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George R. Overly v. Global Credit & Collection Corp.

July 6, 2011

GEORGE R. OVERLY,
PLAINTIFF,
v.
GLOBAL CREDIT & COLLECTION CORP., INC., DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Carlson

MEMORANDUM OPINION

I. Statement of Facts and of the Case

This case is an action brought under the Fair Debt Collection Practices Act (hereafter "FDCPA") 15 U.S.C. §1692, et seq. This matter now comes before the Court for assessment of costs and fees following the entry of an offer of judgment in favor of the plaintiff. (Docs. 13-15.)

The plaintiff commenced this action by filing a complaint on November 18, 2010, and paying the required $350 filing fee. (Doc. 1.) A summons issued and that summons was returned executed by the plaintiff on December 14, 2010. (Doc. 3.) When initial discussions between the parties revealed that the plaintiff's original complaint might be timed barred under the FDCPA's one-year statute of limitations, the plaintiff filed an amended complaint on January 20, 2011, which added factual averments within this limitations period. (Doc. 4.) The defendants filed an answer to the complaint on February 4, 2011, (Doc. 5), and a case management plan was prepared, (Doc. 10), but before an initial case management conference could be scheduled the parties announced that they had reached a settlement of this dispute. (Docs. 13-16.) Under the terms of that settlement the defendant agreed to pay damages of $1,001, as well as "reasonable attorney fees as agreed to by the parties, or if no agreement can be reached, as determined by the Court on motion." (Doc. 14.)

While the parties apparently had some halting e-mail exchanges relating to attorney fees, this exchange did not result in an agreement on fees, in part because it appears that the parties may have been inadvertently misdirecting some of their e-mail communications. (Doc. 18.) Accordingly, the plaintiff filed a motion for attorney fees and costs on June 3, 2011. (Doc. 16.) This motion sought to recover filing costs of $350.00, and attorney and paralegal fees of $8,642.00, for total costs and fees of $8,992.00. (Doc. 16.) The defendant has filed a response to this fee petition, which challenges various components of these fee claims, and urges the Court to award fees and costs totaling $2,987.50. (Doc. 18.) Thus, this matter is now ripe for resolution.

Having conducted an independent review of this petition and response, for the reasons set forth below, it is ordered that the petition is granted, in part, and denied, in part, and judgment is entered in favor of the plaintiff on this petition in the amount of $5,746.00, consisting of costs of $350.00, and attorney's fees of $5,396.00.

II. Discussion

(A) Legal Standards Governing Costs, and Attorney's Fee Calculations Under The Fair Debt Collection Practice Act

The Fair Debt Collections Practice Act, 15 U.S.C. §1692, forbids harassment, abuse or the use of misleading conduct in connection with debt collection, 15 U.S.C. §§ 1692c-f, and provides an array of civil remedies for those who are aggrieved by deceptive or intimidating debt collection practices. Specifically, the FDCPA provides that:

[A]ny debt collector who fails to comply with any provision of th[e] [FDCPA] with respect to any person is liable to such person in an amount equal to the sum of--(1) any actual damage sustained by such person as a result of such failure; (2)(A) in the case of any action by an individual, such additional damages as the court may allow, but not exceeding $1,000;

(3) in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney's fee as determined by the court. On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney's fees reasonable in relation to the work expended and costs.

15 U.S.C. § 1692k(a).

Thus, by its terms, the FDCPA provides for a panoply of remedies on behalf of plaintiffs like Overly, including actual or statutory damages, costs, and reasonable attorneys fees. The availability of each of these remedies, in turn, is further described and defined both by statute and through case-law construing the FDCPA. In this case, the parties have reached a settlement with respect to damages, with the defendant agreeing to pay $1,001, an amount which is slightly in excess of the maximum amount of statutory damages allowed under the FDCPA, which provides that the Court may award "such additional damages as the court may allow, but not exceeding $1,000." 15 U.S.C. §1692k(a)(2)(A).

The Act further authorizes a prevailing plaintiff to recover "the costs of the action." 15 U.S.C. §1692k(a)(3). These costs typically include filing and service fees and expenses, as well as reasonable postage expenses associated with the litigation. See 28 U.S.C. §1920(1)-(6), ...


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