Greene v. Accredited Management Solutions, LLC et al

Filing 16

MEMORANDUM OF DECISION AND ORDER that Pltf's 15 Motion for Default Judgment Against Deft United Merchant Asset Recovery of WNY, LLC is GRANTED, and Pltf shall have and recover of Deft United Merchant a total judgment o f $6,100; and Pltf's 15 Motion for Costs of the Action and Attorney's Fees is GRANTED, and Pltf shall have and recover from Deft United Merchant Asset Recovery of WNY, LLC $2,132.30 in attorney's fees and $491.00 in costs. (See Order for further details.) Signed by Chief Judge Martin Reidinger on 8/01/2022. (ejb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:21-cv-00185-MR-WCM

MARK GREENE,

)
)
Plaintiff,
)
)
vs.
)
)
ACCREDITED MANAGEMENT
)
SOLUTIONS, LLC et al.,
)
)
Defendants.
)
________________________________ )

MEMORANDUM OF
DECISION AND ORDER

THIS MATTER is before the Court on the Plaintiff’s “Motion for Default
Judgment Against Defendant, United Merchant Asset Recovery of WNY,
LLC” [Doc. 15] and “Motion for Costs of the Action and Attorney’s Fees” [Doc.
15-1].
I.

PROCEDURAL BACKGROUND
On July 20, 2021, the Plaintiff, Mark Greene (“Plaintiff”), initiated this

action against Defendants Accredited Management Solutions, LLC, United
Merchant Asset Recovery of WNY, LLC (“United Merchant”), and Jeremy
Brown.

[Doc. 1].

The Plaintiff’s Complaint asserts claims against the

Defendants for violations of the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692, et seq., and the North Carolina Collection

Case 1:21-cv-00185-MR-WCM Document 16 Filed 08/02/22 Page 1 of 23

Agency Act, N.C. Gen. Stat. § 58-70, et seq. (“NCCAA”). [Id. at ¶¶ 1-2]. For
damages, the Plaintiff seeks actual damages of up to $1,100 under the
FDCPA and the NCCAA, statutory damages of $1,000 under the FDCPA,
statutory damages of up to $4,000 under the NCCAA, and reasonable
attorney’s fees and costs. [Id. at ¶¶ 55-57, 62-64; see also Doc. 15 at 3-4].
On July 29, 2021, the Plaintiff filed a proof of service indicating that
Defendant United Merchant was served on July 26, 2021. [Doc. 5].
Defendant United Merchant did not make an appearance or otherwise
defend the action. On August 17, 2021, the Plaintiff filed a Motion for Entry
of Default against Defendant United Merchant. [Doc. 6]. On August 26,
2021, the Clerk entered a default against Defendant United Merchant.1 [Doc.
8]. On December 3, 2021, the Plaintiff voluntarily dismissed his claims
against Defendants Accredited Management Solutions LLC and Jeremy
Brown. [Doc. 11].
On January 5, 2022, this Court entered an Order directing the Plaintiff
to file an appropriate motion or otherwise take further action with respect to
Defendant United Merchant. [Doc. 12]. On January 19, 2022, the Plaintiff
filed the present “Motion for Default Judgment Against Defendant, United

1

The Clerk initially entered a default against Defendant United Merchant on August 20,
2021. [Doc. 7]. However, the Clerk entered a corrected Order of default on August 26,
2021. [Doc. 8].
2
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Merchant Asset Recovery of WNY, LLC,” (“Motion for Default Judgment”)
[Doc. 15] and “Motion for Costs of the Action and Attorney’s Fees,” (“Motion
for Costs”) [Doc. 15-1].
II.

STANDARD OF REVIEW
“To obtain a default judgment, a party must first seek an entry of default

under Federal Rule of Civil Procedure 55(a).”

