Andersen v. Riverwalk Holdings LTD

Filing 8

ORDER signed by Judge Pamela Pepper on 12/2/2015 GRANTING 6 Motion for Default Judgment, DISMISSING John Does 1-25, and ORDERING that plaintiff must provide an accounting of damages, including attorney's fees and pre- and post-judgment interest, as well as a proposed order of judgment, no later than 1/22/2016. (cc: all counsel) (pwm)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DEAN ANDERSEN,

Case No. 15-cv-621-pp
Plaintiff,

v.
RIVERWALK HOLDINGS LTD a/k/a
DE VILLE ASSET MANAGEMENT LTD, and
JOHN DOES 1-25
Defendants.

DECISION AND ORDER DISMISSING DEFENDANTS JOHN DOES 1-25,
GRANTING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT (DKT. NO. 6),
AND ORDERING PLAINTIFF TO SUBMIT PROOF OF DAMAGES AND COSTS
BY A DATE CERTAIN
_____________________________________________________________________________
I.

INTRODUCTION
On May 21, 2015, Plaintiff Dean Andersen filed the complaint alleging

two counts: (1) violations of the Fair Debt Collection Practices Act and (2)
violations of the Wisconsin Consumer Act. Dkt. No. 1. The defendants,
Riverwalk Holdings Ltd. a/k/a DeVille Asset Management Ltd. and John Does
1-25, failed to respond to the action. On June 15, 2015, the plaintiff requested
that the clerk’s office enter default, Dkt. No. 5; it did so on June 16, 2015. This
order addresses Andersen’s unopposed motion for default judgment.
II.

FACTS
In June of 2014, the plaintiff discovered “a debt on his credit report” that

Riverwalk had reported to the credit bureaus. Dkt. No. 1 at ¶10. On June 10,
2014, the plaintiff contacted Riverwalk by phone to discuss the debt. Id. at
1

¶11. The defendant’s agent informed the plaintiff that he had opened a credit
card account in 2007, and that a third-party had “charged that account off in
2008 for non-payment.” Id. The agent informed the plaintiff that “the last
payment date was in October of 2007.” Id.
The plaintiff understood that Wisconsin had a six-year statute of
limitations on this type of debt, which he believed would have extinguished the
October 2007 debt in October of 2013. Id. at ¶¶12-14. The plaintiff asked the
agent about that time limit, but she insisted that Riverwalk still could collect
on the debt and report it to the credit bureau because the debt had
“transferred from one company to another.” Id. at ¶¶15-17. When the plaintiff
asked the agent to remove the debt from his credit report, the agent refused to
do so. Id. at ¶18. During a follow-up phone call in November of 2014, Riverwalk
“represented that it had sold” the plaintiff’s debt. Dkt. No. 6-1 at 2.
Prior to filing the complaint, the plaintiff’s attorney “sent” the defendant
“a pre-litigation letter” that asked to discuss settlement. Id. at 3. The plaintiff
asked the defendant to respond within two weeks of receiving the letter “and
even followed up via phone.” Id. The defendant never responded to these
efforts, and the plaintiff proceeded with litigation. Id.
III.

PROCEDURAL HISTORY
The plaintiff filed this action for breach of the FDCPA and the Wisconsin

Consumer Act on May 21, 2015. Dkt. No. 1. Because the events leading to the
complaint occurred in June of 2014 and the plaintiff filed the complaint in May
of 2015, the plaintiff has timely filed the complaint within the FDCPA’s one2

