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Evans v. Portfolio Recovery Associates, LLC

United States District Court, N.D. Illinois, Eastern Division

July 12, 2017

KATHERINE EVANS, Plaintiff,
v.
PORTFOLIO RECOVERY ASSOCIATES, LLC, Defendant.

          MEMORANDUM OPINION AND ORDER

          MATTHEW F. KENNELLY, DISTRICT JUDGE

         Katherine Evans sued Portfolio Recovery Associates, LLC for violating the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692e, by sharing Evans's credit information with a credit reporting agency without indicating that she disputed the debt allegedly owed to Portfolio. The Court granted Evans's motion for summary judgment. The parties then stipulated that Evans suffered $1, 000 in damages. The Court entered judgment for $1, 000 and directed Evans to file a fee petition. Evans has moved for attorney's fees and costs totaling $62, 439.95. For the reasons set out below, the Court awards Evans fees and costs in the amount of $43, 315.75.

         Background

         Evans filed her complaint on May 21, 2015. She alleged that Portfolio, a collection agency, purchased debt she owed on a World Financial Network Bank account. The debt went into default and Portfolio attempted to collect on the debt. In March 2014, Evans sent Portfolio a letter indicating that she disputed the amount of the alleged debt. In December 2014, Portfolio provided Evans's credit information regarding the alleged debt to the Experian consumer reporting agency. Evans alleged that Portfolio failed to also indicate that she disputed the debt, in violation of 15 U.S.C. § 1692e.

         Evans moved for summary judgment on her claim. In response, Portfolio argued that Evans could not prove it was a debt collector, that the alleged debt falls under the FDCPA's definition of debt, or that Portfolio knowingly made a materially, false, deceptive, or misleading representation. Portfolio also argued that it was protected from liability by the FDCPA's bona fide error provision and that Evans lacked standing to sue. The Court found in favor of Evans on every argument. It concluded that (1) the debt clearly qualified under the FDCPA, (2) Portfolio is a debt collector, (3) Portfolio's failure to notify Experian that Evans disputed the debt was a materially false, deceptive or misleading representation; (4) Portfolio could not prevail on the bona fide error defense because the violation was the result of an affirmative policy; and (5) the presence of inaccurate credit information on Evans's credit history was sufficient to confer standing to sue.

         Following the Court's ruling, the case was referred to Magistrate Judge Kim for a settlement conference. In March 2017, the parties filed a stipulation regarding damages, in which they agreed to an entry of judgment of $1, 000 in favor of Evans. Dkt. no. 75. Two days later, the Court entered judgment in favor of Evans for $1, 000. Dkt. no. 77.

         Evans, as the prevailing party, then filed the present fee petition. Evans seeks fees for three attorneys: Michael Wood, Bryan Thompson, and Andrew Finko, at hourly rates of $372, $340, and $450, respectively. Together, the attorneys say they worked 174.5 hours on this case. Evans seeks compensation for their time as well as for expenses associated with filing the case, delivering courtesy copies, service of summons, coverage fees for another law firm, and production of transcripts. In total, Evans requests $61, 157.20 in attorney's fees and $1, 282.75 in expenses, plus another $2, 120.40 related to the reply on the fee petition.

         Discussion

         A plaintiff who prevails under the FDCPA is entitled to an award of costs and reasonable attorney's fees. Schlacher v. Law Offices of Phillip J. Rotche & Assocs., P.C., 574 F.3d 852, 856 (7th Cir. 2009) (citing 15 U.S.C. § 1692k(a)(3)). Evans prevailed on her FDCPA claim against Portfolio, who does not argue otherwise. Thus she is entitled to reasonable attorney's fees and costs.

         In calculating reasonable attorney's fees, a court "begins by calculating the lodestar-the attorney's reasonable hourly rate multiplied by the number of hours reasonably expended." Schlacher, 574 F.3d at 856 (citing Hensley v. Eckhart, 461 U.S. 424, 433-37 (1983)). The hourly rate is determined based on the market rate for counsel's services. See Johnson v. GDF, Inc., 668 F.3d 927, 933 (7th Cir. 2012). The party seeking fees bears the burden of establishing this rate. Id. The best route is to provide evidence of the attorney's actual billing rate for similar work. Id. If this is unavailable, the party may provide "evidence of rates similarly experienced attorneys in the community charge for paying clients for similar work and evidence of fee awards the attorney has received in similar cases." Id. Once the fee petitioner provides evidence of this rate, the opposing party has the burden of demonstrating why a lower rate should be awarded. Gautreax v. Chicago Housing Auth., 491 F.3d 649, 659-60 (7th Cir. 2007). Portfolio challenges both the hourly rates proposed by Evans and many of the billed hours as unreasonable.

         A. Reasonableness of the requested rates

         Evans requests hourly rates of $372 for Wood, $340 for Thompson, and $450 for Finko. She argues that these rates are reasonable because they are the attorneys' actual billing rates and they have been awarded these rates following fee petitions in other cases.

         Evans has failed to show that these hourly rates are the attorneys' actual billing rates. In support of this contention, Evans has provided the Court with affidavits from each attorney stating that these figures represent their actual hourly rates. See Pl.'s Mot. for Attorneys' Fees and Costs, Exs. B-D. An attorney's "self-serving affidavit", however, cannot by itself satisfy the plaintiff's burden of establishing the market rate. Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 556 (7th Cir. 1999). Thus Evans must provide further evidence in support of the requested rates. She argues that she has done so by providing billing invoices sent by the attorneys to other clients in which they charged the rates requested here. But none of the invoices contain any charges for work done by Thompson and therefore do not support an hourly rate of $340 for his services. See Pl.'s Mot. for Attorneys' Fees and Costs, Exs. B-C. There are two invoices listing charges for services by Wood and Finko. See id., Ex. B at Exs. 1-2. But one of these lists an hourly rate for Wood of $352, not $372. And neither of these cases was brought under the FDCPA; these invoices were for a foreclosure defense case and a bankruptcy case. See id. Thus these invoices do not establish that the hourly rates Evans has requested for Wood and Finko represent their actual billing rates for similar work.

         Evans next argues that other judges in this district have approved the rates requested here for these attorneys in similar cases. Pls.' Mot. for Attorneys' Fees and Costs 7-9. She points to Stockman v. Global Credit & Collection Corp., No. 14 C 6862, 2015 WL 4999851 (N.D. Ill. Aug. 21, 2015), in which this Court considered a fee petition that included requests to compensate Wood and Thompson at $327 per hour. Id. at *2. But the Court ultimately rejected plaintiff's requested rates and awarded attorney's fees based on an hourly rate of $300 for each attorney. Id. at *4. Evans also cites Farooq v. Portfolio Recovery, LLC, No. 15 C 6106, 2016 WL 2909650 (N.D. Ill. May 19, 2016), another FDCPA case in which this Court considered a fee petition by the same three attorneys involved in this case. But just like Stockman, this case does not support Evans's requested rates. In Farooq, the plaintiff requested hourly rates of $327, $327, and $450 for Wood, Thompson, and Finko, respectively. Id. at *1. After a detailed analysis ...


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