Haywood v. LRA Corporation et al

Filing 29

MOTION by Plaintiff Sarah Jean Haywood for judgment (Attachments: # 1 Exhibit A-Affidavit of Plaintiff, # 2 Exhibit B-Summary of Attorney's Fees, # 3 Exhibit C-Laffey Matrix, # 4 Exhibit D-Consumer Law Attorney Fee Survey)(Marco, David)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SARAH JEAN HAYWOOD,
Plaintiff,
v.
LRA CORPORATION d/b/a
L.R.A. CORPORATION DEBT
COLLECTION SERVICES and
LARRY RAYBIN,
Defendants.

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1:12-cv-2527
Judge Leinenweber

PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT

CONTENTS
I.

INTRODUCTION

II.

BRIEF MEMORANDUM OF APPLICABLE LAW
A. Violation of the Fair Debt Collection Practices Act (FDCPA)
B. Damages under the FDCPA

III.

PLAINTIFF’S CLAIM FOR DAMAGES

IV.

ATTESTATION OF THE FACTS
Affidavit of Plaintiff (Exhibit A)

V.

ATTORNEYS’ FEES & COURT COSTS
A. Plaintiff’s Counsel’s Hourly Rates
B. Attorney’s Rates – Laffey Matrix (Exhibit C)
C. Attorney’s Rates – Consumer Attorney’s Rates Survey (Exhibit D)
D. Hours Billed (Comprehensive listing attached hereto as Exhibit B)

VI.

PRAYER FOR RELIEF

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I.

INTRODUCTION

Plaintiff, SARAH JEAN HAYWOOD, filed the Complaint in this matter alleging, inter
alia, that Defendants, LRA CORPORATION d/b/a L.R.A. CORPORATION DEBT
COLLECTION SERVICES and LARRY RAYBIN, violated the Fair Debt Collection Practices
Act, 15 U.S.C. §1692, et seq. (“FDCPA”).
On November 20, 2012, Plaintiff filed a Motion to Default Defendants due to
Defendants’ failure to answer or otherwise plead. Said Motion was granted and on December
21, 2012, an Entry of Default was entered against Defendants. Plaintiff now moves for the entry
of a Default Judgment by the Court.

II.
A.

BRIEF MEMORANDUM OF APPLICABLE LAW

Violation of the Fair Debt Collection Practices Act (FDCPA)

Plaintiff’s Complaint alleges that Defendants violated the FDCPA by the manner with
which they attempted to collect an alleged debt from Plaintiff.
Specifically, Plaintiff’s Complaint alleges that Defendants violated the FDCPA as
follows:
a. Used any language or symbol on any envelope or in the contents of any
communication effected by the mails or telegram that indicates that the debt
collector is in the debt collection business or that the communication relates to
the collection of a debt in violation of 15 U.S.C. §1692b(5);
b. Communicated with the consumer after the debt collector knew the consumer
was represented by an attorney with regards to the subject debt and has
knowledge of, or can readily ascertain, such attorney’s name and address and
said attorney did not fail to respond within a reasonable period of time to
communications from the debt collector, in violation of 15 U.S.C. §1692b(6);
c. Communicated with the consumer despite knowing that the consumer was
represented by an attorney with respect to the debt allegedly owed by Plaintiff
and said attorney had not consented for Defendant to have direct
communication with Plaintiff in violation of 15 U.S.C. §1692c(a)(2);
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d. Used false, deceptive, misleading and unfair or unconscionable means to
collect or attempt to collect an alleged debt in violation of 15 U.S.C. §1692e;
e. Falsely represented the character, amount, or legal status of any debt in
violation of 15 U.S.C. §1692e(2)(A);
f. Threatened to take action that cannot legally or is not intended to be taken in
violation of 15 U.S.C. §1692e(5);
g. Used any false representation or deceptive means to collect or attempt to
collect any debt or to obtain information concerning the consumer in violation
of 15 U.S.C. §1692e(10);
h. Used unfair and/or unconscionable means to collect or attempt to collect a
debt in violation of 15 U.S.C. §1692f;
i. Failed to comply with the provisions of 15 U.S.C. §1692g(a);
j. Contradicted, overshadowed and obscured the required validation/verification
language required by §1692g(a) of the FDCPA by extraneous language
contained in the aforementioned Letter; and,
k. Was otherwise deceptive and failed to comply with the provisions of the
FDCPA.
B.