year statute of limitation. 15 U.S.C. §1692k(d). The WCA also requires the
plaintiff to commence an action “within one year after the date of the last
violation.” Wis. Stat. §425.307. Therefore, the plaintiff also has timely brought
the WCA claims. The plaintiff brings the action against Riverwalk Holdings LTD
and John Does 1-25. According to the plaintiff, “John Does 1-25 are fictitious
names of individuals substituting names of [d]efendants where identities will be
disclosed in discovery and should be made parties to this action.” Dkt. No. 1 at
¶9.
The clerk’s office issued the summons on May 22, 2015, and the plaintiff
returned the executed summons on May 26, 2015. Dkt. No. 3. The document
shows that, on May 22, 2015, the plaintiff served Riverwalk through the CT
Corporation System (listed on the Wisconsin Department of Financial
Institutions’ web site as Riverwalk’s registered agent). Id. at 2. At that time, and
for obvious reasons, the plaintiff did not attempt service on any John Does. The
answer came due on June 12, 2015. Id. On June 15, 2015, when the
defendants had not filed an answer, the plaintiff filed a motion for entry of
default, Dkt. No. 5, and, on June 16, 2015, the clerk’s office entered default.
Finally, on June 24, 2015, the plaintiff filed a motion for default judgment.
Dkt. No. 6. The plaintiff served the motion on Riverwalk via CT Corporation
System and at three additional “associated addresses.” Dkt. No. 6-5. The
plaintiff did not serve the motion on any of the John Doe defendants.
As of the date of this order, the defendant has not made an appearance
or otherwise participated in this litigation. Because the defendant has failed to
3

respond to the complaint and the clerk’s office has entered default against it,
this court will “accept all well-pleaded facts relating to liability as true.” J&J
Sports Prod. Inc. v. ARH Enter. LLC, No. 13-CV-1383, 2014 WL 4656118, at *1
(E.D. Wis. Sept. 16, 2014) (citing Black v. Lane, 22 F.3d 1395, 1399 (7th Cir.
1999) and Graham v. Satkoski, 51 F.3d 710, 713 (7th Cir. 1995)).
The court notes that, as of the date of this order, the plaintiff has not
discovered the identity of any of the John Doe defendants, has not served any
motions or pleadings on those defendants, has not brought the motion for
default judgment against those defendants, and has not had the opportunity to
conduct discovery regarding any additional defendants. Therefore, the court
will dismiss John Does 1-25. The court will do so without prejudice, so that the
defendant can bring suit against those unidentified individuals if he ever
discovers their identities.
IV.

DEFAULT JUDGMENT STANDARD
Fed. R. Civ. P. 55(b)(2) governs the entry of a default judgment by the

court. It requires the party to seek the judgment from the court and allows the
court to conduct a hearing “when, to enter or effectuate judgment, it needs to:
(A) conduct an accounting; (B) determine the amount of damages; (C) establish
the truth of any allegation by evidence; or (D) investigate any other matter.”
Fed. R. Civ. P. 55(b)(2)(A)-(D). A federal district court “exercises discretion in
determining whether to enter a default judgment.” Vincent v. Madison, No. 11C-205, 2014 WL 1672041, at *2 (E.D. Wis. Apr. 28, 2014) (citing O’Brien v. R.J.
O’Brien & Assocs., Inc., 998 F.2d 1394, 1398 (7th Cir. 1993)). The entry of
4

default judgment “establishes as a matter of law, that the defendant is liable to
the plaintiff on each cause of action alleged in the complaint.” Id. (citation
omitted). This does not mean that “the allegations in the complaint with respect
to the amount of the damages are . . . deemed true.” Id. (quoting In re Catt, 368
F.3d 789, 793 (7th Cir. 2004)).
Once the Clerk of Court enters “default against the defendant, the Court
must accept all well-pleaded facts relating to liability as true.” J&J Sports Prod.
Inc. v. ARH Enter. LLC, No. 13-CV-1383, 2014 WL 4656118, at *1 (E.D. Wis.
Sept. 16, 2014) (citing Black v. Lane, 22 F.3d 1395, 1399 (7th Cir. 1999) and
Graham v. Satkoski, 51 F.3d 710, 713 (7th Cir. 1995)). The plaintiff, however,
still has “the responsibility to prove up damages under Rule 55(b)(2).” Id.
“Indeed, even when a default judgment is warranted based on a party’s
failure to defend, the allegations in the complaint with respect to the amount of
the damages are not deemed true, and the Court must conduct an inquiry to
ascertain the amount of damages with reasonable certainty.” Id. (internal
quotation marks and citations omitted). The court cannot enter default
judgment “without a hearing on damages unless ‘the amount claimed is
liquidated or capable of ascertainment from definite figures contained in the
documentary evidence or details in the affidavits.’” Id. (quoting e360 Insight v.
The Spamhaus Project, 500 F.3d 594, 602 (7th Cir. 2007)). “In other words,
while a default judgment establishes liability, it ‘does not answer whether any
particular remedy is appropriate.’” Campbell v. ECW, Inc., No. 13-C-1066,

