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Farrar v. Receivable Management Services

July 8, 2010

JANA FARRAR, PLAINTIFF,
v.
RECEIVABLE MANAGEMENT SERVICES, DEFENDANT.



The opinion of the court was delivered by: J. Phil Gilbert District Judge

MEMORANDUM AND ORDER

This matter comes before the Court on Plaintiff Jana Farrar's (hereinafter "Farrar") Motion for Attorneys' Fees (Doc. 48). Specifically, Farrar seeks to collect $8,287.70 in attorneys' fees and costs from Defendant Receivable Management Services (hereinafter "Receivable") pursuant to the fee-shifting provision of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. Receivable filed a Response (Doc. 51) to the instant motion, and Farrar filed a Motion for Leave to File a Reply Brief (Doc. 52) thereto. Finding the motion for leave to be made in good faith and the relief requested therein to largely comport with the applicable rules, see S.D. Ill. L. R. 5.1(c) ("Pursuant to Federal Rule of Civil Procedure 6(d) . . . , whenever a document is served electronically, three days are added to the prescribed [seven-day] response time [governing a motion for attorneys' fees, thereby creating a ten-day response period ]."), the Court GRANTS said motion (Doc. 52) and accepts Farrar's reply as timely.

For the foregoing reasons, the Court GRANTS in part and DENIES in part Farrar's request for attorneys' fees (Doc. 48).

ANALYSIS

I. Farrar's Motion for Attorneys' Fees Is Both Timely and Proper

Before it can assess the reasonableness of Farrar's request for attorneys' fees, the Court must first address a preliminary issue. Namely, Receivable contends that Farrar prematurely filed her motion for attorneys' fees, thereby breaching the settlement agreement and rendering Farrar liable for Receivable's attorneys' fees. This issue may be disposed of quickly, as Receivable's argument is without merit.

The settlement agreement between Farrar and Receivable states, in relevant part, as follows:

For purposes of recovering attorney fees only, the PARTIES agree to negotiate the amount of reasonable attorney fees to be paid to the Plaintiff's attorneys within fourteen (14) days of the effective date hereof. If the PARTIES are unable to agree on the amount of attorney fees, the PARTIES shall submit the issue to the court for determination. . . . ." (Doc. 48, p. 20) (emphasis added). As the Court understands it, the settlement agreement became effective on January 11, 2010, and Farrar filed the instant motion on January 18, seven days before the prescribed "wait and see" period expired. According to Receivable, this chronology, in and of itself, precludes Farrar from recovering attorneys' fees.

However, a plain reading of the aforementioned provision does not lend itself to this result. The Court reads the provision to provide a fourteen-day window governing payment of attorneys' fees. Put another way, the amount of attorneys' fees could be discussed before*fn1 or after execution of the settlement agreement, so long as payment occurred within fourteen days of its execution. As the text further indicates, the parties included the "wait and see" period in the settlement agreement so that they could "negotiate" plaintiff's attorneys' fees. This implies that each party would communicate and compromise with the other. See Black's Law Dictionary 1064-65 (8th ed. 2004) (listing the first definition of "negotiate" as "[t]o communicate with another party for the purpose of reaching an understanding" and the first definition of "negotiation" as "[a] consensual bargaining process in which the parties attempt to reach agreement on a disputed or potentially disputed matter") (emphasis added). However, from January 11 to January 18, neither party contacted, let alone attempted to negotiate with, the other. This justifies Farrar's premature filing, as it was reasonable for her to believe on January 18 that successful negotiation and payment of attorneys' fees by January 24 was not going to happen.

Perhaps more importantly, the Court notes that, prior to January 11, discussions regarding attorneys' fees took placebetween the parties' attorneys. The parties afforded themselves plenty of time for such discussions, as they agreed to bifurcate settlement on October 29, 2009, and Farrar received the settlement agreement in mid-December. These discussions ended with the settlement "ball" in defense counsel's court. (Doc. 52, p. 12, ¶ 9) ("On December 28, 2009, [plaintiff's counsel] sent [defense counsel] an e-mail rejecting Defendant's offer and providing a counter-offer . . . . In this same e-mail, [plaintiff's counsel] informed [defense counsel] that Defendant's [rejected] offer appeared to be in bad faith and [plaintiff's counsel] informed him that [Plaintiff] intended on filing the fee petition since it did not appear that further negotiations would be of any value."). Defense counsel not only ignored the last offer from plaintiff's attorney but, in fact, encouraged premature filing of the petition now at issue. (Doc. 52, p. 12, ¶ 10). ("On December 28, 2009, [plaintiff's counsel] received an e-mail from [defense counsel] stating that Plaintiff may need to file a fee petition.

[Defense counsel's] e-mail did not include an offer to settle attorneys' fees and costs."). This complete chronology of events illustrates that the instant motion was both timely and proper and ensures that Receivable will be paying Farrar's reasonable attorneys' fees pursuant to the applicable law.

II. Attorneys' Fees under the Fair Debt Collection Practices Act Generally

If a consumer is successful in bringing suit under the Fair Debt Collection Practices Act (hereinafter "FDCPA"), he is entitled to an award of costs and attorneys' fees, 15 U.S.C. § 1692k(a)(3) (2006); more precisely, the FDCPA states, in relevant part, as follows:

[A]ny debt collector who fails to comply with any provision of this subchapter with respect to any person is liable to such person in an amount equal to the sum of . . . [among other things,] the costs of the action, together with a reasonable attorney's fee as determined by the court [in the case of any successful action to enforce the foregoing liability].*fn2 Id. Such fees are mandatory in light of Congress' "private attorney general approach" in drafting the FDCPA. Tolentino v. Friedman, 46 F.3d 645, 651 (7th Cir. 1995); see City of Riverside v. Rivera, 477 U.S. 561, 574 (1986) (A civil rights plaintiff, like an FDCPA plaintiff, "seeks to vindicate important . . . rights that cannot be valued solely in monetary terms."). It bears mentioning that this mandated payment of fees serves a somewhat punitive purpose. Sanders v. Jackson, 209 F.3d 998, 1004 (7th ...


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