Damages under the FDCPA

The Fair Debt Collection Practices Act provides for the payment of any actual damages
and statutory damages of up to $1,000.00. 15 U.S.C. §1692k.
The aforesaid section of the FDCPA states: “Except as otherwise provided by this
section, any 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:
(1)

any actual damage sustained by such person as a result of such failure;

(2)(A) in the case of any action by an individual, such additional damages as the
court may allow, but not exceeding $1,000;
As noted by myriad courts ruling on FDCPA claims, emotional distress damages are
actual damages deserving of compensation. A plethora of cases, similar in nature to that of the
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Plaintiff in the present case, have resulted in the finding of actual damages in favor of the
Plaintiffs. See Anderson v. Conwood Co., 34 F. Supp. 2d 650 (W.D. Tenn. 1999) ($50,000 in
actual damages awarded in absence of testimony other than worry, stress and anxiety);
Stevenson v. TRW, 987 F.2d 288 (5th Cir. 1993) ($30,000 in mental anguish and embarrassment
damages, plus $20,700 in attorney’s fees); Thompson v. San Antonio Retail Merchants Ass’n,
682 F.2d 509 (5th Cir. 1982) ($10,000 actual damages for humiliation and mental distress even
when no out-of-pocket expenses); Morris v. Credit Bureau, 563 F. Supp. 962 (S.D. Ohio. 1983)
($10,000 for stress, anxiety, humiliation, injury to his reputation , his work, his family, his sense
of well-being); Collins v. Retail Credit Co., 410 F. Supp. 924 (E.D. Mich. 1976) ($21,750 for
loss of reputation, embarrassment, in recognition of the “many subtle and indirect adverse effects
upon a personal, social and economic life”, ($50,000 in punitive damages and $21,000 in
attorney’s fees); Jones v. Credit Bureau of Huntington, Inc., 399 S.E.2d 694 (W. Va. 1990): Jury
award of $4,000 compensatory $42,500 punitive, upheld; Bryant v. TRW Inc., 689 F.2d 72 (6th
Cir. 1982) ($8,000 for embarrassment and humiliation, attorney’s fees $13,705); Belile v Allied
Medical Accounts Control Associated Bureaus, Inc., 209 B.R. 658 (E.D. Pa. 1997) (Consumer is
entitled to actual damages under the FDCPA…for emotional distress arising from unlawful debt
collection practices arising from letter violation); Crossley v Lieberman, 90 B.R. 682 (E.D. Pa
1988), aff'd, 868 F.2d 566 (3d. Cir 1989) (actual damages in the form of emotional stress
assessed at $1,000 for debt collector's violation of the FDCPA); In re Littles, 75 B.R. 241 (E.D.
Pa. 1987), aff'd, 90 B.R. 700 (E.D. Pa. 1988); Southern Siding Company, Inc, v. Raymond, 703
So.2d 44 (La. App., 1st Cir. 1997) (Actual damages of $5000 and $2000 and $2000 in statutory
damages were awarded to husband and wife under the FDCPA for mental and emotional distress
in the form of undue stress, anxiety and sleeplessness and physical injury in the form of

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depression as result of threatening letter); Venes v. Professional service Bureau, 353 N.W. 2d
671 (Minn. Ct. App. 1984) ($6000 awarded for undue stress as a result of debt collection
violations involving harassing telephone calls); Smith v. Law Offices of Mitchell N. Kay, 124
B.R. 182 (D. Del. 1991)($3000 for actual damages in the form of emotional distress as a result of
FDCPA violation).
Moreover, such damages as outlined above, including personal humiliation,
embarrassment, sleeplessness, depression and mental anguish or emotional stress need not be
proved by expert testimony and can be sustained by the consumer himself. See Belile, Crossley,
Littles, Raymond.

III.

PLAINTIFF’S CLAIM FOR DAMAGES

Plaintiff seeks to recover $1,000.00 in statutory damages and $1,500.00 for actual
damages, as detailed in Plaintiff’s affidavit. Additionally, Plaintiff seeks recovery of her
attorneys’ fees and costs as delineated below.

IV.

ATTESTATION OF THE FACTS

Please see affidavit of Plaintiff attached hereto as Exhibit A.

V.

ATTORNEYS’ FEES & COURT COSTS

A. Plaintiff’s Counsel’s Hourly Rates
Ashley Decker has been licensed since 2009 and her hourly rate is $225 per hour. David
Marco has been licensed since 2000 and his hourly rate is $340 per hour. Larry Smith has been
licensed since 1993 and his hourly rate is $395 per hour. Paralegals at SMITHMARCO, P.C.,
have an hourly rate of $115 per hour.