5

2014 WL 3895534, at *1 (E.D. Wis. Aug. 7, 2014) (quoting The Spamhaus
Project, 500 F.3d at 602).
V.

ANALYSIS
A. The court finds that the plaintiff’s complaint sets forth the basis for a
prima facie case of misrepresentation of the debt’s status under 15
U.S.C. §1692e(2)(A).
The FDCPA serves “to eliminate abusive debt collection by debt

collectors,” 15 U.S.C. §1629(e), and “is intended for the protection of
unsophisticated consumers.” Evory v. RJM Acquisitions Funding LLC, 505
F.3d 769, 774 (7th Cir. 2007). The Act defines “debt collector” as “any person
who uses any instrumentality or interstate commerce or the mails in any
business the principal purpose of which is the collection of any debts, or who
regularly collects or attempts to collect, directly or indirectly, debts owed or due
or asserted to be owed or due another.” 15 U.S.C. §1692(a)(6). The defendant,
Riverwalk Holdings, Ltd. a/k/a DeVille Asset Management, Ltd., is a debt
collector. Dkt. No. 1 at ¶8. See also About Us, Riverwalk Holdings, Ltd. (July
16, 2015, 1:41 P.M.), http://www.rwhsales.com/about-us; and About Us,
DeVille Asset Management, Ltd. (July 16, 2015, 1:43 P.M.),
http://www.devilleltd.com/about-us/.
Title 15 U.S.C. §1692e prohibits the “use [of] any false, deceptive, or
misleading representation or means in connection with the collection of any
debt.” The debt collector may not make a “false representation of—the
character, amount, or legal status of any debt.” 15 U.S.C. §1692e(2)(A). Under
Wisconsin law, “[a]n action upon any contract, obligation or liability, express or
6

implied, including an action to recover fees for professional services . . . shall
be commenced within 6 years after the cause of action accrues or be barred.”
Wis. Stat. §893.43. When that six-year statute of limitations “has expired, the
right is extinguished as well as the remedy.” Wis. Stat. §893.43. “It is the rule
of law in this state that the running of the statute extinguishes the right . . .
and that the obligation is thereby extinguished as completely as if it had been
paid or otherwise satisfied.” First Nat. Bank of Madison v. Kolbeck, 247 Wis.
462, 464 (Wis. 1945). “When the right is extinguished a creditor may no longer
claim the money is owed.” Klewer v. Cavalry Inv., LLC, No. 01-C-521 (W.D. Wis.
Jan. 30, 2002).
The plaintiff incurred a debt in 2007. Dkt. No. 1 at ¶11. Because the last
payment occurred in October of 2007, id. at ¶12, the six-year statute of
limitations ran out in October of 2013. On June 10, 2014, an agent for the
defendant represented to the plaintiff that the defendant was continuing to
attempt to collect the debt. Id. at ¶15. The agent knew that the previous owner
of the debt, Providian, had “charged off” the debt in 2008, id. at ¶11, and the
agent had knowledge of the Wisconsin six-year statute of limitations, id. at
¶16. Although the “test for determining whether a debt collector violated
§1692e is objective . . . the existence of the debt collector’s knowledge . . .
sheds light on the . . . communication.” Turner v. J.V.D.B. & Assocs., Inc., 330
F.3d 991, 995 (7th Cir. 2003). For these reasons, the court finds that the
plaintiff has established a prima facie case for finding that the defendant did
not have the right to collect on the debt and that the agent “falsely
7

