Mayhall v. Berman & Rabin, P.A.

Filing 79

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendant's motion (Doc. No. 72) for costs is GRANTED in the amount of $785.00. IT IS FURTHER ORDERED that Defendant's Motion (Doc. No. 73) for attorney's fees is DENIED. Signed by District Judge Audrey G. Fleissig on 4/7/2014. (NCL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

CAROL MAYHALL,
Plaintiff,
v.
BERMAN & RABIN, P. A.,

Defendant.

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Case No. 4:13CV00175AGF

MEMORANDUM AND ORDER
Plaintiff Carole Mayhall filed this action in the Associate Circuit Court of the City
of Saint Louis (“the Circuit Court”) under the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et seq., alleging that Defendant Berman & Rabin, P.A.
(“Berman & Rabin”), violated the FDCPA when it represented a creditor in a collection
action against Plaintiff in the circuit court. Defendant removed the action to this Court
and ultimately, this Court granted Defendant’s motion for summary judgment on the
FDCPA claim. Defendant now moves to recover its costs and attorney’s fees asserting
that Plaintiff pursued her FDCPA claim in bad faith and for purposes of harassment. For
the reasons set forth below, Defendant’s motion for costs is granted and Defendant’s
motion for attorney’s fees is denied.

I. The Bill of Costs
Rule 54(d) of the Federal Rules of Civil Procedure provides that “[u]nless a
federal statute, these rules, or a court order provides otherwise, costs—other than
attorney’s fees—should be allowed to the prevailing party.” FED. R. CIV. P. 54(d).
Plaintiff does not oppose Defendant’s Bill of Costs and having reviewed it, the Court
concludes that all of the costs Defendant requests are recoverable under 28 U.S.C. §
1920.1 See Brisco-Wade v. Carnahan, 297 F.3d 781, 782 (8th Cir. 2002) (noting that
recoverable costs are those enumerated in § 1920). The Court will therefore exercise its
discretion under Rule 54(d) to award Defendant all costs set forth in its Bill of Costs.
II. The Motion for Attorney’s Fees
Background
Prior to the commencement of this action, Defendant Berman & Rabin represented
Citibank (South Dakota), N.A. (“Citibank”) in an action for collection of a debt owed
under a loan agreement Citibank brought against Mayhall in the Circuit Court (“the

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Pursuant to 28 U.S.C. §1920, costs may be taxed for:
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily obtained
for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any materials
where the copies are necessarily obtained for use in the case;
(5) Docket fees under [28 U.S.C. § 1923];
(6) Compensation of court appointed experts, compensation of interpreters, and
salaries, fees, expenses, and costs of special interpretation services under [28
U.S.C. § 1828].

28 U.S.C. § 1920.

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Collection Action”). Mayhall, the defendant in the collection action, was served but did
not enter an appearance in that case. The Associate Circuit Court therefore entered a
default judgment against Mayhall for the amount of the debt at issue and for attorney’s
fees equal to 15% of the principal recovered as specified by Citibank, who was the
plaintiff in that action. On August 20, 2012, Mayhall moved to set aside the portion of
the judgment in the Collection Action related to the attorney’s fees on the ground that the
loan agreement permitted the recovery of “reasonable attorney’s fees” but did not permit
an award of attorney’s fees calculated as a percentage of the recovery under the loan.
On or about that same date, Mayhall filed an action in state court2 under the
FDCPA alleging that Defendant violated various provisions of the FDCPA by seeking to
recover liquidated attorney’s fees that she alleged were unauthorized by the loan
agreement. On January 25, 2013, Defendant removed the FDCPA action to this Court.
On February 22, 2013, the Associate Circuit Court granted Mayhall’s motion to amend
the judgment in the Collection Action and on February 28, 2013, Plaintiff moved to
amend her FDCPA complaint in light of that ruling. See Doc. Nos. 11-14. Plaintiff was
granted leave to amend her complaint and this action went forward. The parties
2

In its notice of removal to this Court, Defendant asserted that the action was filed in the

Circuit Court on “January 14, 2013,” and that Defendant was served on “January 17,
2012.” Doc. No. 1 at 1-2. From other entries in the record, both of these dates appear to
be incorrect. The Circuit Court complaint is receipt-stamped “August 20, 2012.” See
Doc. No. 3. In addition, in briefing the present motion, Defendant asserts, and Plaintiff
does not deny, that Plaintiff first filed the FDCPA action in the Circuit Court on August
20, 2012, the same day that Plaintiff filed the motion to amend the judgment in the
Collection Action. It appears that Defendant was thereafter served on or about January
17, 2013, and timely filed its removal petition. No party is contesting that this matter was
timely removed.

