Pioneer Credit Company of Alabama, Inc. v. Gray

Filing 22

OPINION AND ORDER as follows: (1) Appellee Sammy Allen Gray, Jr.'s 17 Motion for Supplemental Award of Attorney's Fees is granted; (2) Appellee Sammy Allen Gray, Jr. shall have and recover from appellant Pioneer Credit Company of Alabama, Inc., d/b/a 1st South East Acceptance Corporation the following: attorney's fees totaling $ 13,020.00 and the additional sum of $ 50.00 in expenses. Signed by Honorable Judge Myron H. Thompson on 10/15/2013. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION

IN RE:
SAMMY ALLEN GRAY, JR.,
Debtor.

PIONEER CREDIT COMPANY
OF ALABAMA, INC., d/b/a
1st South East Acceptance
Corporation,
Appellant,
v.
SAMMY ALLEN GRAY, JR.,
Appellee.

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CIVIL ACTION NO.
1:10cv983-MHT
(WO)

OPINION AND ORDER
This is an appeal from the bankruptcy court’s order
granting attorney’s fees to appellee Sammy Allen Gray, Jr.
The cause is currently before the court on Gray’s motion
for a supplemental award of attorney’s fees.

Because the

court finds that Gray is entitled to supplemental fees for
work performed in defending this appeal and because the
amount of fees requested is reasonable, the motion will be
granted.

This matter arises out of Gray’s Chapter 13 bankruptcy
filing.

However, the specific claims before the court

relate more specifically to an adversary complaint Gray
filed

in

that

case

against

appellant

Pioneer

Credit

Company of Alabama, Inc., d/b/a 1st South East Acceptance
Corporation (“Pioneer”).

Pioneer asserted claims against

Gray’s estate in bankruptcy, and in turn Gray filed his
complaint asserting a violation of the Truth in Lending
Act (“TILA”), 15 U.S.C. § 1601 et seq.

The bankruptcy

court found for Gray on the merits of the TILA claim and
awarded him attorney’s fees in the amount of $ 16,912.00
and costs in the amount of $ 57.69.

Pioneer filed this

appeal challenging the attorney’s fees, and this court
affirmed the bankruptcy court’s order.
Gray then filed this motion, seeking a supplemental
award of attorney’s fees for the work performed by his
counsel, Wilson Webb, in defending Pioneer’s unsuccessful
appeal.

He seeks fees of $ 13,020.00 and costs of

$ 50.00.

2

Pioneer has opposed the motion.
challenged

any

of

the

specific

However, it has not
work

done

reasonableness of the award sought as a whole.
Pioneer

argues

that

additional

authorized by any statute.

fees

are

or

the

Instead,

simply

not

It cites provisions of the

Federal Rules of Bankruptcy Procedure, which it argues do
not authorize an award of fees in this case, to support
this claim.
Gray brought his TILA claim in bankruptcy as an
adversary proceeding against Pioneer, which had filed
claims against his estate.

Substantively, the adversary

proceeding at issue in this case is governed by the TILA,
not the Bankruptcy Code.

See Matter of Marshall, 970 F.2d

383, 384 (7th Cir. 1992) (applying TILA to adversary
proceeding).
Bankruptcy

Therefore, any lack of authorization in the

Code

or

the

Federal

Rules

of

Bankruptcy

Procedure for an award of fees is irrelevant if there is
such authorization in the TILA.
The TILA authorizes a reasonable award of attorney’s
fees.

15 U.S.C. § 1640 (“in the case of any successful

3

action [under the TILA], [creditor is liable for] the
costs of the action, together with a reasonable attorney's
fee as determined by the court”); see also Christ v.
Beneficial Corp., 547 F.3d 1292, 1297 (11th Cir. 2008)
(“Congress

creat[ed]

a

system

of

private

attorney

generals” to help enforce the TILA, in part by authorizing
attorney’s fees and costs) (quotation omitted).
A

separate

award

of

fees

successful defense of an appeal.

is

available

for

the

Thomas v. Myers-Dickson

Furniture Co., 479 F.2d 740, 748 (5th Cir. 1973) (granting
additional award for successful defense on appeal despite
finding that trial court’s previous grant of fees was
sufficient), superseded on other grounds, 15 U.S.C. §
1640(g), as recognized in Turner v. Firestone Tire &
Rubber, 537 F.2d 1296 (5th Cir. 1976).1

In Thomas, the

appellate court noted that “the Act allows fees in ‘any
successful action,’ and an action cannot be said to be

1. In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc), the Eleventh Circuit Court of
Appeals adopted as binding precedent all of the decisions
of the former Fifth Circuit handed down prior to the
close of business on September 30, 1981.
4

‘successful’ when an appeal is taken unless the victory
below is defended on appeal.”