represent[ed] the . . . legal status of [the plaintiff’s] debt.” 15 U.S.C.
§1692e(2)(A).
B. The plaintiff has established a prima facie showing that a communication
of credit information occurred when the defendant knew or should have
known the information was false and that the defendant failed to report
the debt as disputed.
Title 15 U.S.C. §1692e(8) prohibits a debt collector from
“[c]ommunicating or threatening to communicate to any person credit
information which is known or which should be known to be false, including
the failure to communicate that a disputed debt is disputed.” “If a debtor
disputes the debt, ‘a debt collector cannot communicate the debtor consumer’s
credit information to others without disclosing the dispute.’” Smith v. Encore
Capital Group, Inc., 966 F. Supp. 2d 817, 826 (E.D. Wis. 2013) (quoting Hooks
v. Forman, Holt, Eliades & Ravin, LLC, 717 F.3d 282, 285 (2d Cir. 2013)). “The
section applies even when a false representation is unintentional.” Id. (citing
Turner, 330 F.3d at 995 (7th Cir. 2003)).
In June of 2014, the plaintiff contacted the defendant and disputed a
debt that the defendant had reported to the credit reporting agencies. Dkt. No.
1 at ¶¶10-11. The plaintiff asked the defendant to remove the debt from his
credit report. Id. at ¶15. The defendant responded, “as long as that account
has been turned over to another agency, and that agency is reporting collection
activities on it, then they can put it on [your credit report] as a collection item.”
Id. at ¶17. The plaintiff challenged the debt and asked, again, that the
defendant remove the item from his credit report. Id. at ¶18. The defendant
refused to do so. Id. With this communication, the plaintiff sufficiently
8

informed the defendant that he disputed the debt, and the defendant “then
knew or should have known that the information was false.” Smith, 966 F.
Supp. 2 at 826. Accordingly, the court finds that the plaintiff has established a
prima facie basis for finding that the defendant continued to “communicate[]
the false information to the credit bureaus,” in violation of 15 U.S.C. §1692e(8).
Smith, 966 F. Supp. 2d at 826.
C. The court finds that the plaintiff has established a sufficient showing
that the defendant made a false representation in an attempt to collect a
debt under 15 U.S.C. §1692e(10).
The FDCPA prohibits a debt collector from “us[ing] any false
representation or deceptive means to collect or attempt to collect any debt or to
obtain information concerning a consumer.” 15 U.S.C. §1962e(10). During the
June 2014 phone call, the plaintiff asked, “Are you still attempting to collect
[the debt]?” Dkt. No. 1 at ¶15. The defendant responded, “Yes sir. We can still
collect on this account, yes sir.” Id. The plaintiff clarified, “So you want me to
pay this?” Id. And the defendant answered, “Yeah.” Id. At the time of the phone
call, the defendant knew or should have known that the debt was extinguished
and time-barred under Wisconsin law. Therefore, the plaintiff has established a
prima facie case that these statements constituted a false representation. The
nature of the conversation indicates that the defendant made the statements in
an attempt to collect the debt. The allegations establish a prima facie case for
false representation under 15 U.S.C. §1692e(10).

