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Sallie A. Durham, An Individual On Behalf v. Continental Central Credit

December 27, 2011

SALLIE A. DURHAM, AN INDIVIDUAL ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED,
PLAINTIFF,
v.
CONTINENTAL CENTRAL CREDIT, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR ATTORNEY'S FEES AND EXPENSES

Plaintiff has filed a motion for an award of attorney's fees and expenses. For the reasons set forth below, Plaintiff's motion is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

This action arises out of attempts by Continental Central Credit, Inc. ("CCC") to collect amounts assessed against Plaintiff by San Clemente Cove Vacation Owners Association.

In her original complaint, filed on September 7, 2007, Plaintiff, suing on behalf of herself and a class of similarly situated individuals, asserted claims for violation of the Federal Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692, et seq., and California's Robbins-Rosenthal Fair Debt Collect Practices Act ("RFDCPA"), Cal. Civil Code §§ 1788.17, 1788.13(e). Plaintiff's claims were primarily based on Defendants' attempts to collect an allegedly unlawful collection fee.

In her First Amended Complaint ("FAC"), filed on November 30, 2007, Plaintiff added allegations that CCC violated the FDCPA -- 15 U.S.C. § 1692e(10), 1692g -- by sending, less than 30 days after sending an initial notice of debt, a second collection notice that overshadowed the disclosure of rights in the first notice.

On January 2, 2008, Plaintiff requested dismissal of defendant Vacation Resorts International.

In an order filed on March 20, 2008, the Court denied Defendants' motion to dismiss under Fed. R. Civ. P. 12(b)(6).

In an order filed on October 20, 2009, the Court granted summary judgment in favor of Defendants on Plaintiff's claim that Defendants violated the FDCPA by attempting to collect a collection fee equal to 40% of the outstanding principal. The Court held that Plaintiff had failed to establish that such collection fee was prohibited by law. The Court also granted summary judgment in favor of Defendants on Plaintiff's RFDCPA claim because the underlying debt was not owed in connection with a "consumer credit transaction," as required by Cal. Civil Code § 1788.2(f). The Court denied Defendants' motion for summary judgment with respect to Plaintiff's claim that CCC violated the FDCPA by sending Plaintiff a letter in the form of Exhibit B to the FAC ("Exhibit B letter") within 30 days of sending Plaintiff a letter in the form of Exhibit A to the FAC ("Exhibit A letter"). The Court held that the Exhibit B letter, which demanded immediate payment, overshadowed the Exhibit A letter's notice to Plaintiff of her right to dispute the debt within 30 days after receipt of the letter. The Court further held that CCC was not entitled to summary judgment based on its bona fide error defense under 15 U.S.C. § 1692k(c).

In its October 20, 2009 order, the Court also denied without prejudice Plaintiff's motion for class certification with respect to the "Overshadowing or Contradicting Class." The Court explained that Plaintiff had failed to satisfy her burden of establishing that the class was so numerous that joinder of all members was impracticable.

In an order filed on July 14, 2010, the Court granted Plaintiff's second motion for class certification. The Court certified the "Overshadowing or Contradicting Class" under Fed. R. Civ. P. 23(b)(3).

On September 7, 2010, Plaintiff filed a motion for summary judgment on her remaining FDCPA claim. The Court never ruled upon the motion due to a settlement between the parties.

On October 12, 2010, the parties entered into a Class Action Settlement Agreement. In an order filed on June 2, 2011, the Court granted the parties' joint motion for approval of class action settlement. Under the terms of the settlement, CCC is obligated to pay Ms. Durham $1,000 in statutory damages plus an incentive award of $3,000. CCC must also pay to the Class Members who have not excluded themselves from the Class a pro-rata share of a settlement fund in the amount of $17,750. The amount of the settlement fund equals the maximum recovery under 15 U.S.C. ยง 1692k(a)(2)(B) (the lesser of ...


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