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B. The Rates Sought by Plaintiff’s Counsel are Reasonable as Evidenced by the
United States Attorneys’ Office and the “Laffey Matrix”
The hourly rates requested by Plaintiff as detailed in Plaintiff’s Statement of Services are
commensurate with the prevailing rates for attorneys that practice federal law. As the case at bar
was filed pursuant to a federal remedial statute, the FDCPA, rates charged by other attorneys
practicing federal law may be compared to determine an appropriate rate.

See Laffey v.

Northwest Airlines, Inc., 572 F. Supp. 354, 371 (D.D.C. 1983).
In Laffey, the court compared rates of attorneys practicing federal claims with fee-shifting
provisions to reach a hybrid rate. Id. The court’s analysis in Laffey was taken one step further by
the Civil Division for the United States Attorney’s Office to reflect how rates have changed over
the years due to inflation. In doing so, the United States Attorney’s office created the “Laffey
Matrix.”
The Laffey Matrix is an official statement of market-supported reasonable attorney fee
rates that was adopted, and is periodically updated, by the United States Court of Appeals for the
District of Columbia. Adcock-Ladd v. Secretary of Treasury, 227 F.3d 343, 347 (6th Cir. 2000),
citing Laffey v. Northwest Airlines, Inc., 746 F.2d 4 (D.C. Cir. 1984).
As demonstrated by the “Laffey Matrix” the rates sought by Plaintiff’s attorneys herein
are commensurate with recognized rates for attorneys’ with similar experience. (See Laffey
Matrix, attached hereto as Exhibit C).
C. The Rates Sought by Plaintiff’s Counsel are Reasonable as Evidenced by the
Consumer Law Attorney Fee Survey Report
A recent survey was conducted of law firms across the country to determine the rates
charged by attorneys practicing in the area of consumer law in various geographic regions. (See
United States Consumer Law Attorney Fee Survey Report for 2010-2011 attached hereto as

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Exhibit D). The survey provides information regarding billable rates for attorneys who practice
in the “Midwest Region.”1 (Exhibit D at 11).
The survey states that the average hourly rate for attorneys in the Midwest who have been
practicing for one (1) to three (3) years is $287. (Exhibit D at 20), for attorneys who have been
practicing for six (6) to ten (10) years is $318. Id. The median rate for all consumer attorneys in
the Midwest is $375. Id. at 47. The median billable hourly rate for paralegals in the Midwest is
$112 per hour. Id.
D. Hours Billed
Please see summary below. For a comprehensive list of Plaintiff’s attorneys’ fees, please
see document attached hereto as Exhibit B.

ATTORNEY

HOURS

RATE

TOTAL

Larry P. Smith

3.9

$395.00

$1,540.50

David M. Marco

3.3

$340.00

$1,122.00

Ashley S. Decker

15.2

$225.00

$3,420.00

Paralegal

5.5

$115.00

$632.50

ATTORNEYS’ FEES

$6,715.00

COST FOR FILING COMPLAINT

$350.00

COST OF SERVICE OF SUMMONS

$195.00

TOTAL ATTORNEYS’ FEES AND COSTS

$7,260.00

1 The Midwest Region consists of attorneys from Iowa, Illinois, Indiana, Kansas, Michigan, Minnesota, Missouri,
North Dakota, Nebraska, South Dakota and Wisconsin.

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VI.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, SARAH JEAN HAYWOOD, by and through her attorneys,
SMITHMARCO, P.C., respectfully requests that this Honorable Court enter judgment in her
favor and against Defendants, LRA CORPORATION d/b/a L.R.A. CORPORATION DEBT
COLLECTION SERVICES and LARRY RAYBIN, as follows:
1. Actual Damages:

$1,500.00

2. Statutory Damages:

$1,000.00

3. Attorneys’ Fees & Costs:

$7,260.00
TOTAL:

$9,760.00

Respectfully submitted,
SARAH JEAN HAYWOOD
By:

Dated: April 5, 2013
David M. Marco (Atty. No.: 6273315)
SMITHMARCO, P.C.
205 North Michigan Avenue, Suite 2940
Chicago, IL 60601
Telephone:
[phone]
Facsimile:
[phone]
E-Mail:
[e-mail]

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s/ David M. Marco
Attorney for Plaintiff