9

D. The plaintiff has established a prima facie case under Wis. Stat.
§427.104(1)(c), because he has shown that the defendant knew or should
have known that the debt was extinguished or time-barred, but
continued to report the debt to the credit bureaus.
The WCA, Wis. Stat. §§421-427, “protect[s] consumers against unfair,
deceptive, false, misleading and unconscionable practices by merchants . . .
and coordinate[s] the regulation of consumer credit transactions with the
policies of the federal consumer credit protection act.” Wis. Stat.
§§421.102(2)(b), (d). Under Wisconsin law, a debt collector may not “[d]isclose
or threaten to disclose information adversely affecting the customer’s
reputation for credit worthiness with knowledge or reason to know that the
information is false.” Wis. Stat. §427.104(1)(c). As discussed above, the
defendant knew or should have known that the plaintiff’s debt was
extinguished and time-barred, yet the defendant reported the information to
the credit reporting agencies and refused to stop submitting the information
after the plaintiff disputed the debt. The plaintiff has established a prima facie
case for continued reporting of extinguished debts under Wis. Stat.
§427.104(1)(c).
E. The court finds that the complaint sets forth a prima facie case for
disclosure of a disputed debt under Wis. Stat. §427(1)(f).
The WCA also prohibits a debt collector from “disclos[ing] or threaten[ing]
to disclose information concerning the existence of a debt known to be
reasonably disputed by the customer without disclosing the fact that the
customer disputes the debt.” Wis. Stat. §427.104(1)(f). When the plaintiff called
10

the defendant to discuss the debt in June of 2014, he informed the defendant
that he disputed the debt and asked the defendant to stop reporting the debt to
the credit reporting agencies. As discussed above, the defendant refused to do
so. These facts establish a prima facie case for disclosure of a disputed debt
under Wis. Stat. §427.104(1)(f).
F. The plaintiff has set forth prima facie evidence of enforcement of a debt
that did not exist under Wis. Stat. §427.104(1)(j).
Under the WCA, a debt collector may not “[c]laim, or attempt or threaten
to enforce a right with knowledge or reason to know that the right does not
exist.” Wis. Stat. §427.104(1)(j). When the plaintiff disputed the debt that
appeared on his credit report, he informed the defendant of the six-year statute
of limitations in Wisconsin, and the defendant’s representative stated that she
knew about that law. However, as stated above, the defendant continued to
attempt to collect on and enforce the debt. The court finds that the plaintiff has
set forth the basis for a prima facie case under Wis. Stat. §427.104(j).
G. The plaintiff may recover $1,000 per proceeding under the FDCPA or
under the WCA, but not under both.
The plaintiff asserts that the defendant violated three separate portions
of the FDCPA, and the court finds that the facts support a prima facie finding
that such violations occurred. The FDCPA allows a plaintiff to recover “any
actual damages sustained by [the plaintiff] as a result of” a violation. 28 U.S.C.
§1692k(a)(1). The court may award “additional damages,” but those damages
may “not exceed[] $1,000.” 28 U.S.C. §1692k(a)(2)(A). This language “limits the
statutory damages available to a successful plaintiff to $1,000 for each
11

proceeding rather than $1,000 for each violation of the statute.” Barber v. Nat’l
Revenue Corp., 932 F.Supp. 1153, 1155 (W.D. Wis. 1996). The plaintiff asks
the court to award the maximum of $1,000 in damages under the FDCPA.
The plaintiff also asserts that the defendant violated the WCA, and the
court again agrees that the plaintiff has proven the prima facie case.1 Here,
however, the plaintiff asks the court to buck precedent and award $1,000 per
violation, not $1,000 per proceeding. Under the WCA, a plaintiff “may recover
actual damages.” Wis. Stat. §427.105(1). Similar to the FDCPA, Wisconsin law
limits liability to “not . . . less than $100 nor greater than $1,000.” Wis. Stat.
§425.304. The Wisconsin Supreme Court has held, “The rules of the Wisconsin
Consumer Act are to be construed to coordinate with the regulation of
consumer transactions under the Federal Consumer Protection Act.” Assoc.
Fin. Serv. Co. of Wis. v. Hornik, 336 N.W.2d 395, 400 (Wis. 1983) (citing Wis.
Stat. §421.102(2)(d)). That court determined that the WCA “allows a consumer
to collect one penalty assessment up to a maximum of $1,000 in addition to
any actual damages in any action where the consumer establishes a violation”
of the WCA. Hornik, 336 N.W.2d at 400. The Hornik court also explicitly
prohibited a plaintiff from “recover[ing] under both the FDCPA and the WCA for
the same conduct.” Bruesewitz v. Law Offices of Gerald E. Moore & Assoc.,

