United States District Court, D. Nevada
before the court is defendants Richland Holdings, Inc. d/b/a
AcctCorp of Southern Nevada (“AcctCorp”) and RC
Willey aka RC Willey Financial Services (“RC
Willey”, collectively “defendants”) motion
for attorney's fees. (ECF No. 28). Plaintiffs Dany
Geraldo and Wendoly Guzman filed a response (ECF No. 35), to
which defendants replied (ECF No. 38).
motion arises out of the court's grant of dismissal of
plaintiff's claims based on a finding of claim
January 19, 2001, plaintiffs entered into a valid and binding
contract for the procurement of retail merchandise with RC
Willey and began incurring charges related to the contract.
(ECF Nos. 1 & 28). Plaintiffs became delinquent by
failing to make regular payments as owed under the terms of
their contract. Id. In August 2010, pursuant to the
RC Willey revolving charge security agreement, plaintiffs
agreed that “the laws of the state in which I reside
will govern the interpretation or enforcement of this
Agreement.” (ECF No. 28).
Willey served plaintiffs in the underlying state court action
to collect the unpaid balance on plaintiffs' RC Willey
account. Id. Plaintiffs did not participate in that
action, resulting in a default judgment in favor of RC
allege that defendants, in favor of their application for
default judgment, filed a “Confidential Legal
Authorization” assigning plaintiffs' debt of $8,
080.38 from RC Willey to AcctCorp. (ECF No. 1). Plaintiffs
also allege that, included with document filings, defendants
filed an affidavit/declaration of custodian records that
includes a contractual fee of $4, 040.19, which equals fifty
percent of the entire principal balance assigned to AcctCorp.
Id. Plaintiffs also claim that defendants unlawfully
charged plaintiffs twenty-four percent interest on the total
amount due, including the contractual collection fee.
about November 19, 2014, plaintiffs filed a voluntary
petition for Chapter 13 bankruptcy. (ECF No. 28). Defendants
allege that during the bankruptcy proceedings, plaintiffs
made no attempt to include the causes of action they raise in
the instant litigation. Id. On November 17, 2015,
plaintiffs' debt was discharged. Id.
January 3, 2017, plaintiffs filed their complaint, alleging
that defendants committed several violations of the Fair Debt
Collection Practices Act (FDCPA). (ECF No. 1). Additionally,
plaintiffs alleged that defendants' violations caused
plaintiffs to suffer substantial damages, including economic
damages, emotional damages, damages to their credit history
and reputation, as well as substantial attorney's fees.
January 30, 2017, defendants filed a motion to dismiss
plaintiffs' complaint. (ECF No. 7). On July 26, 2017, the
court granted defendants' motion to dismiss. (ECF No.
23). The court held that plaintiffs' claims are precluded
because plaintiffs failed to bring their current claims as
compulsory counterclaims in the underlying state court case.
15 U.S.C. § 1692k(a)(3)
the FDCPA, if the court finds that a plaintiff brought an
action in bad faith and for the purpose of harassment, a
prevailing defendant is entitled to “attorney's
fees reasonable in relation to the work expended and
costs.” 15 U.S.C. § 1692k(a)(3). Such an award is
mandatory under the FDCPA. Graziano v. Harrison, 950
F.2d 107, 113 (3d Cir. 1991); see also De Jesus v. Banco
Popular de Puerto Rico, 918 F.2d 232, 234 (1st Cir.
Ninth Circuit, the starting point for determining reasonable
fees is the calculation of the “lodestar, ” which
is obtained by multiplying the number of hours reasonably
expended on litigation by a reasonable hourly rate. See
Jordan v. Multnomah County, 815 F.2d 1258, 1262 (9th
Cir. 1987). “The ‘lodestar' is calculated by
multiplying the number of hours the prevailing party
reasonably expended on the litigation by a reasonable hourly
rate.” Camacho v. Bridgeport Financial, Inc.,
523 F.3d 973, 978 (9th Cir. 2008) (internal quotations and
citation omitted). In calculating the lodestar, the court
must determine a reasonable rate and a reasonable number of
hours for each attorney. Chalmers v. City of Los
Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986), reh'g
denied, amended on other grounds, 808 F.2d 1373 (9th Cir.
1987). The lodestar is deemed to be presumptively reasonable,
though the district court has the discretion to consider and
upward or downward adjustment.
28 U.S.C. § 1927
28 U.S.C. § 1927:
Any attorney or other person admitted to conduct cases in any
court of the United States . . . who so multiplies the
proceedings in any case unreasonably and vexatiously may be
required by the court to satisfy personally the excess costs,
expenses, and attorneys' fees reasonably incurred because
of such conduct.
1927 authorizes federal courts to punish barratry by
requiring offending lawyers personally to satisfy their
opponents' litigation debts. It applies in any proceeding
in federal court, operates solely upon attorneys, rather than
their clients, and applies with equal force against winners