MOTION FOR DEFAULT
S. LASNIK UNITED STATES DISTRICT JUDGE.
matter comes before the Court on plaintiff Elizabeth
Taylor's motion for entry of default judgment. Dkt. #20.
Plaintiff alleges that defendants Asset, Consulting Experts,
LLC (“Asset”), Michael Evans and Premier
Portfolio Group (“Premier”) violated provisions of the
Fair Debt Collection Practices Act (“FDCPA”).
Dkt. #7 (Compl.) at ¶ 1; see 15 U.S.C. 1692
et seq. She requests an award of $6, 586.50 in
damages. Dkt. #20 at 1.
alleges that defendants left a voicemail message for her on
February 14, 2017. This stated, “We are contacting you
today from [Premier] regarding documentation that's in
our office that we need a verbal statement on. Please press
zero to speak to a representative or call
800-918-3181.” Dkt. #20-4 (Taylor Decl.) at ¶ 3.
On the same day, defendants also called plaintiff's place
of employment, and told her boss that they were trying to
contact her “because of a bad check that had been
passed.” Id. at ¶ 4. Plaintiff did not
authorize defendants to communicate with her boss or any
other third party. Id. at ¶ 7. On February 20
and February 21, 2017, defendants left additional voicemail
messages stating that they were contacting plaintiff
“regarding a bad check that was passed through [their]
office with [plaintiff's] name, social security number,
account number, and routing number attached.”
Id. at ¶¶ 5-6. Plaintiff states that
defendants' claim regarding a “bad check” is
“entirely false.” Id. at ¶ 8.
February 13, 2018, plaintiff filed a complaint against
defendants, alleging violations of the FDCPA. Dkt. #1 at
¶¶ 15-18. On April 10, 2018, plaintiff filed an
“Ex Parte Motion for Leave to Engage in Discovery Prior
to Rule 26(f) Conference” for the purpose of
identifying the owners/operators of Premier and obtaining an
address at which they could be served. Dkt. #3. This was
granted on April 12, 2018. Dkt. #4. On April 30, 2018,
plaintiff served a subpoena on GoDaddy.com LLC to determine
the identity of the registrant of the domain name
“PREMIERPORTFOLIOGROUP.COM.” Dkt. #5 at ¶ 3;
see Ex. E, Dkt. #20-5; Ex. F, Dkt. #20-6. She
determined that Michael Evans and Asset were the owners of
the domain name. Id. at ¶ 4. Plaintiff then
filed a First Amended Complaint on December 4, 2018, adding
Evans and Asset as defendants. Dkt. #7; see Dkts.
claims that defendants violated the FDCPA in four ways.
First, they failed to disclose their identities as debt
collectors. Compl. at ¶ 15, see 15 U.S.C.
§ 1692d. Second, they failed to disclose that their
communications were directed toward collecting a debt.
Id. at ¶ 16; see 15 U.S.C. §
1692e. Third, they communicated with a third party without
her consent in connection with the collection of a debt.
Id. at ¶ 17; see 15 U.S.C. 1692b.
Fourth, they made the false statement that they were calling
regarding a “bad check.” Id. at ¶
18; see 15 U.S.C. 1692e. Default was entered against
all three defendants on January 9, 2019. Dkts. #16-#18;
see Ex. A, Dkt. #20-1; see Ex. B, Dkt.
#20-2. Plaintiff requests an award of $1, 000 in statutory
damages, $424 in costs, and $5, 162.50 in attorney's
fees. Dkt. #20 at 13.
entry of default, the well-pleaded allegations of the
complaint relating to defendant's liability are taken as
true, and the defaulting party is deemed to have admitted all
allegations in the complaint pertaining to liability.”
Khuu v. Nguyen, No. C08-0312RSL, 2009 WL 1531606, at
*1 (W.D. Wash. June 1, 2009) (citing TeleVideo System,
Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir.
1987)). The Court need not make detailed findings of fact as
long as the allegations contained in the pleadings are
sufficient to establish liability. Fair Hous. of Marin v.
Combs, 285 F.3d 899, 906 (9th Cir. 2002) (citing
Adriana Int'l Corp. v. Thoeren, 913 F.2d 1406,
1414 (9th Cir. 1990)).
Statutory Damages under the FDCPA
term ‘debt collector' means any person who uses any
instrumentality of interstate commerce or the mails in any
business the principal purpose of which is the collection of
any debts, or who regularly collects or attempts to collect,
directly or indirectly, debts owed or due or asserted to be
owed or due another.” 15 U.S.C.A. § 1692a.
