Kulikova v. NewRez LLC

Background

Monika Kulikova’s complaint asserted claims against an entity identified as “Guardian Asset Management (or Guardian Asset Management, Inc.).” She alleged that the entity’s employees or agents trespassed on her property several times and left notices at her front door. Kulikova served the complaint and summons, which named “Guardian Asset Management.” After the response period passed, the Clerk entered the default of Guardian Asset Management.

DGG RE Investments LLC moved to set aside the default, arguing that it was a non-party because neither the complaint nor the summons named DGG. DGG acknowledged that it does business as “Guardian Asset Management.” DGG also did not dispute that its service agent was the individual served with the summons and complaint or that its address matched the address shown on the notices left at Kulikova’s property.

Court’s analysis

The court concluded that Kulikova intended to sue DGG but used an incorrect name, a situation known as a misnomer. Because DGG was adequately served and was the intended defendant, the court found that amending the summons and complaint was proper. The court therefore denied DGG’s motion to set aside the default, which was based on DGG’s argument that it was not a party.

The court denied Kulikova’s motion for default judgment because the complaint did not state a legally sufficient claim against DGG. The Fourth Claim alleged that the defendants violated 15 U.S.C. § 1692g, part of the Fair Debt Collection Practices Act, by failing to respond to requests for loan “validation.” The court stated that this provision applies only to “debt collectors” and that Kulikova alleged no facts showing that DGG was a debt collector.

The court also found the Sixth Claim insufficient. That claim alleged that DGG violated the Consumer Financial Protection Act when its agents or vendors trespassed on Kulikova’s property. The court stated that the Act does not provide a private right of action, meaning an individual cannot bring that claim directly under the statute. The court additionally noted that Kulikova’s default-judgment motion was procedurally deficient because it was included in her opposition rather than filed as a separate document and was noticed for hearing fewer than the required 35 days after filing.

Disposition

The court vacated the scheduled hearing. It denied DGG’s motion to set aside the default and denied Kulikova’s motion for default judgment. It deemed the summons amended retroactively so that “Guardian Asset Management” was replaced by “DGG RE Investments LLC.” The court also granted Kulikova leave to substitute DGG’s name for Guardian Asset Management and amend her claims against DGG in a First Amended Complaint due by December 13, 2024, consistent with the court’s November 26, 2024 order.