479 F.2d at 748.

Here, of course, Gray defended an appeal not of the
underlying

TILA

attorney’s fees.

claim

but

of

the

original

award

of

However, the court sees no basis for

treating such an appeal differently for the purposes of a
supplemental

fee

award,

particularly

given

the

role

attorney’s fees play in effectuating the Congressional
system of private attorneys general.

Christ, 547 F.3d at

1297; see also Johnson v. State of Miss., 606 F.2d 635,
638 (5th Cir. 1979) (permitting, under

42 U.S.C. § 1988,

a fee award for time spent litigating issue of attorney’s
fees); Thompson v. Pharmacy Corp. of Am., Inc., 334 F.3d
1242, 1245 (11th Cir. 2003) (same); Doucet ex rel. Doucet
v. Chilton Cnty. Bd. of Educ., 65 F. Supp. 2d 1249, 1260
(M.D. Ala. 1999) (Thompson, J.) (same, under Individuals
with Disabilities Education Act, 20 U.S.C. § 1400 et
seq.).
Turning then to the reasonableness of the claimed
fees, the court is required to determine the “lodestar”

5

figure or “the product of the number of hours reasonably
expended to prosecute the lawsuit and the reasonable
hourly rate for work performed by similarly situated
attorneys in the community.”

Simpleville Music v. Mizell,

511 F.Supp.2d 1158, 1161 (M.D. Ala. 2007) (Thompson, J.)
(citing Norman v. Housing Auth. of Montgomery, 836 F.2d
1292,

1299

(11th

Cir.

1988)).

In

determining

the

lodestar, the court applies the 12 factor test set forth
in Johnson v. Georgia Highway Exp., Inc., 488 F.2d 714,
717-19 (5th Cir. 1974).

See Varner v. Century Fin. Co.,

Inc., 738 F.2d 1143, 1148-49 (11th Cir. 1984).2

The party

seeking fees bears the burden of proof as to each factor.
Id. at 1148.

The court then proceeds to analyze “whether

2. The Johnson factors are: “(1) the time and labor
required, (2) the skill requisite to properly perform the
legal services, (3) preclusion of other employment by the
attorney due to acceptance of the case, (4) the novelty
and difficulty of the questions presented, (5) the
customary fee, (6) whether the fee is fixed or
contingent, (7) time limitations imposed by the client,
(8) the amount involved and the results obtained, (9) the
experience, reputation and ability of the attorneys, (10)
the undesirability of the case, (11) the nature and
length of the professional relationship with the client,
(12) awards in similar cases.” Varner, 738 F.2d at 1148
n.7.
6

any portion of this fee should be adjusted upwards or
downwards.”

Simpleville Music, 511 F.Supp.2d at 1161

(citing Johnson, 488 F.2d at 717-19).
Gray has submitted a contemporaneous record of the
time expended in defending this appeal, totaling 37.2
hours, and expenses incurred, totaling $ 50.00.

He has

also

Gerald

submitted

an

declaration

prepared

by

Templeton, a Birmingham attorney, who concludes that the
time spent in defending this appeal was reasonable and
that Gray’s attorney’s claimed rate of $ 350 per hour is
at the low end of his market range given his expertise in
this area of law.
The court notes that Pioneer has not contested the
reasonableness of Gray’s claim, nor has it suggested the
amount of time spent in this matter was unnecessary.

The

court also notes that Pioneer’s appeal did not include
some of the pertinent portions of the bankruptcy court
record and that a significant portion of Gray’s attorney’s
time in this matter was spent seeking to complete the
record to facilitate this court’s review.

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In consideration of the contemporaneous time record
as well as attorney Templeton’s supporting declaration,
the court finds Gray’s claim for $ 13,020.00 in fees and
$ 50.00 in expenses to be reasonable and in line with the
work “performed by similarly situated attorneys in the
community.”

Simpleville, 511 F.Supp.2d at 1161; see also

Johnson, 488 F.2d at 718. Furthermore, again applying the
Johnson factors, the court does not find that an upward or
downward

adjustment

appropriate

in

this

case.

The

motion

for

requested fee award will be granted.

* * *

Accordingly, it is ORDERED as follows:
(1)

Appellee

Sammy

Allen

Gray,

Jr.’s

supplemental award of attorney’s fees (doc. no. 17) is
granted.
(2) Appellee Sammy Allen Gray, Jr. shall have and
recover from appellant Pioneer Credit Company of Alabama,
Inc., d/b/a 1st South East Acceptance Corporation the

8

following: attorney’s fees totaling $ 13,020.00 and the
additional sum of $ 50.00 in expenses.
DONE, this the 15th day of October, 2013.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE