Buxton v. Hartin Asset Mgmt.

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FOSTER BUXTON, Plaintiff, v. HARTIN ASSET MANAGEMENT, LLC, et al., Defendants.

No. 1:22-cv-600

United States District Court, W.D. Michigan, Southern Division

July 31, 2023

OPINION

HALA Y. JARBOU CHIEF UNITED STATES DISTRICT JUDGE

Plaintiff Foster Buxton initiated this action against Hartin Asset Management, LLC (“HAM”), DOWAR LLC (“DOWAR”), Derrick C. Warburton II, Jamal D Harris-Martin, Donald Clemons, Alexis S. Mercer, Carlis M Pope Jr., Michael B. Dura, and Kyah Z. Carson. Buxton alleges that Defendants lied in order to collect on a debt he did not owe and misused his personal information in violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq., the Driver's Privacy Protection Act (“DPPA”), 18 U.S.C. § 2721, et seq., the Michigan Regulation of Collection Practices Act, Mich. Comp. Laws § 445.251, et seq., and the Michigan Occupational Code, Mich. Comp Laws § 339.901, et seq.

On August 9, 2022, summonses for Harris-Martin, Clemons, and Carson were returned executed. (ECF No. 5.) After these defendants failed to answer or otherwise respond, the Clerk of Court entered default against them on August 10, 2022. (ECF No. 7.) On August 24, 2022, summons for Pope was returned executed. (ECF No. 8.) After Pope failed to answer or otherwise respond, the Clerk of Court entered default against him on August 25, 2022. (ECF No. 10.) On January 5 2023, summonses for HAM, DOWAR, and Warburton were returned executed. (ECF No. 17.)

After these defendants failed to answer or otherwise respond, the Clerk of Court entered default against them on January 26, 2023. (ECF No. 21.) Buxton voluntarily dismissed Mercer and Dura as defendants on January 9, 2023. (ECF No. 19.) Before the Court is Buxton's motion for default judgment on the FDCPA and DPPA claims against HAM, DOWAR, Warburton, Harris-Martin, Clemons, Pope, and Carson (ECF No. 22).

I. FACTUAL BACKGROUND

Buxton is a Michigan resident. (Compl. ¶ 9, ECF No. 1.) “On or about December 5, 2011,” Buxton took out a payday loan for $575.00 from Check ‘N Go (“CNG”) in Grand Rapids, Michigan. (Id. ¶ 51.) The money was “for personal, family, and household purposes.” (Id.) After the loan went into default, Buxton's account was successively sold to various entities, the last of whom signed a settlement agreement extinguishing the debt. (Id. ¶¶ 52-59.) Buxton was later threatened with litigation over the debt by a different entity that had gotten his account information, but they signed a settlement extinguishing the debt as well. (See id. ¶¶ 60-61.) CNG's sale of Buxton's account ended up causing “information regarding the account along with Mr. Buxton's personal and financial information [to be] periodically and repeatedly sold and resold to various entities around the country.” (Id. ¶ 62.)

Buxton alleges that Defendants “obtained [his] stolen account information along with [his] stolen personal and financial information.” (Id. ¶ 63.) Defendants then tried to collect on the debt from 2011, even though it had been extinguished. (See id. ¶¶ 65-67, 71.) Starting “[o]n or about June 14, 2022,” Buxton received several calls on his cell phone from the number 833-723-1493, informing him about “failed delivery attempts” and requesting that he call the number 866-5841199. (Id. ¶ 64.) “On or about June 16, 2022,” Buxton answered a call from the 833-723-1493 number and spoke to someone who said his name was “Trevor Langston.” (Id. ¶ 65.) Langston claimed that he worked for a law firm, “TCS & Associates,” that buys debts and sues to collect them. (Id.) He said that CNG had hired TCS to sue Buxton over an unpaid payday loan, and he provided the account number of the 2011 loan. (See id. ¶¶ 51, 65.) Langston claimed that “[a] ‘court date' had already been ‘issued' for Mr. Buxton” and “[a]n ‘estimated judgment' in the amount of $1,231.90 was going to be entered by the court against Mr. Buxton.” (Id. ¶ 65.) He also claimed that “Buxton was going to be criminally charged with ‘malicious intent to defraud a financial institution.'” (Id.) However, he said that Buxton could avoid court proceedings by immediately paying $739.14. (Id.) He also explained that Buxton's payment “would show up on [his] bank statement as either Titan Capital Services or Hartin Asset.” (Id.)