“[O]fficers may be held personally liable on a showing
that ‘they (1) materially participated in collecting
the debt at issue; (2) exercised control over the affairs of
the business; (3) were personally involved in the collection
of the debt at issue, or (4) were regularly engaged, directly
or indirectly, in the collection of debts.'”
Smyth v. Merchants Credit Corp., No. C11-1879RSL,
2012 WL 588744, at *2 (W.D. Wash. Feb. 22, 2012) (quoting
Smith v. Levine Leichtman Capital Partners, Inc.,
723 F.Supp.2d 1205, 1214 (N.D. Cal. 2010)).
have found that voice mail messages from debt collectors to
debtors are ‘communications' regardless of whether
a debt is mentioned in the message.” Koby v. ARS
Nat. Servs., Inc., No. CIV. 09CV0780 JAHJMA, 2010 WL
1438763, at *3 (S.D. Cal. Mar. 29, 2010) (citing Berg v.
Merchants Assoc. Collection Div., Inc., 586 F.Supp.2d
1336 (S.D. Fla. 2008)); see Mandelas v. Daniel N. Gordon,
PC, No. C10-0594JLR, 2011 WL 9383, at *2 (W.D. Wash.
Jan. 3, 2011). “Most courts that have considered the
issue have concluded that ‘voicemails are
communications that must conform to the disclosure
requirements of section 1692e(11).'” Erez
v. Steur, No. C12-2109RSM, 2014 WL 6069847, at *3
(W.D. Wash. Nov. 13, 2014) (quoting Lensch v. Armada
Corp., 795 F.Supp.2d 1180, 1189 (W.D. Wash. 2011)).
a debt collector “may not engage in any conduct the
natural consequence of which is to harass, oppress, or abuse
any person in connection with the collection of a
debt.” 15 U.S.C. § 1692d. This includes “the
placement of telephone calls without meaningful disclosure of
the caller's identity.” Id. “The
Ninth Circuit has not yet addressed what is required to
satisfy the ‘meaningful disclosure' element
… however district courts in the Circuit increasingly
agree that meaningful disclosure ‘requires that the
caller must state his or her name and capacity, and disclose
enough information so as not to mislead the recipient as to
the purpose of the call.'” Moritz v. Daniel N.
Gordon, P.C., 895 F.Supp.2d 1097, 1104 (W.D. Wash. 2012)
(quoting Hosseinzadeh v. M.R.S. Assoc., Inc., 387
F.Supp.2d 1104, 1112 (C.D. Cal. 2005)). “Whether
conduct violates § 1692d requires an objective analysis
that considers whether the ‘least sophisticated
debtor' would find the conduct harassing, oppressive, or
abusive.” Healey v. Trans Union LLC, No.
C09-0956JLR, 2011 WL 1900149, at *6 (W.D. Wash. May 18, 2011)
(quoting Guerrero v. RJM Acquisitions LLC, 499 F.3d
926, 934 (9th Cir. 2007)).
February 14, 2017, defendants left a voicemail message for
plaintiff that did not disclose their identity as a debt
collector or the purpose of the communication, stating only,
“We are contacting you … regarding documentation
that's in our office that we need a verbal statement
on.” Taylor Decl. at ¶ 6. The voicemail messages
left on February 20 and 21 clarified that the communication
was regarding a “bad check, ” but did not
disclose defendants' identity as a debt collector.
Id. at ¶¶ 8-9; see Moritz, 895
F.Supp.2d at 1104.
a debt collector “may not use any false, deceptive, or
misleading representation or means in connection with the
collection of any debt.” 15 U.S.C. § 1692e. This
includes a failure to disclose in an initial oral
communication with a consumer that “the debt collector
is attempting to collect a debt and that any information
obtained will be used for that purpose.” Id.
at § 1692e(11). Defendants' voice messages did not
disclose that they were debt collectors attempting to collect
a debt. Taylor Decl. at ¶¶ 6-8. This also includes
the false representation of “the character, amount, or
legal status of any debt.” 15 U.S.C. § 1692e(2).
Id. “A debt collector's false or
misleading representation must be ‘material' in
order for it to be actionable under the FDCPA.”
Tourgeman v. Collins Fin. Servs., Inc., 755 F.3d
1109, 1119 (9th Cir. 2014), as amended on denial of
reh'g and reh'g en banc (Oct. 31, 2014) (quoting
Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1033
(9th Cir. 2010). “In examining ...