The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
This matter arises out of Plaintiff, Travis Bronco's ("Plaintiff") motion for attorney's fees and costs.*fn1 Defendant, Credit Colection Services, Inc., ("Defendant") opposes the motion. For the reasons set forth below, Plaintiff's motion is granted.
In August 2011, the Court granted Plaintiff summary judgment on her
claim that Defendant violated Section 1692c(b) of the Fair Debt
Collection Practices Act ("FDCPA") by leaving a debt collection
message at his parent's home that his mother overheard.*fn2
Where a court finds that a defendant has violated any
provision of the FDCPA, it has discretion to award up to $1,000 in
statutory damages. In calculating the appropriate amount of statutory
damages, the Court considers: "the frequency and persistence of
noncompliance by the debt collector, the nature of such noncompliance,
and the extend to which such noncompliance was intentional." 15 U.S.C.
§ 1692k(b) (1). After considering these factors, the Court awarded
Plaintiff the nominal amount of $1 in statutory damages, explaining:
[W]hile Defendant technically violated the FDCPA by improperly communicating with third persons, Defendant's conduct does not merit the full extent of statutory damages available. It is clear in this instance that, as set forth above, Defendant's conduct did not amount to an intent to harass or abuse. Defendant reasonably relied on the telephone number given it by its client in placing calls to that number in order to collect a legitimate debt. Moreover, the wrongful nature of the noncompliance is drastically mitigated by the fact that neither plaintiff, nor any other person who heard the improper messages, called Defendant to inform it that plaintiff was not the sole resident of the home. Based on the foregoing, the court, in its discretion, awards plaintiff $1 in statutory damages.
(Order on Plaintiff's Mot. for Summ. J., filed Aug. 23, 2011, [ECF No. 34], at 26:7-20.)
Moreover, in denying Plaintiff the emotional distress damages he sought, the Court expounded:
At most, plaintiff alleges conduct that may have inconvenienced plaintiff, if that; significantly, the conduct occurred in only five voice mail messages which were not rude, misleading or abusive. Such conduct is not actionable as an IIED claim.. . .
[T]he only evidence of plaintiff's emotional distress is his own testimony, and this testimony demonstrates that his alleged emotional distress was transitory in nature and of the type not recoverable under the FDCPA.
(Id. at 23:20-24;26:3-6.)
The FDCPA contains a fee-shifting provision permitting any Plaintiff to recover attorney's fees against a debt collector that violated the Act. Specifically, 15 U.S.C. § 1692k(a) (3) provides that "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 the costs of the action, together with reasonable attorney's fee as determined by the court." (emphasis added).
Similar to other fee-shifting statutes, district "[c]courts have discretion in calculating reasonable attorney's fees under this statute, and § 1692k(a) (3) authorizes courts to award attorney's fees to the defendant if a plaintiff's suit 'was brought in bad faith and for the purpose of harassment.'"
Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 130 S. Ct. 1605, 1621 (2010) (emphasis added). However, the award of at least some modicum of attorney's fees is mandatory under the FDCPA when the defendant is found to have violated the act because "congress chose a 'private attorney general' approach to assume enforcement of the FDCPA." Camacho v. Bridgeport Financial, Inc., ...