In the motion for default judgment, the plaintiff states, “The aforementioned
violations constitute five separate violations of the WCA.” Dkt. No. 6-1 at 5. The
court disagrees. On pages four and five of the motion, the plaintiff asserts that
the defendant violated Wis. Stat. §427.104(1)(c), §427.104(1)(f), and
§427.104(1)(j). The court finds that “the aforementioned” actually constitute
three separate violations of the WCA.
1

12

P.C., No. 06-C-400, 2006 WL 3337361, at *3 (W.D. Wis. Nov. 15, 2006) (citing
Hornik, 336 N.W.2d at 400)).
Although not often litigated, several courts in Wisconsin have held that a
plaintiff may recover $1,000 per proceeding, not per violation, under the WCA
and that a plaintiff may not recover under both the FDCPA and the WCA. See
Nelson v. Santander Consumer USA, Inc., 931 F. Supp. 2d 919, 935 (W.D. Wis.
2013), vacated by stipulation No. 11-CV-307, 2013 WL 5377280 (W.D. Wis.
June 7, 2013); Bruesewitz, 2006 WL 3337361 at *3; Hartman v. Meridian Fin.
Serv., Inc., 191 F. Supp. 2d 1031, 1050 (W.D. Wis. 2002); Ganske v. Checkrite,
Ltd., No. 96-C-541, 1997 WL 33810208, at *4 (W.D. Wis. Jan. 6, 1997). The
court finds that the plaintiff may recover $1,000 per proceeding under either
the FDCPA or the WCA, but not both.
The pleadings, however, do not satisfy the court in terms of damages. In
determining damages in the context of a motion for default judgment, courts
consider “the amount of money potentially involved, whether there is a material
issue of fact or issues of substantial public importance are at issue, whether
the default is largely technical, whether the plaintiff has been substantially
prejudiced by the delay involved, and how harsh an effect a default judgment
might have.” Vincent v. Madison, No. 11-C-205, 2014 WL 1672041, at *2 (E.D.
Wis. Apr. 28, 2014) (citation omitted). This court cannot award damages until it
has “ascertain[ed] the amount of damages to a reasonable degree of certainty.”
Id. (citing In re Catt, 368 F.3d 789, 793 (7th Cir. 2004)). At this time, the
plaintiff has not stated the amount of the disputed debt. The plaintiff has not
13

included any reasons for requesting $1,000, although presumably he does so
because that is the maximum amount allowed under the law. Because the
court cannot confidently assess the amount that it should award at this time, it
will require the plaintiff to file a document demonstrating the amount of
damages he requests, and present evidence for why he should receive that
amount in damages.
H. The court will award attorney’s fees, costs, and interest, but will require
the plaintiff to file evidence demonstrating the actual amount of damages
that the court should award.
The plaintiff’s attorney “seeks to recover for 22.9 hours of work at a . . .
rate of $350/hr.” Dkt. No. 6-1 at 9. When the plaintiff brings a “successful
action to enforce . . . liability,” the plaintiff may recover “the costs of the action,
together with a reasonable attorney’s fee as determined by the court.” 15
U.S.C. §1692k(a)(3). The FDCPA’s “language makes an award of fees
mandatory.” Tolentino v. Friedman, 46 F.3d 645, 651 (7th Cir. 1995). The WCA
provides more instruction than the FDCPA. Wis. Stat. §425.308. It requires2 a
prevailing customer to recover attorney fees “in an amount sufficient to
compensate attorneys representing customers in actions arising from
consumer transactions.” Wis. Stat. §425.308(2). The law includes factors that a
“court may consider” when determining the amount of attorney’s fees:
(a) The time and labor required, the novelty and difficult of the questions
involved and the skill requisite properly to conduct the cause;
“If the customer prevails in an action arising from a consumer transaction,
the customer shall recover the aggregate amount of costs and expenses
determined by the court to have been reasonably incurred . . . together with a
reasonable amount of attorney fees.” Wis. Stat. §425.308(1) (emphasis added).
2

