Topic: Lawsuit filed a week ago

[trueq]

If you get $1 over the offer of judgment in the end, you are not liable for for their attorney's fees going forward.

If you are sure to get more than $1000, reject the Rule 68.

If you hire an attorney now, you will almost 100% get more then $1000 in the end because attorney's fees are actual damages.    They sent the Rule 68 because they know they will lose, but want the chance to shut you down in terms of risk as a pro se'.

Its a tough call.     It depends how much you want to fight.

[eagle5166]

Fed. R. Civ. P. 68(d) states you must pay the defendant's "costs".  However "costs" typically does not include attorneys fees.  28 USC 1920.  Rule 68 isn't clear cut and its effect is subject to much uncertainty.

[trueq]

I had a Federal Magistrate just over the summer said Rule 68, "costs" does unclude attorney's fee's going forward if I would not prevail to an amount greater than the Rule 68 offer.

Like any judge...its all a matter of interpretation.

If a rule 68 eventually went against me, I certainly would argue their attorney's fees are not costs.

[cgoodwin]

I will say it again, it is time to get an attorney involved.  A good FDCPA attorney will not charge you a dime.  They will use the fee shifting of the FDCAP to charge their cost to the defendant.

What their "Judgment Order" is saying is, as far as they are concerned the maximum they are liable to you for is $1,000.00 statutory FDCPA damages.  The burden is now on you to prove why they are liable for more than just FDCPA statutory limits.  As helpful as this board is, and knowledgable the members are, short of UPL, we can only assist you so far.

Why the hesitation to get an attorney involved at this point since you have done the heavy lifting already?

[KFMAN]

http://www.ndd.uscourts.gov/dndopinions/html/1-05-cv-02-52.htm

Interesting case where a Rule 68 was filed.

[KFMAN]

If you get $1 over the offer of judgment in the end, you are not liable for for their attorney's fees going forward.

If you are sure to get more than $1000, reject the Rule 68.

If you hire an attorney now, you will almost 100% get more then $1000 in the end because attorney's fees are actual damages.    They sent the Rule 68 because they know they will lose, but want the chance to shut you down in terms of risk as a pro se'.

Its a tough call.     It depends how much you want to fight.

I sent the complaint by CMRRR so as long as I am awarded $1,000 plus actual costs that would get me over the judgment amount, not to mention other costs involved.

[KFMAN]

OC is out of the picture right now since the CA turned the account back and this lawsuit is over CA violations.  Now if this thing goes to mediation and I chose ARB with JAMS in the terms and conditions of the contract to settle the CA's FDCPA and state violations, would going to JAMS open me up to the alleged account balance, since OC still owns the account?

[KFMAN]

In reply to post #92,

One looks at a lot of cases to find a little gem like this one in my own district.

10TH CIRCUIT DECISIONS

FAIR CREDIT REPORTING ACT (ATTORNEYS’ FEES)

Cole v. Cole, 2007 WL 1411612 (D. Kan. May 10, 2007)

Plaintiff filed suit against defendant for alleged violations of the Fair Credit Reporting Act(“FCRA”). After a jury trial, the jury found that the plaintiff did not sustain any damages as a result of defendant’s conduct and that defendant did not willfully violate FCRA. Defendant filed a motion to recover attorney’s fees pursuant to FCRA and Fed. R. Civ. P. 68 based on his $5,000 offer of judgment that plaintiff refused to accept. The court held that defendant was not entitled to attorney’s fees under FCRA because he did not show that plaintiff filed an “unsuccessful pleading, motion, or other paper” in “bad faith or for purposes of harassment.” The court also held that defendant was not entitled to attorney’s fees under Fed. R. Civ. P. 68 because this rule only allows for the recovery of “costs” and attorney’s fees are not considered as “costs.”

[trueq]

Great case find.

This issue will depend on judge.

So caution should be exercised when receiving a Rule 68.   A judge could say costs are attorney's fees.

Not trying to scare anyone.   I agree "costs" should not be attorney's fees under Rule 68.

Just make sure you point this case out to a judge that thinks it does mean attorney's fees.

[eagle5166]

This case might also be useful from the 10th Circuit Court of Appeals:

http://openjurist.org/3/f3d/1398/united-states-court-of-appeals-tenth-circuit

[KFMAN]

How would a protective order be beneficial to me in a US District Lawsuit?  The Defendant's attorney wants the protective order but I really don't think it will help me other than maybe my SS #, because I don't have a bank account.  My financial records are not relevant to this lawsuit anyway, so I will object to any type of requests for that.  This was a lawsuit filed over a CA making FDCPA violations.
 
In a different lawsuit, another lawfirm posted an account # on Pacer and the court took the account # off Pacer stating it was restricted due to a violation of the court's privacy policy, so why would I need a protective order when the court has some protection in place already?  It appears to be more beneficial to the Defendant then myself.

[KFMAN]

Update:  I requested information in Discovery giving the CA consent to call me and the CA's reply in Discovery was "FDCPA gives them authorization to contact debtors.

WHAT???  A jury ought to enjoy the fact this CA has been in business over 30 years doesn't even know FDCPA laws.  Do I hear Willful?


1692c. Communication in connection with debt collection
(a) Communication with the consumer generally

Without the prior consent of the consumer given directly to the debt collector or the express permission of a court of competent jurisdiction, a debt collector may not communicate with a consumer in connection with the collection of any debt—
 
(1) at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer.

[kevinmanheim]

They are trying to lead you down a stray path.

Will you let them?

[KFMAN]

They are trying to lead you down a stray path.

Will you let them?

Should I file a Motion to Squash?  Do you think they will be able to lead the court or a Jury down one?  FDCPA gives them authorization to contact debtors.