Fallen v. Grep Sw., LLC
| Decision Date | 30 March 2017 |
| Docket Number | No. CIV 15–0146 JB/SCY,CIV 15–0146 JB/SCY |
| Citation | 247 F.Supp.3d 1165 |
| Parties | Kenth FALLEN and Laura Fallen, Plaintiffs, v. GREP SOUTHWEST, LLC; SCI Camino Real Fund, LLC, d/b/a Camino Real Apartments; National Credit Systems, Inc.; Insureco Agency & Insurance Services, Inc. d/b/a SureDeposit ; Equifax Information Services, LLC; Experian Information Solutions, Inc. and Transunion, LLC., Defendants. |
| Court | U.S. District Court — District of New Mexico |
Kristina Martinez, Coberly and Martinez, LLP, Santa Fe, New Mexico, Marc M. Lowry, Alicia C. Lopez, Rothstein Donatelli LLP, Albuquerque, New Mexico, Attorneys for the Plaintiffs.
Claud E. Vance, Vance, Chavez & Associates, Albuquerque, New Mexico, Attorneys for Defendants GREP Southwest, LLC, and SCI Camino Real Fund, LLC.
Charity Olson, Olson Law Group, Ann Arbor, Michigan Attorneys for Defendant National Credit Systems, Inc.
THIS MATTER comes before the Court on the Plaintiffs' Motion for Attorneys' Fees, filed March 16, 2016 (Doc. 104)("Motion"). The Court held a hearing on September 13, 2016. The primary issues are: (i) whether the Court should award the Plaintiffs, Kenth and Laura Fallen, reasonable attorneys' fees against Defendant GREP Southwest, LLC, and Defendant SCI Camino Real Fund, LLC d/b/a Camino Real Apartments ("Camino Real"); and (ii) whether the Court should award the Fallens reasonable attorneys' fees against Defendant National Credit Systems, Inc. ("National Credit"). The Court will grant in part and deny in part the Motion. The Court will not award the Fallens all the attorneys' fees that they request. The Court will, however, award the Fallens: (i) $17,427.28 in reasonable attorneys' fees against GREP Southwest; (ii) $17,427.28 in reasonable attorneys' fees against Camino Real; and (iii) $8,803.47 in reasonable attorneys' fees against National Credit.
The Court takes its recitation of the facts from the Plaintiffs' Second Amended Complaint for Damages and Declaratory and Injunctive Relief, filed September 22, 2015 (Doc. 48)("Second Amended Complaint"). The Plaintiffs, Kenth and Laura Fallen, are residents of Albuquerque, New Mexico. See Second Amended Complaint ¶ 1, at 2. On September 19, 2012, the Fallens entered into an agreement to rent an apartment at the Camino Real Apartments in Albuquerque, New Mexico, for a period of ten months and ten days, beginning September 21, 2012, and ending July 31, 2013. See Second Amended Complaint ¶ 12, at 4. The Fallens entered this rental agreement with Camino Real, which owns the Camino Real Apartments, and GREP Southwest, which manages the apartments. See Second Amended Complaint ¶ 12, at 4. Under the agreement's terms, the Fallens had the right to terminate the agreement with sixty days written notice. See Second Amended Complaint ¶ 12, at 4. The apartment had sewer problems and was uninhabitable: sewage had overflowed from the kitchen sink, spilling over the countertop and onto the floor. See Second Amended Complaint ¶¶ 17–23, at 4–5. Hence, on April 1, 2013, the Fallens gave the Camino Real manager, Teri Shaffer, notice of their intent to vacate the apartment. See Second Amended Complaint ¶¶ 25–30, at 5. On that day, Shaffer completed a "Notice of Intent to Vacate" form, designating May 31, 2013, as the move-out date, and the Fallens initialed the form. Second Amended Complaint ¶¶ 27–30, at 5. Later, on April 16, 2013, Shaffer completed another "Notice of Intent to Vacate" form, but this time without the Fallens' knowledge or cooperation. Second Amended Complaint ¶¶ 47–52, at 7–8. This form altered the Fallens' move-out date to June 16, 2013, and purported to obligate the Fallens for sixteen days of pro-rated rent for the month of June 2013. See Second Amended Complaint ¶¶ 47–50, at 7–8.
The Fallens vacated the apartment on May 24, 2013, and paid May's rent in full. See Second Amended Complaint ¶¶ 54–55, at 8. On June 19, 2013, Camino Real and GREP Southwest issued the Fallens a move-out statement, which billed the Fallens for $412.00 in unpaid rent for the period of June 1, 2013, to June 16, 2013. See Second Amended Complaint ¶ 59, at 9. This bill was based upon the April 16, 2013, "Notice of Intent to Vacate" form, which Shaffer completed without the Fallens' knowledge or cooperation. Second Amended Complaint ¶ 60, at 9. The Fallens refused to pay the $412.00 bill. See Second Amended Complaint ¶ 62, at 9.
