Mills v. ACS Recovery, Inc.
1:13-cv-00998
W.D.N.Y.Mar 10, 2014Background
- Plaintiff Delwayne Mills (Indiana resident) sued ACS Recovery, Inc. (New York debt collector) under the Fair Debt Collection Practices Act (FDCPA) for repeated phone calls attempting to collect a debt allegedly owed by plaintiff’s son.
- During the year before suit, plaintiff received over 20 calls at home and at work after he informed ACS he was not the debtor, the debtor did not live with him, and he could not provide further contact information.
- Defendant ACS did not appear or defend; the Clerk entered default on January 21, 2014, and plaintiff moved for default judgment under Fed. R. Civ. P. 55(b)(2).
- The court accepted well-pleaded complaint allegations as true for liability purposes and evaluated damages and fee requests separately.
- The court found violations of multiple FDCPA provisions (including 15 U.S.C. §§ 1692b(3), 1692c(a)(1), 1692c(a)(3), 1692d, 1692d(5), and 1692f) based on repeated post-notice calls and workplace calls.
- The court awarded statutory damages of $500, attorney’s fees of $1,728 (9.6 hours at $180/hr), and costs of $545, and directed the Clerk to enter judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether default establishes FDCPA liability | Mills: allegations (repeated calls after notice; calls to workplace) state FDCPA violations | ACS: no appearance / no opposition | Default entered; allegations deemed true; liability established under cited FDCPA provisions |
| Whether statutory damages should be awarded and amount | Mills: seeks statutory damages (≤ $1,000) for repeated, harassing calls | ACS: no appearance / no opposition | Court awarded $500 (declining $1,000 as conduct not “particularly egregious”) |
| Award of attorney’s fees and hourly rate | Mills: requests 9.6 hours at $180/hr (reasonable market rate) | ACS: no appearance / no opposition | Court found hours and $180/hr reasonable; awarded $1,728 in fees |
| Award of costs | Mills: requests $545 in costs | ACS: no appearance / no opposition | Court found costs reasonable; awarded $545 |
Key Cases Cited
- Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155 (2d Cir. 1992) (default admits well-pleaded allegations except damages)
- Flaks v. Koegel, 504 F.2d 702 (2d Cir. 1974) (damages must be proven unless liquidated or mathematically determinable)
- Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61 (2d Cir. 1981) (inferences drawn in moving party's favor on default)
- Savino v. Computer Credit, Inc., 164 F.3d 81 (2d Cir. 1998) (district court discretion in setting statutory FDCPA damages)
- Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 522 F.3d 182 (2d Cir. 2008) (framework for determining reasonable attorney’s fees)
- Simmons v. New York City Transit Auth., 575 F.3d 170 (2d Cir. 2009) (presumption favoring local prevailing hourly rates)
- Blum v. Stenson, 465 U.S. 886 (1984) (prevailing market rates guide reasonable fee determinations)