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conducted discovery and then filed cross motions for summary judgment. See Doc. Nos.
53 & 55. Thereafter, the Court denied Plaintiff’s motion for partial summary judgment
and entered judgment in favor of Defendant on Plaintiff’s FDCPA claim. See Doc. Nos.
70 & 71.
Arguments of the Parties
Defendant asserts that it is entitled to an award of attorney’s fees under either §
1692k(a)(3) of the FDCPA or 28 U.S.C. § 1927 because the sections provide,
respectively, that a prevailing defendant may recover attorney’s fees where a plaintiff has
litigated in bad faith or the plaintiff’s attorney has proceeded in a vexatious manner so as
to multiply the proceedings. Defendant first contends that Plaintiff’s FDCPA claim
lacked justification and argues that the case law under the FDCPA fails to support
Plaintiff’s theory of the case. Defendant next contends that because it prevailed on its
motion for summary judgment due to Plaintiff’s failure to offer evidence in support of
each element of her prima facie case, Plaintiff’s claim under the FDCPA lacked a
foundation in law and was brought in bad faith and solely for purpose of harassment.
Defendant also contends that in granting summary judgment against Plaintiff, “the Court
determined that Plaintiff misapplied or misinterpreted every case and statute that she
cited in opposition to [Defendant’s] Motion for Summary Judgment, and found that her
claims had no legal basis as a matter of law.” Doc. No. 74 at 4. In addition, Defendant
contends that Plaintiff’s bad faith is evidenced by the fact that throughout the course of
the litigation, Defendant repeatedly informed Plaintiff that Defendant disagreed with

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Plaintiff’s theory of liability and would seek costs and fees if the litigation continued.
See id. at 5.
Defendant also asserts that Plaintiff acted in bad faith by filing a motion to amend
the judgment in the Collection Action on the same day that she filed the instant FDCPA
action in the Associate Circuit Court. Defendant further asserts that by seeking to amend
her complaint in this action after the favorable ruling in the Collection Action, Plaintiff
improperly relied on the Associate Circuit Court’s ruling as “as facts and precedent
ostensibly (but erroneously) in support of her FDCPA claims.” Id. at 5. Defendant also
contends that “Plaintiff may very well have dismissed her Complaint entirely if the
Circuit Court had ruled otherwise” and that this fact “reinforces a finding that Plaintiff
acted in bad faith when she filed her Complaint.” Id. Finally, Defendant challenges
Plaintiff’s motive for filing this action stating “it is likely that Plaintiff merely filed the
[FDCPA action] to simultaneously discourage collection of the Circuit Court Judgment
against her while attempting to extort an early settlement from [Defendant] in the present
case.” Id. at 5-6.
In response, Plaintiff acknowledges that § 1692k(a)(3) of the FDCPA permits an
award of attorney’s fees to a prevailing defendant. Plaintiff argues, however, that such an
award is not permissible here because there is no evidence on this record that she acted in
bad faith or for purpose of harassment. Specifically, Plaintiff contends that Defendant
offers no factual support for its assertion that Plaintiff knew her claim lacked merit but
nonetheless pursued it.

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Applicable Law
The purpose of the FDCPA is “to protect consumers from abusive debt collection
practices.” Schultz v. Portfolio Recovery Assocs., LLC, No. 12–CV–2022–LRR, 2012
WL 5332194, at *8 (N.D. Iowa Oct. 29, 2012). Section 1692k(a)(3) of the FDCPA
provides for an award of attorney’s fees to a prevailing defendant “[o]n a finding by the
court that an action . . . was brought in bad faith and for the purpose of harassment.” 15
U.S.C. § 1692k(a)(3); Marx v. General Revenue Corp., 133 S. Ct. 1166, 1175-76 (2013);
Vogler v. Grier Grp. Mgmt Co., 309 S.W.3d 328, 332 (Mo. Ct. App. 2010) (affirming a
finding of bad faith and an attendant fee award to Defendant where “there was no
justification for the Plaintiff's suit”).
In light of the public policy objectives of the FDCPA, courts hold that §
1692k(a)(3) “should be construed narrowly so as not to discourage private litigation
under the FDCPA.” Kondratick v. Beneficial Consumer Disc. Co., No. 04-4895, 2006
WL 305399, at *10 n. 4 (E.D. Pa. Feb. 8, 2006) (citing Ayres v. Nat'l Credit Mgmt. Corp.,
No. 90-5535, 1991 WL 274695, at *1 (E.D. Pa. Dec. 17, 1991)). An award of fees under
15 U.S.C. § 1692k(a)(3) is discretionary, but absent ‘“evidence that the plaintiff knew
that his claim was meritless and that plaintiff pursued his claims with the purpose of
harassing the defendant’” a court may not permit a prevailing defendant to recover
attorney’s fees. Allers-Petrus v. Columbia Recovery Grp., LLC, No. C08–5533 FDB,
2009 WL 1160061, at *1 (W.D. Wash. Apr. 29, 2009) (quoting Gorman v. Wolpoff &
Abramson, LLP, 435 F. Supp. 2d 1004, 1013 (N.D. Cal. 2006)). This baseline
requirement for an award of fees “insulat[ing] consumers from the prospect of paying
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defendants’ costs by requiring a finding that the action was brought in bad faith and for
harassment is consistent with the stated intent of Congress.” Schultz, 2012 WL 5332194,
at *8; see also Guerrero v. RJM Acquisitions LLC, 499 F.3d 926, 941 (9th Cir. 2007)
(reasoning that the FDCPA was not “intended as a sword to be brandished by debtors
who have retained counsel–the very debtors least in need of the Act’s protections”).
Courts also have authority to award attorney’s fees under 28 U.S.C. § 1927.
Under that section a court may require an attorney who “multiplies the proceedings
unreasonably and vexatiously, and, when ‘viewed objectively, manifests either
intentional or reckless disregard of the attorney’s duties to the court’” to pay the fees and
costs incurred because of such conduct. E.E.O.C. v. Trans States Airlines, 462 F.3d 987,
996 (8th Cir. 2006) (quoting Tenkku v. Normandy Bank, 348 F.3d 737, 743 (8th Cir.
2003)); see also 28 U.S.C. § 1927. However, “[b]ecause section 1927 is penal in nature,
it should be strictly construed so that it does not dampen the legitimate zeal of an attorney
in representing his client.” Lee v. L.B. Sales, Inc., 177 F.3d 714, 718 (8th Cir. 1999)
(internal quotation omitted).
A prevailing party in an FDCPA action may pursue an award of attorney’s fees
under either the FDCPA or under 28 U.S.C. § 1927. See Marx., 133 S. Ct. at 1175-76
(explaining that “[i]t is undisputed that [the FDCPA’s attorney’s fee provision] leaves the
background rules for attorney’s fees intact” and that § 1692k(a)(3) “is best read as
codifying a court’s pre-existing authority to award both attorney's fees and costs”). And
under either statute a grant of attorney’s fees to the prevailing defendant is subject to the

