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Walter v. HSM Receivables

United States District Court, District of Colorado

April 30, 2015

TORIE WALTER, Plaintiff,
v.
HSM RECEIVABLES and WARD CAMERON McMULLEN, Defendants.

ORDER ON (1) PLAINTIFF’S MOTION FOR STATUTORY DAMAGES (ECF No. 42) AND (2) PLAINTIFF’S MOTION FOR ATTORNEY’S FEES AND COSTS (ECF No. 43)

Raymond P. Moore United States District Judge

This matter is before the Court on Plaintiff Torie Walter’s (“Plaintiff”) Motion for Statutory Damages (ECF No. 42) and on her Motion for Attorney’s Fees and Costs (ECF No. 43) (collectively, the “Motions”). Defendants HMS Receivables and Ward Cameron McMullen (together “Defendants”), represented by counsel, have filed no response to the Motions and the time to do so has passed. For the reasons set forth below, the Motion for Statutory Damages is GRANTED, and the Motion for Attorney’s Fees and Costs is GRANTED in part, and DENIED in part.

I. BACKGROUND

On March 5, 2013, Plaintiff brought suit against Defendants pursuant to the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §1692 et seq. (ECF No. 1.) Defendants filed an Answer and Counterclaim. (ECF No. 9.) The Counterclaim was subsequently dismissed by the Court. (ECF Nos. 27, 39.) Defendant Ward Cameron McMullen (“McMullen”) owns Defendant HSM Receivables and personally placed telephone calls to Plaintiff on his company’s behalf in an attempt to collect a debt. (ECF No. 29-1 at 3-4, ¶¶ 8-12.) On January 19, 2013, McMullen began placing these collection calls to Plaintiffs at her place of employment. (Id. at ¶ 8.) On January, 23, 2013, Plaintiff and a bookkeeper for the business told McMullen that he could not call Plaintiff there. (ECF No. 29-3 at 3.) Despite this, McMullen called her at work again on January 29 and 30. (ECF No. 29-1 at ¶¶ 11-12.) Relying on this conduct, Plaintiff filed a Motion for Summary Judgment (ECF No. 29). Although represented by counsel, neither Defendant responded. The Court granted the motion, finding Defendants in violation of 15 U.S.C. § 1692c(a)(3). (ECF No. 40.) The Clerk of the Court entered a final judgment in Plaintiff’s favor on October 24, 2014. (ECF No. 41.)

II. LEGAL STANDARDS

A. Statutory Damages.

The FDCPA was enacted in order “to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e). In furtherance of this purpose, the FDCPA allows for recovery of statutory damages, apart from proof of any actual damages, “as the court may allow, but not exceeding $1, 000.” 15 U.S.C. § 1692k(a)(2)(A). In awarding statutory damages, the Court considers three factors: “the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional ….” 15 U.S.C. § 1692k(b)(1).

B. Attorney’s Fees and Costs.

Under the FDCPA, pursuant to 15 U.S.C § 1692k(a)(3), “the costs of the action, together with a reasonable attorney’s fee as determined by the court” are available in the case of a successful action by a plaintiff. A request for fees and costs is governed by Federal Rule of Civil Procedure 54(d). The Rule requires that fees be claimed by motion. Fed.R.Civ.P. 54(d)(2)(A). Further, this Court’s Local Civil Rules require that a motion for attorney’s fees be supported by affidavit and that the motion contain for “each person for whom fees are claimed” the following:

(1) a summary of relevant qualifications and experience; and
(2) a detailed description of the services rendered, the amount of time spent, the hourly rate charged, and the total amount claimed.

D.C.COLO.LCivR 54.3(b).

A party seeking an award of attorney’s fees must establish the reasonableness of each dollar and each hour for which the party seeks an award. Jane L. v. Bangerter, 61 F.3d 1505, 1510 (10th Cir. 1995.) A “reasonable rate” is defined as “the prevailing market rate in the relevant community” for an attorney of similar experience. Guides, Ltd. v. Yarmouth Group Prop. Mgmt., Inc., 295 F.3d 1065, 1078 (10th Cir. 2002) (citation omitted). To satisfy its burden, a plaintiff must produce “satisfactory evidence-in addition to the attorney’s own affidavits-that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984).

The district court has discretion in determining the amount of an award of attorneys’ fees, particularly given the district court’s understanding of the litigation and the “desirability of avoiding frequent appellate review of what are essentially factual matters.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). The district court “need not identify and justify every hour allowed or disallowed” with respect to legal services rendered. Malloy v. Monahan, 73 F.3d 1012, 1018 (1996). “[D]oing so would only run counter to the Supreme Court’s ...


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