“On June 22, 2022 . . . Buxton authorized a payment of $50.00 to defendants by debit card, which defendants caused to be deposited in a Merchant Account maintained in the name of ‘Hartin Processing,' located in New York, telephone number 866-584-1199.” (Id. ¶ 66.) The next day, Buxton received an email from “Titan Capital Services” that included a payment authorization form titled “Hartin Processing.” (Id. ¶ 67; Payment Authorization Form, ECF No. 1-1, PageID.35-36.) However, Buxton did not sign the form. (Compl. ¶ 67.)

Buxton alleges that Defendants violated several provisions of the FDCPA by trying to collect an extinguished debt, repeatedly calling him, making various misrepresentations, threatening fake legal action, and not providing proper notice, among other things. (See id. ¶ 137.) Buxton provides the following allegations to connect the various defendants to this debt collection attempt. “On April 26, 2016, Mr. Warburton registered with the Clerk of Erie County, New York to do business using the assumed name ‘Titan Capital Services' ....” (Id. ¶ 17.) “On December 23, 2021, Mr. Warburton registered the internet domain www.TitanCapitalServices.com, which links to an active debt collection website that describes Titan Capital Services as a debt collection agency.” (Id. ¶ 18.) The site also lists 866-584-1199, the number mentioned in the phone calls, as a contact number. (Id.) “On December 27, 2021, Mr. Warburton registered the internet domain www.HartinAssetManagement.net, which links to an active debt collection website that describes HAM as a debt collection agency.” (Id. ¶ 19.) This site also lists 866-584-1199 as a contact number. (Id.) HAM's registered address “has been the residential address of defendant Jamal D. Harris-Martin.” (Id ¶ 10.) Defendant DOWAR's registered address “is the residential address of defendant Derrick C. Warburton II.” (Id. ¶ 14.)

Buxton alleges that all defendants are debt collectors. (Id. ¶¶ 10, 14, 16, 24, 27, 33, 39.) Each defendant allegedly “uses interstate commerce and the mails in a business the principal purpose of which is the collection of debts,” and “regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” (Id.) Buxton alleges that HAM and DOWAR, “through [their] employees and agents, directly and indirectly, participated in the unlawful efforts to collect an alleged debt from [him].” (Id. ¶¶ 13, 15.) As to the individual defendants, Buxton describes Warburton as “an officer, member, manager, employee, and agent of HAM and DOWAR,” Harris-Martin and Clemons as “officer[s], member[s], manager[s], employee[s], and/or agent[s] of HAM and DOWAR,” Pope as “an employee and/or agent of HAM and DOWAR,” and Carson as “an employee and agent of HAM and DOWAR.” (Id. ¶¶ 16, 24, 27, 33, 39.) Furthermore, Buxton alleges that each individual defendant

created the collection policies and procedures used by HAM and DOWAR, and their employees and agents, in connection with their common efforts to collect consumer debts, (b) managed or otherwise controlled the daily collection operations of HAM and DOWAR, (c) oversaw the application of the collection policies and procedures used by HAM and DOWAR, and their employees and agents, (d) drafted, created, approved and ratified the letters, communications, scripts and tactics used by HAM and DOWAR, and their employees and agents, to collect debts from consumers, including the letters, communications, scripts and tactics that were used to attempt to collect an alleged debt from Mr. Buxton as stated in this complaint, (e) ratified the unlawful debt collection practices and procedures used by HAM and DOWAR, and their employees and agents, in connection with their common efforts to collect consumer debts, and (f) had knowledge of, approved, participated in, and ratified the unlawful debt collection practices used by HAM and DOWAR, and their employees and agents, in attempts to collect an alleged debt from Mr. Buxton as stated in this complaint.

(Id. ¶¶ 22, 25, 28, 34, 40.) He also claims that each individual defendant “directly and indirectly participated in the unlawful efforts to collect an alleged debt from [him].” (Id. ¶¶ 23, 26, 29, 35, 41.)

Buxton also alleges that Defendants, “[i]n connection with efforts to collect an alleged debt from [him], . . . obtained and used personal information regarding Mr. Buxton from an internet skip-tracing database” that “was derived in part from non-public motor vehicle records” without having any “permissible use” for that information.^[1] (Id. ¶¶ 117-18, 130.) He further alleges that either Defendants, or “the entity that obtained [his] personal information from the database and disclosed [it] to defendants, made a false representation to the provider of the database to obtain [the] personal information.” (Id. ¶¶ 126-27.) Buxton contends that these actions violated the DPPA. (See id. ¶ 139.)

II. LEGAL STANDARD

Rule 55(b) of the Federal Rules of Civil Procedure governs the entry of default judgment:

(b) Entering a Default Judgment.

(1) By the Clerk. If the plaintiff's claim is for a sum certain or a sum that can be made certain by computation, the clerk-on the plaintiff's request, with an affidavit showing the amount due-must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person.

(2) By the Court. In all other cases, the

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