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court’s discretion. See, e.g., Guerrero, 499 F.3d at 940-41 (finding that the district court
“did not abuse its discretion in denying” the prevailing party an award of fees).
Discussion
As an initial matter, the Court holds that Defendant is a prevailing party for
purposes of the FDCPA, because the Court granted Defendant’s motion for summary
judgment on Plaintiff’s complaint. Cf. Eckert v. LVNV Funding LLC, 647 F. Supp. 2d
1096, 1105 (E.D. Mo. 2009) (refusing to deem defendant a prevailing party where
defendant succeeded on a motion for partial summary judgment). Nevertheless, on the
record before it, the Court concludes that an award of attorney’s fees under either 15
U.S.C. § 1692k(a)(3) or 28 U.S.C.§ 1927 is not justified here because there is no
evidence that Plaintiff filed or pursued her case in bad faith and for purposes of
harassment or that her attorney “unreasonably and vexatiously” multiplied these
proceedings. 15 U.S.C. § 1692k(a)(3); 28 U.S.C. § 1927; see also Allers-Petrus, 2009
WL 1160061, at *1.
Plaintiff’s failure, on a motion for summary judgment, to establish evidence to
support each element of her prima facie case does not alone amount to frivolous or bad
faith litigation. See, e.g., Schlotman v. Citibank, No. 06–0803–CV–W–DW, 2007 WL
1425474, at *1 (W.D. Mo. May 10, 2007) (denying a request for attorney’s fees where
the defendant’s motion to dismiss for failure to state a claim was granted). Moreover,
despite Defendant’s contention to the contrary, Plaintiff’s theory of the case is not
without precedent. Plaintiff’s claim arguably rests on an expanded interpretation of
Kojetin v. C U Recovery, Inc., No. Civ. 97–2273, 1999 WL 1847329 (D. Minn. Mar. 29,
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1999), aff’d, 212 F.3d 1318 (8th Cir. 2000) (per curiam), and therefore derives from
Eighth Circuit precedent. Although the Court did not adopt Plaintiff’s view of that case
and her claim was ultimately unsuccessful, it does not follow that she acted in bad faith.
Compare Marshall v. Portfolio Recovery Assocs., 646 F. Supp. 2d 770, 776 (E.D. Pa.
2009) (denying attorney’s fees when nothing in the record indicated that the plaintiff
knew his claim was without merit) with Rhinehart v. CBE Grp., Inc., 714 F. Supp. 2d
1183, 1185-86 (M.D. Fla. 2010) (awarding attorney’s fees to the prevailing defendant
where a previous request for sanctions had been granted, the complaint recited
conclusory boilerplate allegations, and the plaintiff’s deposition testimony contradicted
those allegations).
Plaintiff asserts and the Court agrees that her reliance upon Stolicker v. Muller,
Muller, Richmond, Harms, Myers & Sgroi, P.C., 2005 WL 2180481, at * 6-7 (W. D.
Mich. Sept. 9, 2005) and cases following it, is not evidence of bad faith. In Stolicker, the
court found that a law firm violated the FDCPA when it filed a complaint and affidavit in
support of a default judgment requesting a liquidated attorney’s fee where the authorizing
contract permitted only a reasonable attorney fee. Id. at 6. In ruling on the motions for
summary judgment here, this Court distinguished Stolicker, but cannot find that
Plaintiff’s reliance upon it was so erroneous as to render her claim without justification or
a basis under the law. Further, while this Court was not bound by the state court’s own
characterizations it its orders, the Court notes that the state court described this
Defendant’s conduct in quite negative terms.