14

(b) The customary charges of the bar for similar services;
(c) The amount involved in the controversy and the benefits resulting to the
client or clients from the services;
(d) The contingency or the certainty of the compensation;
(e) The character of the employment, whether casual or for an established
and constant client; and
(f) The amount of the costs and expenses reasonably advanced by the
attorney in the prosecution or defense of the action.
Wis. Stat. §425.308(2)(a)-(f). The Seventh Circuit encourages courts to consider
similar factors. See Tolentino, 46 F.3d at 652 (citation omitted).
The Seventh Circuit “define[s] a reasonable hourly rate as one that is
‘derived from the market rate for the services rendered.’” Pickett v. Sheridan
Health Care Ctr., 664 F.3d 632, 640 (7th Cir. 2011) (quoting Denius v. Dunlap,
330 F.3d 919, 930 (7th Cir. 2003)). The circuit “presume[s] that an attorney’s
actual billing rate for similar litigation is appropriate to use as the market. The
fee applicant bears the burden of producing satisfactory evidence—in addition
to the attorney’s own affidavits that the requested rates are in line with those
prevailing in the community.” Id. (internal quotation marks and citations
omitted).
The plaintiff’s attorney has three years of experience and practices in
New Jersey. To support his fee request, he included several documents. First,
he attached the 2013-2014 “United States Consumer Law Attorney Fee Survey
Report.” Dkt. No. 6-2. This document “breaks down the average, median, and
percentiles for the hourly rate charged by consumer law practitioners nationand region-wide.” Dkt. No. 6-1 at 9. The median hourly rate for the Atlantic
15

region is $325, for New Jersey is $350, for the Midwest region is $375, and for
Wisconsin is $387. Id. See also Dkt. No. 6-2 at 22, 26, 71, and 82. Counsel
also provided the 2014-2015 Laffey Matrix, Dkt. No. 6-3, which indicates that
attorneys with one to three years of experience have an average hourly rate of
$255. Id. at 2.
Counsel argues that his request to recover $350 an hour is reasonable
because it “is . . . the median [rate] in New Jersey and [is] significantly below
the median in Wisconsin.” Dkt. No. 6-1 at 10. He asserts that his graduation
from Harvard Law School and his work as a judicial law clerk and as an
associate at two large law firms also supports this hourly rate. Id. Counsel is
now a solo practitioner, and focuses on consumer protection law. Id. He asserts
that the 22.9 hours of work completed on this case is reasonable, because, as a
solo practitioner, he “does all drafting, editing, word processing, mailing, and
filing himself.” Id. at 10-11. Based on the evidence provided, the court finds the
$350 hourly rate and 22.9 hours of work completed to be reasonable and will
award attorney’s fees in that amount.
The plaintiff’s attorney also makes a request for post-judgment collection
costs and fees. The Seventh Circuit has not ruled on whether the FDCPA allows
this. One court in this circuit has addressed the issue, finding, in a footnote,
that “fees necessarily expended to collect a judgment are also recoverable.”
Queen v. Nationwide Credit, Inc., No. 10-CV-1445, 2010 WL 4006676, at n.1
(N.D. Ill. Oct. 7, 2010) (citation omitted). The Seventh Circuit, when addressing
pre-judgment collection under ERISA, stated, “It would make no more sense to
16

