United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge.
Jacqueline Vomberg ("Vomberg") filed suit against
Praxis Financial Solutions, Inc. ("Praxis") for
various violations of the Fair Debt Collection Practices Act
("FDCPA") and the similar Wisconsin Consumer Act -
Debt Collection ("WCADC"). (Docket #1 at 3-8). The
plaintiff filed a motion for entry of default judgment
(Docket #7), which the Clerk of Court granted, together with
an accompanying motion for default judgment. (Docket #8). The
plaintiff requests the Court to enter default judgment on
liability, and award monetary damages. (Docket #8 at 1).
alleges that she incurred a payday loan debt that was
referred to Praxis for collection. (Docket #8-3). On April 4,
2013, Vomberg filed a chapter 7 bankruptcy petition in the
United States Bankruptcy Court, Eastern District of
Wisconsin. (Docket #1 ¶ 6). Vomberg alleges that this
specific debt was properly scheduled and thus discharged in
the final Order of Discharge issued on July 17, 2013 .
(Docket #1 ¶ 8).
two years later, on July 13, 2015, Praxis, acting on behalf
of the payday store, called Vomberg in an attempt to collect
the debt. (Docket #1 ¶ 9). Vomberg informed the person
on the other end, identified as Lisa Clark, that the debt had
been discharged in bankruptcy. (Docket #1 ¶ 10; Docket
#8-3 8.) Ms. Clark stated that Vomberg "still owed the
debt until [Vomberg] confirmed to Praxis that Pay Day Loan
store was scheduled in [the] bankruptcy petition."
(Docket #8-3 8; see also Docket #1 ¶ 10). A
short time later, Vomberg called Praxis and confirmed that
the Pay Day Loan store debt was incurred before the
bankruptcy petition was filed. (Docket #1 ¶¶ 11,
result of these incidents, Vomberg alleges that she has
suffered and continues to suffer stress, aggravation,
emotional distress, and mental anguish. (Docket #1 ¶
the Clerk of Court has entered default against the defendant,
the Court must accept all well-pleaded facts relating to
liability as true. Graham v. Satkoski, 51 F.3d 710,
713 (7th Cir. 1995). "As a general rule, a default
judgment establishes, as a matter of law, that defendants are
liable to plaintiff as to each cause of action alleged in the
complaint." O'Brien v. R.J. O'Brien &
Associates, Inc., 998 F.2d 1394, 1404 (7th Cir. 1993)
(quoting United States v. DiMucci, 879 F.2d 1488,
1497 (7th Cir. 1989)). However, that does not relieve the
plaintiff of the responsibility to prove up its damages under
Rule 55(b)(2) of the Federal Rules of Civil Procedure.
Indeed, "even when a default judgment is warranted based
on a party's failure to defend, the allegations in the
complaint with respect to the amount of the damages are not
deemed true, " and the Court must conduct an inquiry to
ascertain the amount of damages with reasonable certainty.
e360 Insight v. The Spamhaus Project, 500 F.3d 594,
602 (7th Cir. 2007) (quoting In re Catt, 368 F.3d
789, 793 (7th Cir. 2004)). Judgment by default may not be
entered without a hearing on damages unless "the amount
claimed is liquidated or capable of ascertainment from
definite figures contained in the documentary evidence or in
detailed affidavits." Id. (quoting Dundee
Cement Co. v. Howard Pipe & Concrete Prods., Inc., 722
F.2d 1319, 1323 (7th Cir. 1983)).
Complaint provides a ceiling for available remedies. Federal
Rule of Civil Procedure 54(c) provides that: "A default
judgment must not differ in kind from, or exceed in amount,
what is demanded in the pleadings. Every other final judgment
should grant the relief to which each party is entitled, even
if the party has not demanded that relief in its
pleadings." Fed.R.Civ.P. 54(c). Rule 54(c) merely
formalized this well-settled rule. 10A Charles Alan Wright,
Arthur R. Miller & Mary Kay Kane, Fed. Prac. & Proc. Civ.3d
§ 2688 (citing Thomson v. Wooster, 114 U.S.
104, 113-114 (1885)). This rule serves to protect defendants
"who choose to default, relying on the damage ceilings
contained in plaintiffs' prayers." Appleton
Elec. Co. v. Graves Truck Line Inc., 635 F.2d 603, 611
(7th Cir. 1980).
motion for default judgment requests as damages: (1) FDCPA
statutory damages in the amount of $1, 000.00; (2) WCADC
statutory damages in the amount of $1, 000.00; (3)
Attorneys' Fees in the amount of $2, 217.50; and (4)
costs in the amount of $455.00. (Docket #8 at 1). The Court
will discuss each request in turn.
1692k(a) of Title 15 of the United States Code allows for the
award of any actual damages; in the case of any action
brought by an individual, statutory damages not to exceed $1,
000.00; and the costs of the action, together with a
reasonable attorney fee as determined by the court. "The
FDCPA does not require proof of actual damages as a precursor
to the recovery of statutory damages." Keele v.
Wexler, 149 F.3d 589, 593 (7th Cir. 1998). In assessing
whether part or all of the $1, 000.00 in statutory damages
shall be awarded, the court generally is to consider the
frequency and persistence of non-compliance by the debt
collector, the nature of such non-compliance, and the extent
to which the non-compliance was intentional. 15 U.S.C. §
1692k(b)(1); see also Tolentino v. Friedman, 46 F.3d
645, 651 (7th Cir. 1995).
Vomberg requests $1, 000.00 in statutory damages, the maximum
amount allowed, however, makes no argument as to why that
amount is appropriate in this circumstance. The Court
declines to award the maximum amount in statutory damages
because Praxis's violations were neither frequent nor
persistent; indeed, the alleged violations were the result of
only one phone call. Additionally, no facts suggest the
non-compliance was intentional, and the lack of a follow-up
call by Praxis is indicative of an inference that the call
was a misunderstanding. As such, the Court finds an
appropriate amount of FDCPA statutory damages to be $200.00.
See Bartlett v. Heibl,128 F.3d 497, 499 (7th Cir.
1997) ("[I]t is within the district court's
discretion to decide whether and if so how much to award, up
to the $1, 000 ceiling" of statutory damages); see
also Foutz v. Coast to Coast Fin. Solutions, Inc., No.