Hayhurst v. Liberty Int’l

Underwriters, No. 5:08-cv-5347, 2009 U.S. Dist. LEXIS 5347, at *2 (N.D.W.
Va. Jan. 29, 2009); see Eagle Fire, Inc. v. Eagle Integrated Controls, Inc.,
No. 3:06-cv-00264, 2006 WL 1720681, at *5 (E.D. Va. June 20, 2006) (“The
entry of default is a procedural prerequisite to the entry of a default
judgment.”). Rule 55(a) states that the clerk must enter default “[w]hen a
party against whom a judgment for affirmative relief is sought has failed to
plead or otherwise defend, and that failure is shown by affidavit or otherwise.”
Fed. R. Civ. P. 55(a). After the clerk enters default, the party may seek a
default judgment under Rule 55(b)(1) or (2), depending on the nature of the
relief sought. Rule 55(b) “authorizes the entry of a default judgment when a
defendant fails ‘to plead or otherwise defend’ in accordance with the Rules.”
United States v. Moradi, 673 F.2d 725, 727 (4th Cir. 1982). By such a
default, a defendant admits the well-pleaded factual allegations in the

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plaintiff’s complaint. Ryan v. Homecomings Fin. Network, 253 F.3d 778, 780
(4th Cir. 2001).
III.

FACTUAL BACKGROUND
The well-pleaded factual allegations of the Plaintiff’s Complaint are

deemed admitted by virtue of the Defendant’s default. Id. The following is a
summary of the relevant and admitted facts.
The Plaintiff is a resident of the Town of Black Mountain, North
Carolina. [Doc. 1 at ¶ 7]. Defendant United Merchant is a New York limited
liability company and national debt collection agency headquartered in the
Town of Lockport, New York. [Id. at ¶ 19]. Defendant United Merchant
engaged in collection efforts in North Carolina. [Id. at ¶ 23].
The Plaintiff allegedly owes a debt arising from an automobile
deficiency balance that was incurred and defaulted on in approximately
2010. [Id. at ¶¶ 33, 39]. The alleged debt arises from transactions for
personal, family, and household purposes. [Id. at ¶ 34]. There have been
no further transactions regarding the alleged debt since approximately 2010.
[Id. at ¶ 40]. Defendant United Merchant has been attempting to collect this
alleged debt from the Plaintiff by calling the Plaintiff’s cellular telephone. [Id.
at ¶ 35].

On at least one occasion, the Plaintiff answered a call from

Defendant United Merchant and spoke to a collector. [Id. at ¶ 36].
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During these calls, Defendant United Merchant attempted to collect the
alleged debt from the Plaintiff and threatened to sue the Plaintiff if he did not
immediately pay the alleged debt. [Id. at ¶ 37]. Defendant United Merchant
did not disclose that it could not sue the Plaintiff to collect the alleged debt
because North Carolina’s three-year statute of limitations had run. [Id. at ¶
43]. Defendant United Merchant also did not disclose that a partial payment
or a promise to pay the alleged debt would reset the statute of limitations.
[Id.]. Defendant United Merchant never intended to sue the Plaintiff. [Id. at
¶ 44]. In response to Defendant United Merchant’s calls, the Plaintiff paid
$1,100 to settle the alleged debt. [Id. at ¶ 37].
IV.

DISCUSSION
A.

Jurisdiction

The Plaintiff’s Complaint alleges violations of the FDCPA, which is a
federal law. [Id. at ¶ 54]. As such, the Court has federal question jurisdiction
over the Plaintiff’s FDCPA claims. See 28 U.S.C. § 1331. The Court also
has “supplemental jurisdiction over all other claims that are so related to
claims in the action within such original jurisdiction that they form part of the
same case or controversy under Article III of the United States Constitution.”
28 U.S.C. § 1367. Because the Plaintiff’s NCCAA claims are related to the

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FDCPA claims, the Court has supplemental jurisdiction over those claims.
Accordingly, the Court has subject-matter jurisdiction over this action.
The Court must also have personal jurisdiction over Defendant United
Merchant to render a valid default judgment. For the Court to have personal
jurisdiction, the Plaintiff must prove, by a preponderance of the evidence,
that exercising jurisdiction will (1) comply with the forum state’s long-arm
statute and (2) comport with the due process requirements of the Fourteenth
Amendment. See Carefirst of Maryland, Inc. v. Carefirst Pregnancy Ctrs.,
Inc., 334 F.3d 390, 396 (4th Cir. 2003) (citation omitted). Because North
Carolina’s long-arm statute has been construed to extend as far as due
process allows, Christian Sci. Bd. of Dirs. of First Church of Christ, Scientist
v. Nolan, 259 F.3d 209, 215 (4th Cir. 2001), this two-pronged test is
collapsed into the single inquiry of whether the exercise of personal
jurisdiction over the defendant comports with due process.

Universal

Leather, LLC v. Koro AR, S.A., 773 F.3d 553, 559 (4th Cir. 2014).
The Plaintiff’s Complaint contains jurisdictional facts sufficient to
support the exercise of personal jurisdiction over Defendant United Merchant
by stating that Defendant United Merchant engaged in debt collection efforts
in North Carolina and directed phone calls to the Plaintiff. [Doc. 1 ¶¶ 6-7,

6
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23-24]. Given those contacts with this forum, Defendant United Merchant
should have reasonably anticipated being haled into this Court.
The Plaintiff has also complied with his obligations to effectuate service
of process by serving Defendant United Merchant with a summons and a
copy of the Complaint pursuant to Federal Rule of Civil Procedure 4. [Doc.
5].

Finally, the venue is proper under 28 U.S.C. § 1391(b) and (c).

Accordingly, this Court has jurisdiction over this matter and will proceed to
address the merits of the Plaintiff’s Motion for Default Judgment.
B.

FDCPA

In Count I of the Complaint, the Plaintiff asserts claims against
Defendant United Merchant for violations of the FDCPA. [Doc. 1 at ¶ 54].
In general, the FDCPA regulates abusive and unfair debt collection
practices, ensures consumer protection, encourages fair competition
between debt collectors, and provides a remedy for consumers victimized by
unscrupulous debt collection practices. See 15 U.S.C. § 1692 et seq. To
establish a claim for a violation of the FDCPA, the Plaintiff must show that
(1) he has been the object of collection activity arising from consumer debt;
(2) the defendant qualifies as a debt collector under the FDCPA; and (3) the
defendant has engaged in an act or omission prohibited by the FDCPA. See
Dikun v. Streich, 369 F. Supp. 2d 781, 784-85 (E.D. Va. 2005). Although the
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FDCPA prohibits a number of debt collection procedures, “[t]he FDCPA is a
strict liability statute and a consumer only has to prove one violation to trigger
liability.” Akalwadi v. Risk Mgt. Alts., Inc., 336 F. Supp. 2d 492, 500 (D. Md.
2004) (citing Spencer v. Henderson-Webb, Inc., 81 F. Supp. 2d 582, 590-91
(D. Md. 1999)).
“A debt collector may not use any false, deceptive, or misleading
representation or means in connection with the collection of any debt.” 15
U.S.C. § 1692e. Therefore, a debt collector violates the FDCPA where it
makes a false representation as to the “legal status of any debt,” 15 U.S.C.
§ 1692e(2)(A), threatens “to take any action that cannot legally be taken or
that is not intended to be taken,” 15 U.S.C. § 1692e(5), or uses “any false
representation or deceptive means to collect or to attempt to collect any
debt,” 15 U.S.C. § 1692e(10). To determine whether a debt collector has
violated § 1692e, courts ask whether the collection activity would mislead the
“least-sophisticated consumer.” United States v. Nat’l Fin. Servs., Inc., 98
F.3d 131, 135-36 (4th Cir. 1996). While courts must consider “the capacity
of the statement to mislead[,] evidence of actual deception is unnecessary.”
Id. at 139.
A debt collector violates 15 U.S.C. § 1692e(5) when it threatens to take
legal action that it has no intention of taking. See id. at 138; see also Pantoja
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v. Portfolio Recovery Assocs., LLC, 852 F.3d 679, 683 (7th Cir. 2017)
(stating that a debt collector violates the FDCPA where it sues to collect a
debt or threatens to sue to collect a debt after the statute of limitations has
run). Further, “falsely representing that unpaid debts would be referred to an
attorney for immediate legal action is a deceptive practice” that violates 15
U.S.C. § 1692e(10). Nat’l Fin. Servs., Inc., 98 F.3d at 138 (citing Jeter v.
Credit Bureau, Inc., 760 F.2d 1168, 1175 (11th Cir. 1985)). A debt collector
also violates 15 U.S.C. §§ 1692e, 1692e(2), and 1692e(10) where it attempts
to collect a time-barred debt from a consumer without also advising the
consumer that a partial payment would reset the statute of limitations. See
Jennings v. Dynamic Recovery Sols., LLC, 441 F. Supp. 3d 106, 114 (D. Md.
2020) (finding that the plaintiff stated a plausible claim that the defendant
violated the FDCPA where it “sent a debt-collection letter offering options for
settling a time-barred debt and stating that it could not sue for the [d]ebt
without also advising her that acknowledging the [d]ebt or making a partial
payment would effectively restart the statute of limitations”).

In such

circumstances, “[t]he least sophisticated consumer most certainly would not
be aware that making a payment could make the debt judicially enforceable
. . .” Id. (quoting Smothers v. Midland Credit Mgmt., Inc., No. 16-2202-CM,
2016 WL 7485686, at *5 (D. Kan. Dec. 29, 2016)); see also Pantoja, 852
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F.3d at 685 (“[T]he FDCPA prohibits a debt collector from luring debtors
away from the shelter of the statute of limitations without providing an
unambiguous

warning

that

an

unsophisticated

consumer

would

understand.”).
In North Carolina, the statute of limitations for “a contract, obligation[,]
or liability arising out of a contract” is three years. N.C. Gen. Stat. § 1-52(1).
However, “a new promise to pay or partial payment of an existing debt may
extend the time to collect the debt up to three years from the time of the new
promise or partial payment.” Andrus v. IQMax, Inc., 190 N.C. App. 426, 428,
660 S.E.2d 107, 109 (2008) (quoting Coe v. Highland Sch. Assocs. Ltd.
P’ship, 125 N.C. App. 155, 157, 479 S.E.2d 257, 259 (1997)).
Taking the Plaintiff’s allegations as true by virtue of the Defendant
United Merchant’s default, the Plaintiff has been the object of collection
activity arising from consumer debt, and Defendant United Merchant
qualifies as a debt collector under the FDCPA. Taking the Plaintiff’s
allegations as true, Defendant United Merchant also violated the FDCPA in
several ways, including by threatening to sue the Plaintiff to collect the
alleged debt when the statute of limitations had run, threatening to sue the
Plaintiff to collect the alleged debt when Defendant United Merchant had no
intention of filing such a lawsuit, and failing to disclose to the Plaintiff that
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making a partial payment or promising to pay the alleged debt may extend
the statute of limitations. [Doc. 1 at ¶¶ 33-47].
Under the FDCPA, the Court can award any actual damages incurred
as a result of a debt collector’s violation as well as additional statutory
damages of up to $1,000 based on the “frequency and persistence of
noncompliance by the debt collector, the nature of such noncompliance, and
the extent to which such noncompliance was intentional[.]” 15 U.S.C. §
1692k.

Considering the number of FDCPA violations committed by

Defendant United Merchant,2 the Court will award statutory damages under
the FDCPA. Because the FDCPA only provides for a maximum award of
$1,000 in statutory damages per lawsuit, the Court will award the Plaintiff the
maximum of $1,000 in statutory damages. 15 U.S.C. § 1692k(b)(1); Wright
v. Fin. Serv. of Norwalk, Inc., 22 F.3d 647, 651 (6th Cir. 1994); Richardson
v. William Sneider and Assocs., LLC, No. 4:12-cv-00025, 2012 WL 3525625,
at *10 (E.D. Va. July 24, 2012). The Court will further award the Plaintiff
$1,100 in actual damages under the FDCPA.

The Court finds that Defendant United Merchant’s conduct at least violated 15 U.S.C.
§§ 1692e, 1692e(2)(A), 1692e(5), and 1692e(10).
2

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C.

NCCAA3

In Count II of the Complaint, the Plaintiff asserts claims against
Defendant United Merchant for violations of the NCCAA. [Doc. 1 at ¶¶ 6061].
Similar to the FDCPA, the NCCAA regulates “collection agencies,”
defined as persons “directly or indirectly engaged in soliciting, from more
than one person[,] delinquent claims of any kind owed or due or asserted to
be owed or due the solicited person and all persons directly or indirectly
engaged in the asserting, enforcing or prosecuting of those claims,” N.C.
Gen. Stat. § 58-70-15(a) (internal quotation marks omitted). The NCCAA
prohibits collection agencies from engaging in harassing or oppressive
conduct and collecting or attempting to collect a debt by using coercion or
fraudulent, deceptive, or misleading representations. N.C. Gen. Stat. §§ 5870-95, 58-70-100, 58-70-110. In particular, the NCCAA also specifically
prohibits a collection agency from “[t]hreatening to take any action not in fact
taken in the usual course of business, unless it can be shown that such

“While a party may typically recover only once for his injuries, ‘[d]amages under the
FDCPA do not preclude damages under relevant state law,’ here the NCCAA.” Leto v.
World Recovery Serv., LLC, No. 3:14-cv-00489-FDW, 2015 WL 1897060, at *3 (W.D.N.C.
Apr. 27, 2015) (Cogburn, J.) (citing Baie v. Prime West Mgmt. Recovery, LLC, 08-067958-SWH, 2011 WL 1257148, at *9 (E.D.N.C. Mar. 30, 2011)).
3

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threatened action was actually intended to be taken in the particular case in
which the threat was made.” N.C. Gen. Stat. § 58-70-95(7).
Taking the Plaintiff’s allegations as true by virtue of Defendant United
Merchant’s default, the Plaintiff has been the object of collection activity
arising from consumer debt, and Defendant United Merchant qualifies as a
collection agency under the NCCAA.

Further, like Defendant United

Merchant’s violations of the FDCPA, Defendant United Merchant violated the
NCCAA when attempting to collect the alleged debt from the Plaintiff, first,
by falsely threatening the Plaintiff with litigation that was time-barred and that
Defendant United Merchant did not intend to pursue and, second, by failing
to inform the Plaintiff that making a partial payment or promising to pay the
alleged debt may extend the statute of limitations. [Doc. 1 at ¶¶ 33-47].
The NCCAA provides for actual damages and statutory damages of
between $500 and $4,000 per violation.4 N.C. Gen. Stat. § 58-70-130(b). A
“[v]iolation” does not correlate to the number of counts alleged, but to each
separate instance where the defendant violated the statute. See Baie, 2011

In Count II of the Complaint, the Plaintiff states that he is seeking actual damages “of
not less than $500 nor greater than $4,000 per violation” as well as punitive damages for
Defendant United Merchant’s violations of the NCCAA. [Doc. 1 at § 62-63]. However, in
his Motion for Default Judgment, the Plaintiff further clarifies that he seeks statutory
damages not exceeding $4,000 for violations of the NCCAA. [Doc. 15 at 4]. The Plaintiff
also seeks a total of $1,100 in actual damages for violations of both the NCCAA and the
FDCPA. [Id. at 3]. Because the Court addressed the Plaintiff’s actual damages in its
discussion of the FDCPA, the Court need not address it again here.
4

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WL 1257148, at *4 (awarding $2,000 for each of the five occasions where
the defendant contacted the plaintiff); In re Kirkbride, No. 08-00120-8-RJL,
2010 WL 4809334, at *5 (E.D.N.C. Nov. 19, 2010) (awarding monetary
damages per call, not per count of the NCCAA violated). The Plaintiff does
not, however, specifically allege the number of instances that the Defendant
violated the NCCAA. For example, the Plaintiff alleges that he answered “at
least one” phone call from Defendant United Merchant and that during these
“collection calls” a collector threatened to pursue litigation. [Doc. 1 at ¶¶ 3537] (emphasis added). However, the Plaintiff does not specifically allege the
number of times Defendant United Merchant called or the number of calls
the Plaintiff answered. Giving the Plaintiff’s vague pleadings a generous
inference, the Court finds that he has alleged at least two violations of the
NCCAA by describing the statements made by a collector during “collection
calls.” Accordingly, the Court will award the Plaintiff $4,000 in statutory
damages for Defendant United Merchant’s violations of the NCCAA.
D.

Attorney’s Fees

The Plaintiff requests attorney’s fees pursuant to the FDCPA. [Doc.
15-1].

Attorney’s fees may be awarded where expressly authorized by

contract or statute. United Food and Com. Workers, Local 400 v. Marval
Poultry Co., Inc., 876 F.2d 346, 350 (4th Cir. 1989) (citing Alyeska Pipeline
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Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 257 (1975)). The FDCPA
states that “in the case of any successful action” a plaintiff may recover a
“reasonable attorney’s fee as determined by the court.”

15 U.S.C. §

1692k(a)(3). “This determination is within the sound discretion of the court.”
Barnett v. Creditors Specialty Serv., Inc., No. 1:12-cv-00303, 2013 WL
1629090, at *3 (W.D.N.C. Apr. 16, 2013) (Reidinger, J.) (citing Beasley v.
Sessoms & Rogers, P.A., No. 5:09-cv-43-D, 2011 WL 5402883, at *2
(E.D.N.C. Nov. 8, 2011)). Because the Plaintiff has obtained a default
judgment against Defendant United Merchant, the Court will award
attorney’s fees under the FDCPA.
“The starting point for establishing the proper amount of an award is
the number of hours reasonably expended, multiplied by a reasonable hourly
rate.” Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 174 (4th Cir.
1994). The burden is on the fee applicant to justify the reasonableness of
the requested fee. Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984).
In exercising its discretion in the application of this lodestar method,
the Court is guided by the following factors:
(1) the time and labor expended; (2) the novelty and
difficulty of the questions raised; (3) the skill required
to properly perform the legal services rendered; (4)
the attorney’s opportunity costs in pressing the
instant litigation; (5) the customary fee for like work;
(6) the attorney’s expectations at the outset of the
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litigation; (7) the time limitations imposed by the client
or circumstances; (8) the amount in controversy and
the results obtained; (9) the experience, reputation
and ability of the attorney; (10) the undesirability of
the case within the legal community in which the suit
arose; (11) the nature and length of the professional
relationship between attorney and client; and (12)
attorneys’ fees awards in similar cases.
Grissom v. The Mills Corp., 549 F.3d 313, 321 (4th Cir. 2008) (quoting Spell
v. McDaniel, 824 F.2d 1380, 1402 n.18 (4th Cir. 1987)). “Although the Court
considers all of the factors, they need not be strictly applied in every case
inasmuch as all of the factors are not always applicable.”

Firehouse

Restaurant Grp., Inc. v. Scurmont, LLC, No. 4:09-cv-618-RBH, 2011 WL
4943889, at *12 (D.S.C. Oct. 17, 2011) (citing EEOC v. Serv. News Co., 898
F.2d 958, 965 (4th Cir. 1990)).
1.

Time and Labor Expended

The Plaintiff’s attorney incurred 9 hours on this case, including 6.7
hours of attorney time and 2.3 hours of paralegal time. [Doc. 15-1 at 6]. That
time was expended consulting with the Plaintiff, preparing the Complaint,
effectuating service of process on Defendant United Merchant, securing
entry of default against Defendant United Merchant, and preparing the
present Motion for Default Judgment and related documents. [Doc. 15-4 at
3]. The Court has carefully reviewed the billing records submitted by the

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Plaintiff and finds that the time expended by his attorney was necessary and
reasonable.
2.

Novelty and Difficulty of the Questions Raised

This case required the Plaintiff’s attorney to establish the Plaintiff’s
entitlement to a default judgment on two separate claims with two separate
bodies of relevant case law. The questions presented by those claims,
however, should not have been particularly difficult for the Plaintiff’s attorney,
who attests that he regularly handles consumer rights cases. [Doc. 15-3 at
¶¶ 13-14]. Accordingly, this factor bears little weight in the calculation of a
reasonable fee.
3.

Skill Required to Properly Perform the Legal Services

As discussed above, the questions presented by this case should not
have been particularly challenging for an attorney experienced in consumer
rights cases. Accordingly, this factor bears little weight in the calculation of
a reasonable fee.
4.

Opportunity Costs of Litigation

This litigation necessarily prevented the Plaintiff’s attorney from
devoting time to other matters. Under the relevant factors, an “attorneys’
opportunity costs include the higher rates they would have otherwise
charged in other cases and projects.” Irwin Indus. Tool Co. v. Worthington
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Cylinders Wis., LLC, 747 F. Supp. 2d 568, 596 (W.D.N.C. 2010). However,
the Plaintiff’s attorney does not indicate that this matter was less lucrative
than other types of cases. Accordingly, this factor weighs neither in favor of
nor against awarding the requested fee.
5.

Customary Fee for Similar Work

The Plaintiff requests a rate of $294 per hour for his attorney, James
J. Parr, and $126 per hour for his paralegal, Jacqueline Laino. [Doc. 15-1 at
6-7]. To support that request, the Plaintiff submits information from the
United States Consumer Law Survey Report (“Report”), which shows that
the median hourly rate for consumer law attorneys practicing in Western
North Carolina is $300 per hour, and the mean hourly rate for consumer law
attorneys practicing in North Carolina who have been in practice between six
and ten years5 is $275 per hour. [Doc. 15-2 at 2-3]. The Report further
indicates that the average billable paralegal rate in North Carolina is $126
per hour. [Id. at 2].
The Plaintiff also provides a declaration from his attorney, James J.
Parr, stating that this Court awarded him a rate of $275 per hour in a
consumer law case in 2020.

[Doc. 15-3 at ¶ 10] (citing Hinyub v. AA

The Plaintiff’s counsel has been licensed and practicing consumer law since November
6, 2014. [Doc. 15-1 at 7 n.3].
5

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Recovery Sols., Inc., No. 1:20-cv-00089-MR-WCM, 2020 WL 5899110, at *6
(W.D.N.C. Oct. 5, 2020)). The Plaintiff does not present affidavits of any
other attorneys who regularly practice in the area of Asheville, North Carolina
in order to establish the prevailing rates in the local market.
As the Fourth Circuit has recognized:
[D]etermination of the hourly rate will generally be the
critical inquiry in setting the reasonable fee, and the
burden rests with the fee applicant to establish the
reasonableness of a requested rate. In addition to
the attorney’s own affidavits, the fee applicant must
produce satisfactory specific evidence of the
prevailing market rates in the relevant community for
the type of work for which he seeks an award.
Although the determination of a market rate in the
legal profession is inherently problematic, as wide
variations in skill and reputation render the usual
laws of supply and demand largely inapplicable, the
Court has nonetheless emphasized that market rate
should guide the fee inquiry.
Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 244 (4th Cir. 2009)
(citing Plyler v. Evatt, 902 F.2d 273, 277 (4th Cir. 1990)). In addition to
consideration of specific evidence regarding the prevailing market rate, the
Court may rely upon its own knowledge and experience of the relevant
market in determining a reasonable rate. See Rum Creek Coal Sales, Inc.,
31 F.3d at 179 (“[T]he community in which the court sits is the first place to
look to in evaluating the prevailing market rate.”).

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Based on the foregoing, the Court will find that a reasonable hourly
rate for the work of the Plaintiff’s counsel on this matter, considering his
expertise and experience, to be $275 per hour, and for paralegal work to be
$126 per hour.
6.

Attorney’s Expectation at Outset of Litigation

The Plaintiff’s attorney does not provide any details regarding his
expectations at the outset of litigation. Accordingly, this is not a factor in
calculating a reasonable fee.
7.

Time Limitations

The Plaintiff’s attorney does not claim that this case involved any
urgency or any particular time limitations. Accordingly, this also is not a
factor in calculating a reasonable fee.
8.

Amount Involved and Results Obtained

As noted by the Supreme Court, “‘the most critical factor’ in
determining the reasonableness of a fee award ‘is the degree of success
obtained.’” Farrar v. Hobby, 506 U.S. 103, 114 (1992) (quoting Hensley v.
Eckerhart, 461 U.S. 424, 436 (1983)). Here, the Court awarded the Plaintiff
the full amount of damages that he sought on his claims under the FDCPA
and the NCCAA. [Doc. 15 at 3-4]. As such, this factor weighs in favor of
awarding a fee based upon a full hourly lodestar rate.
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9.

Experience, Reputation, and Ability of Counsel

The Plaintiff’s attorney attests that he has significant experience in
consumer rights cases because he focuses largely on consumer law and has
settled over 600 consumer rights cases.

[Doc. 15-3 at ¶¶ 13-14].

Accordingly, this factor weighs in favor of awarding a fee based upon a full
hourly lodestar rate, as counsel was able to represent the Plaintiff in an
efficient manner.
10.

Undesirability of the Case in the Legal Community

The Plaintiff’s attorney does not provide any details regarding the
undesirability of cases like this one in the legal community. Accordingly, this
is not a factor in calculating a reasonable fee.
11.

Relationship between Attorney and Clients

The Plaintiff’s attorney does not provide any details regarding his
relationship with his client. Accordingly, this also is not a factor in calculating
a reasonable fee.
12.

Fee Awards in Similar Cases

The Plaintiff’s attorney attests that this Court awarded him a rate of
$275 per hour in a similar consumer law case last year. [Doc. 15-3 at ¶ 10]
(citing Hinyub, 2020 WL 5899110, at *6). As such, this factor weighs in favor
of awarding a fee based upon a full hourly lodestar rate.
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After consideration of all of the above factors, the Court concludes that
the lodestar method results in a reasonable award. As such, the Court will
award the Plaintiff $1,842.50 for counsel’s work (6.7 hours x $275 per hour),
and $289.80 for paralegal time (2.3 hours x $126 per hour), for a total fee of
$2,132.30.
E.

Costs

In addition to attorney’s fees, the Plaintiff seeks an award of $491 in
costs for the filing fee in this matter and the costs of serving Defendant United
Merchant. [Doc. 15 at 4; see also Doc. 15-1 at 5; Doc. 15-4 at 4, 6]. The
FDCPA allows a successful plaintiff to recover their costs, including filing
fees. 15 U.S.C. § 1692k(a)(3). The Court finds the requested costs to be
reasonable and therefore awards the Plaintiff $491 in costs. See 28 U.S.C.
§ 1920.
ORDER
IT IS, THEREFORE, ORDERED that the Plaintiff’s “Motion for Default
Judgment Against Defendant, United Merchant Asset Recovery of WNY,
LLC” [Doc. 15] is GRANTED.

The Plaintiff shall have and recover of

Defendant United Merchant a judgment of $1,100 in actual damages
pursuant to 15 U.S.C. § 1692k(a)(1) and N.C. Gen. Stat. § 58-70-130(a), a
judgment of $1,000 in statutory damages pursuant to 15 U.S.C. §
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1692k(a)(2)(A), and a judgment of $4,000 in statutory damages pursuant to
N.C. Gen. Stat. § 58-70-130(b), for a total judgment of $6,100.
IT IS FURTHER ORDERED that the Plaintiff’s “Motion for Costs of the
Action and Attorney’s Fees” [Doc. 15-1] is GRANTED, and the Plaintiff shall
have and recover from Defendant United Merchant $2,132.30 in attorney’s
fees and $491.00 in costs pursuant to 15 U.S.C. § 1692k(a)(3).
IT IS SO ORDERED.

Signed: August 1, 2022

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