Slusher v. Asset Consulting Experts, LLC
1:19-cv-01265
W.D.N.Y.Mar 9, 2021Background
- Plaintiff Carolyn Slusher sued Asset Consulting Experts, LLC (ACE) and Michael Evans under the FDCPA (§ 1692e and § 1692e(5)), alleging ACE threatened to sue, garnish wages, pursue collections, and report her to credit agencies in attempts to collect a personal payday-loan debt.
- Service was effected on ACE via the New York Secretary of State; Michael Evans was never served and was later dismissed without prejudice.
- ACE failed to answer or respond to the complaint or the motion for default judgment; the Clerk entered default and Plaintiff moved for default judgment against ACE.
- Plaintiff alleged roughly 15 harassing contacts over months, including name-calling and threats of legal action; she sought statutory and actual noneconomic damages, fees, costs, and litigation expenses.
- The court found ACE’s default willful, concluded the pleaded facts established FDCPA liability under an objective “least sophisticated consumer” standard, and awarded damages and fees totaling $3,119 ($500 statutory; $1,000 actual noneconomic; $1,619 attorneys’ fees and costs).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether default judgment should be entered against ACE | ACE was properly served; ACE failed to appear or respond so default judgment is warranted | No response/defense (ACE did not contest) | Default judgment granted; ACE’s default deemed willful and prejudicial to Plaintiff |
| Whether ACE violated FDCPA §1692e/§1692e(5) by threatening legal action | ACE threatened imminent/legal action (suit, garnishment, reporting), which the least sophisticated consumer would view as imminent and actionable | No defense asserted (default) | Court held the allegations sufficient to establish liability under §1692e and §1692e(5) |
| Whether Plaintiff established entitlement to statutory and actual damages | Seeks $1,000 statutory and $5,000 noneconomic based on repeated harassing contacts and emotional distress | No contest (default) | Awarded $500 statutory and $1,000 noneconomic damages (conduct not at most egregious level) |
| Whether requested attorneys’ fees and costs are reasonable | Requests specified hourly rates and 6.1 hours; $1,483.83 in fees plus $460 costs | No contest (default) | Court applied lodestar, reduced certain rates and entries, disallowed unexplained timekeeper, and awarded $1,159 in fees plus $460 costs (total $1,619) |
Key Cases Cited
- Pecarsky v. Galaxiworld.com, Ltd., 249 F.3d 167 (2d Cir.) (factors for default-judgment analysis)
- City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114 (2d Cir.) (court must determine liability before default judgment)
- Bentley v. Great Lakes Collection Bureau, 6 F.3d 60 (2d Cir.) (FDCPA liability measured by least sophisticated consumer)
- Pipiles v. Credit Bureau of Lockport, Inc., 886 F.2d 22 (2d Cir.) (threat of imminent legal action can violate §1692e(5))
- Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155 (2d Cir.) (damages must be ascertained with reasonable certainty)
- Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151 (2d Cir.) (court must determine proper rule for calculating damages after establishing liability)
- Savino v. Computer Credit, Inc., 164 F.3d 81 (2d Cir.) (default does not excuse defects in pleading; plaintiff still must state valid claims)
- Cement & Concrete Workers Dist. Council v. Metro Found. Contractors, Inc., 699 F.3d 230 (2d Cir.) (court may decide damages via affidavits without inquest)
- Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96 (2d Cir.) (lodestar method for attorney’s fees)
- Wagner v. Chiari & Ilecki, LLP, 973 F.3d 154 (2d Cir.) (FDCPA’s remedial purpose and liberal construction)