deny attorney’s fees for efforts to collect a judgment than it would to deny them
for efforts to defend a judgment.” Free v. Briody, 793 F.2d 807, 809 (7th Cir.
1986). Based on this language, the court will award post-judgment collection
costs. The court will, however, require the plaintiff to file an accounting of the
costs and to seek an amended judgment once counsel incurs those costs.
Finally, the plaintiff seeks pre- and post-judgment interest. The plaintiff
states, “The issuance of prejudment interest is controlled by federal law.” Dkt.
No. 6-1 at 12 (citation omitted). The court disagrees. “When Wisconsin courts
award interest, they look to Wis. Stat. §183.04.” Trease v. Tri-State
Adjustments, Inc., 934 F. Supp. 2d 1016, 1018 (E.D. Wis. 2013). In Wisconsin,
a court may award pre-judgment interest to the plaintiff “when the amount
owed to it is readily determinable or when there is a reasonably certain
standard of measurement by which one can ascertain the amount he owes.”
First Nat’l Bank of Manitowoc v. Cincinnati Ins. Co., 485 F.3d 971, 981 (7th
Cir. 2007) (citing Olguin v. Allstate Ins. Co., 71 Wis. 2d 160 (Wis. 1976)). “The
equitable policy supporting such recovery is that a plaintiff should be
compensated for the time value of the money he would have had if the payment
had been made when due.” Chicago Title Ins. Co. v. Runkel Abstract & Title
Co., 653 F. Supp. 2d 926, 928 (W.D. Wis. 2009). “Under §138.04, the rate for
preverdict interest is 5% per year.” Trease, 934 F. Supp. 2d at 1018.
The plaintiff has set forth a prima facie case under both the FDCPA and
the WCA. Therefore, there is a basis for the court to enter a money judgment
for damages, fees, and costs. The plaintiff, however, has not shown a
17

reasonably determinable amount owed. The court will require the plaintiff to
file a submission containing evidence of the amount owed. If the plaintiff
adequately proves up a reasonably determinable amount owed, the court will
enter a judgment with pre-judgment interest at that time.
Title 28 U.S.C. §1961(a) allows a prevailing party to recover interest “on
any money judgment in a civil case recovered in a district court.” That “interest
shall be calculated from the date of the entry of the judgment, at a rate equal to
the weekly average 1-year constant maturity Treasury yield, as published by
the Board of Governors of the Federal Reserve System, for the calendar week
preceding the date of the judgment.” Id. The plaintiff has shown that the
defendant violated the FDCPA and WCA, which provides a basis in the law for
the recovery of a money judgment. Therefore, the court’s judgment will include
an award of post-judgment interest pursuant to this statute.
VI.

CONCLUSION
The plaintiff has made a prima facie case that the defendant

misrepresented the legal status of the plaintiff’s debt, communicated false
information to credit agencies, and made false representations in an attempt to
collect a debt. The defendant also continued to report a debt it knew or should
have known was extinguished, disclosed a disputed debt to credit agencies,
and enforced a debt it knew or should have known did not exist. The court will
grant the plaintiff’s motion for default judgment.
Under the FDCPA and the WCA the plaintiff may recover up to $1,000
per proceeding, but the plaintiff may not recover under both acts. Because the
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plaintiff has not provided a sufficient accounting of damages, the court will
require the plaintiff to submit evidence of damages calculations, and
evidentiary support. Once the court determines the reasonably determinable
amount of damages, it will enter judgment. The judgment will include
attorney’s fees and pre- and post-judgment interest. When the plaintiff collects
the judgment, he must then file an accounting of the collection costs. If
reasonable, the court will enter a judgment for post-judgment collection costs
at that time.
The court DISMISSES WITHOUT PREJUDICE John Does 1-25.
The court GRANTS the plaintiff’s motion for default judgment. (Dkt. No.
6.)
The court ORDERS that, no later than Friday, January 22, 2016, the
plaintiff provide an accounting of damages, including attorney’s fees and preand post-judgment interest, as well as a proposed order of judgment.
Dated in Milwaukee, Wisconsin this 2nd day of December, 2015.

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