On August 13, 2013, Camino Real and GREP Southwest opened a claim with Defendant Assurant Payment Services, Inc. d/b/a Assurant Solutions d/b/a SureDeposit ("SureDeposit"), a debt collector. See Second Amended Complaint ¶¶ 5, 64, at 2, 9. SureDeposit then assigned the debt to National Credit, a national debt collection agency. See Second Amended Complaint ¶¶ 4, 65, at 2, 9. National Credit contacted the Fallens and pursued collection of the $412.00 debt. See Second Amended Complaint ¶¶ 66–79, at 9–11. The Fallens contacted Camino Real, GREP Southwest, and National Credit, making them aware that it did not owe the $412.00 debt, because the April 6, 2013, "Notice of Intent to Vacate" form was operative, and the April 16, 2013, form was fraudulent. See Second Amended Complaint ¶¶ 81–85, at 11. Nevertheless, National Credit reported the debt to three national credit agencies—Equifax Information Services, LLC, Experian Information Solutions Inc., and TransUnion LLC—detrimentally impacting the Fallens' credit scores. See Second Amended Complaint ¶¶ 93–98, at 12–13. The Fallens, through counsel, sought to remedy the injury by contacting the three credit agencies, but they refused to adjust the Fallens' credit scores. See Second Amended Complaint ¶¶ 99–155, at 13–21.
On February 19, 2015, the Fallens, injured and deeply frustrated, filed suit in federal court. See Complaint for Damages and Declaratory and Injunctive Relief at 1, filed February 19, 2015 (Doc. 1)("Complaint"). In the Second Amended Complaint, the Fallens assert: (i) a claim against National Credit for violations of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. §§ 1681 – 1681x, see Second Amended Complaint ¶¶ 156–161, 189–202 at 21–22, 25–26; (ii) a claim against National Credit and SureDeposit for violations of the Fair Debt Collections Practices Act ("FDCPA"), 15 U.S.C. §§ 1692 – 1692p, Second Amended Complaint ¶¶ 162–166, at 22; (iii) a claim against GREP Southwest, Camino Real, SureDeposit, Equifax Information Services, LLC, Experian Information Solutions Inc., and TransUnion LLC for violations of the New Mexico Unfair Practices Act ("UPA"), N.M. Stat. Ann. §§ 57–12–1 to 57–12–26, Second Amended Complaint ¶¶ 167–71, at 22–23; (iv) a tortious-debt-collection claim against GREP Southwest, Camino Real, and SureDeposit, see Second Amended Complaint ¶¶ 172–76, at 23; (v) a breach-of-contract claim against GREP Southwest and Camino Real, Second Amended Complaint ¶¶ 177–82, at 23–24; (vi) a claim against GREP Southwest and Camino Real for violations of the New Mexico Uniform Owner-Resident Relations Act ("UORRA"), N.M. Stat. Ann. §§ 47–8–1 to 47–8–52, Second Amended Complaint ¶¶ 183–88, at 24–25; and (vii) a claim against Equifax Information Services, LLC, Experian Information Solutions Inc., and TransUnion LLC for violations of the FCRA, 15 U.S.C. §§ 1681 – 1681x, see Second Amended Complaint ¶¶ 189–202 at 25–26.
On October 22, 2015, National Credit made an offer of judgment in the amount of $4,001.00, plus reasonable attorneys' fees and costs. See Defendant National Credit Systems, Inc.'s Response to Plaintiffs' Motion for Attorney's Fees at 1, filed April 18, 2016 (Doc. 112)("National Credit Response"); National Credit Systems, Inc.'s Offer of Judgment at 1–2 (dated October 22, 2015), filed September 13, 2016 (Doc. 126)("National Credit Offer of Judgment"). The Fallens rejected this offer. See National Credit Response at 1. The litigation continued. See National Credit Response at 1.
On January 13, 2016, the Honorable Steven Yarbrough, United States Magistrate Judge for the United States District Court for the District of New Mexico, held a settlement conference at which the Fallens reached a settlement agreement with Camino Real, GREP Southwest, and National Credit on all issues except attorneys' fees. See Order at 1, filed January 15, 2016 (Doc. 90)("Settlement Order").1 GREP Southwest and Camino Real agreed to pay the Fallens $2,000.00 to settle the Fallens' claims against them. See Transcript of Rule 16 Settlement Conference at 3:8–10, taken January 13, 2016 (Doc. 129)("Settlement Conference Tr.")(Court). National Credit agreed to pay $1,000.00 to settle the Fallens' claims against it. See Settlement Conference Tr. at 10:20–22 (Court).
At the settlement conference, the Fallens and Camino Real, GREP Southwest, and National Credit agreed that the Court shall decide the issue of reasonable attorneys' fees. See Settlement Order at 1. In addition, the Fallens and National Credit agreed to cap any attorneys' fee award at a maximum of $16,500.00. See National Credit Response at 2, 4. Unlike National Credit, however, GREP Southwest and Camino Real and the Fallens did not reach an agreement regarding a maximum attorney-fee award. See Response to Plaintiffs' Motion for Attorney's Fees at 2, filed April 8, 2016 (Doc. 108) ("Camino Real Response"). The Fallens and GREP Southwest and Camino Real agreed that the Court's determination regarding attorneys' fees would be "binding," such that neither side would appeal the Court's decision. See Settlement Conference Tr. at 4:16–5:20 (Lowry, Vance, Court). Magistrate Judge Yarbrough instructed the parties to discuss the issue of attorneys' fees and directed the Fallens' counsel to file a motion with the Court if the parties were unable to resolve the amount of reasonable attorneys' fees. See Order at 1.
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