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Nokes v. The Cavalry Firm

United States District Court, C.D. Illinois, Springfield Division

August 3, 2016

NICOLE LEE NOKES Plaintiff,
v.
THE CAVALRY FIRM Defendant.

          OPINION

          SUE E. MYERSCOUGH, U.S. District Judge.

         Before the Court is Plaintiff Nicole Lee Nokes’ Motion in Support of Default Judgment on Sum Certain (d/e 18). Plaintiff’s Motion is GRANTED IN PART and DENIED IN PART. Plaintiff is awarded $1, 000 in statutory damages, $0 in punitive damages, and $3, 803 in attorney’s fees and costs.

         I. BACKGROUND

         On December 21, 2015, Plaintiff Nicole Lee Nokes filed a Complaint against Defendant The Cavalry Firm in this Court (d/e 1). Plaintiff claimed that Defendant violated the Fair Debt Collection Practices Act (“FDCPA”) by: (1) using false statements and threats in connection with the collection of a debt (15 U.S.C. §§ 1692e(2) and 1692f(1)); (2) failing to advise Plaintiff that Defendant is a debt collector (§ 1692e(11)); and (3) failing to send Plaintiff a “Dunning” letter (§ 1692g-g(a)(5)).[1] Plaintiff further claimed that Defendant violated the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”) by: making false statements and threats in an attempt to collect a debt.

         Service was properly made on F. Gutierrez, of Defendant’s Registered Agent, CSC Services of Nevada, Inc., on April 14, 2016 (d/e 10). Defendant failed to plead, answer, or otherwise defend the action. Plaintiff requested entry of default on (d/e 12), and United States Magistrate Judge Schanzle-Haskins ordered the entry of default on May 17, 2016 (d/e 13).

         On May 31, 2016, Plaintiff moved for a Default Judgment with responses due by June 17, 2016 (d/e 14). Upon receiving no response from Defendant, this Court entered a Default Judgment on June 27, 2016 in favor of the Plaintiff and against Defendant, with damages to be determined after a hearing (d/e 16).

         Summary of Allegations

         Plaintiff is a “consumer, ” as defined by the FDCPA (15 U.S.C. § 1692a) and the ICFA (815 ILCS 505/1). Defendant is a “debt collector, ” as defined by FDCPA. Defendant’s actions in this case were “part of the conduct of any trade or commerce, ” as defined in the ICFA. Defendant is in the business of purchasing and collecting delinquent consumer debts, including a debt purportedly owed by Plaintiff. Defendant regularly uses the mail and/or telephone to collect, or attempt to collect, delinquent debts.

         On or around November 13, 2015, Plaintiff began receiving collection calls to her cellular phone. During one of the initial calls, Plaintiff spoke with Jonathan Chambers, who informed Plaintiff that Mr. Chambers worked for Defendant and that he was collecting an overdraft fee from U.S. bank (the purported debt). Mr. Chambers stated that a lawsuit had been filed against Plaintiff and that Defendant could obtain a judgment against her. However, neither Defendant nor any other party had initiated legal proceedings against Plaintiff with respect to the purported debt. During this phone call, Plaintiff was subjected to various threats regarding what would happen if she did not pay the debt and Mr. Chambers offered, on behalf of Defendant, to settle the debt. Mr. Chambers did not disclose that Defendant was a debt collector and that any information gained in the conversation would be used for the purposes of debt collection.

         Defendant made several additional attempts to contact Plaintiff. Plaintiff called Defendant on November 24, 2015. Plaintiff first spoke with a representative of Defendant, Jay Martinez. Mr. Martinez did not disclose that Defendant was a debt collector and that any information it gained would be used for the purpose of debt collection. Mr. Martinez provided Plaintiff with information regarding the purported debt and sought payment. Mr. Martinez also told Plaintiff that she had the right to an attorney but that an attorney could not represent her in small claims court.

         Because this information conflicted with Mr. Chambers’ informing Plaintiff that a lawsuit had been filed, Plaintiff asked to speak with Mr. Chambers. Mr. Chambers again used various threats in an attempt to get Plaintiff to pay the purported debt. Mr. Chambers also offered to email Plaintiff documentation regarding the purported debt and a payment agreement. Plaintiff received an email generated from Defendant through DocuSign. The email contained an attachment which outlined terms of a payment agreement. Nowhere in the attachment does Defendant identify itself as a debt collector. See Ex. A to Compl. (d/e 1-1).

         Prove Up Hearing

         On July 7, 2016, Plaintiff filed a Motion in Support of Default Judgment on Sum Certain (d/e 18) requesting $1, 000 in statutory damages under the FDCPA, $3, 000 in punitive damages under the ICFA, and $5, 828 in attorney’s fees and costs. In support of Plaintiff’s claims for damages, Plaintiff provided an itemization of attorney’s fees and costs, receipts for costs incurred, and an affidavit from counsel stating that the fees were reasonable.

         On July 18, 2016, this Court held a prove-up hearing for Plaintiff to present any additional evidence to support her claim for damages. Defendant was not present at the hearing. Plaintiff’s counsel was ...


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