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The Court further concludes that much of Defendant’s argument that Plaintiff
acted in bad faith is no more than unsupported supposition and speculation. For example,
assuming without deciding that the two suits were in fact filed on the same day, the
concurrent filings are not inherently suggestive of bad faith. In addition, Plaintiff has
explained that the concurrent filings were the result of the impending expiration of both
the statute of limitations under the FDCPA and the time allotted for the filing of a motion
to amend the default judgment. See 15 U.S.C. § 1692k(d) (limiting claims under the
FDCPA to a one year statute of limitations) and MO. SUP. CT. R. § 74.05 (requiring a
motion for relief from default judgment within one year of the granting of the judgment).
Further, Defendant’s assertions that Plaintiff filed both suits to avoid execution of the
judgment in the collection action “while attempting to extort an early settlement from
[Defendant] in the [FDCPA action]” and that she “may very well have dismissed her
Complaint entirely if the Circuit Court had ruled otherwise” are utterly lacking in factual
support. Doc. No. 74 at 5. Finally, regardless of the date on which this action was first
filed in the Circuit Court, Plaintiff could not have known whether she would be granted
the relief she sought from the judgment in the Collection Action. However, the fact that
Plaintiff ultimately obtained that relief does not indicate bad faith with respect to the
FDCPA claim, which has a separate premise.
The Court also concludes that the authority Defendant cites in support of its
position is unpersuasive. For example, Ceresko v. LVNV Funding, LLC, is
distinguishable from this case because the attorney for the plaintiff in Ceresko previously
had brought two unsuccessful lawsuits under a similar theory of liability and therefore,
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had substantial notice that his client was unlikely to prevail. 484 Fed. App’x. 113, 114
(9th Cir. 2012). There are no previous unsuccessful claims at issue here. In addition, the
fact that Defendant disagreed with and told Plaintiff that it disagreed with her theory of
the case is not an indication that Plaintiff lacked good faith. The essence of litigation is
dispute and frequently that dispute centers on the parties’ different understandings of the
relevant law. Differences of opinion do not amount to bad faith.
Defendant also relies upon Eckert v. LVNV Funding LLC, where the court
determined that a party who succeeded on a motion for partial summary judgment had
not “prevailed” for purposes of the FDCPA. 647 F. Supp. 2d at 1105. From this holding
Defendant infers that attorney’s fees should be awarded under the FDCPA when a
defendant’s motion for summary judgment with respect to the entire case is successful.
Numerous cases indicate that this inference is unwarranted. See, e.g., Whatley v. AHF
Fin. Servs., No. 4:11-CV-488, 2013 WL 4771466, at *3-4 (E.D. Tex. Sept. 5, 2013)
(adopting a magistrate’s report denying attorney’s fees to a defendant who prevailed at
summary judgment on its FDCPA claims); Johnson v. Credit Prot. Ass’n, No. 11-80604CIV, 2013 WL 3834400, at *2 (S.D. Fla. July 24, 2013) (refusing to award attorney’s
fees to a defendant who prevailed at summary judgment on its FDCPA claims). If the
inference were correct there would be no necessity to establish evidence of bad faith, but
in fact, attorney’s fees under the FDCPA are awarded at the court’s discretion and only
upon a showing of bad faith and harassment and are at the sound discretion of the court.
15 U.S.C. § 1692k(a)(3) (providing that “[o]n a finding by the court that an action under

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this section was brought in bad faith and for the purpose of harassment, the court may
award to the defendant attorney’s fees”) (emphasis supplied).
Smith v. Argent Mortg. Co., on which Defendant also relies to support its position
that Plaintiff’s failure to make a prima facie case is equivalent to bad faith, is also readily
distinguishable because the plaintiff in Smith offered “absolutely no evidence” to support
his FDCPA claim. 331 Fed. App’x. 549, 559 (10th Cir. 2009). In addition, the court in
Smith pointed to other factors in addition to the failure to establish a prima facie case, to
support its “inference” of bad faith. See id. Specifically, the court in Smith noted
evidence that the plaintiff pursued the FDCPA claim to delay a pending foreclosure. See
id. No similar facts or motives are evident here.
With respect to the conduct of Plaintiff’s attorney and the recovery of fees under
28 U.S.C. § 1927, Defendant has cited no cases and has made no argument that Plaintiff’s
attorney intentionally or recklessly disregarded his duties to the court. To the extent that
Defendant’s arguments regarding bad faith are intended to indicate the vexatious
multiplication of these proceedings, the Court finds them lacking in merit.
For the reasons set forth above, the Court concludes that Defendant has failed to
show that Plaintiff’s FDCPA claim was “brought in bad faith and for the purpose of
harassment” or that her attorney vexatiously multiplied these proceedings. 15 U.S.C. §
1692k(a)(3). Therefore, the Court finds no basis for an award of attorney’s fees under

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either the FDCPA or 28 U.S.C. § 1927. Id.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s motion (Doc. No. 72) for costs is
GRANTED in the amount of $785.00.
IT IS FURTHER ORDERED that Defendant’s Motion (Doc. No. 73) for
attorney’s fees is DENIED.

_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 7th day of April, 2014.

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