Free Motion for Default Judgment - District Court of California - California

Case 5:08-cv-00910-RMW

Document 17

Filed 05/28/2008

Page 1 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Fred W. Schwinn (SBN 225575) CONSUMER LAW CENTER, INC. 12 South First Street, Suite 1014 San Jose, California 95113-2418 Telephone Number: (408) 294-6100 Facsimile Number: (408) 294-6190 Email Address: [email protected] Attorney for Plaintiff BETTY JEAN NAPIER

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION BETTY JEAN NAPIER, Plaintiff, v. TITAN MANAGEMENT SERVICES, LLC, a Georgia limited liability company, and FREDERICK ALLEN HOWARD, individually an in his official capacity, Defendants. Courtroom: Place: NOTICE OF MOTION AND MOTION WITH MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFAULT JUDGMENT Date: Time: Judge: July 11, 2008 9:00 a.m. Honorable Ronald M. Whyte 6, 4th Floor 280 South First Street San Jose, California Case No. C08-00910-RMW-RS

NOTICE OF MOTION PLEASE TAKE NOTICE that on July 11, 2008, at 9:00 a.m., or as soon thereafter as the matter may be heard in Courtroom 6 of the above-titled Court, located at the Federal Courthouse, 280 South First Street, San Jose, California, Plaintiff will move the Court for a default judgment as set forth herein. The motion will be made pursuant to rule 55(b)(2) of the Federal Rules of Civil Procedure and the applicable civil local rules, on the ground that Defendants failed to plead or otherwise defend this action within the time prescribed by the Federal Rules of Civil Procedure. The motion is based on this Notice of Motion, the Motion with Memorandum of Points and Authorities, Complaint, the Declaration of Betty Jean Napier, the Declaration of Fred W. Schwinn, the -1NOTICE OF MOTION AND MEMORANDUM Case No. C08-00910-RMW-RS

Case 5:08-cv-00910-RMW

Document 17

Filed 05/28/2008

Page 2 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

documents attached thereto, and such evidence as may be presented at the hearing. Please note that the Plaintiff and her counsel of record request that the Court determine this matter based on the paperwork herein (i.e., submitted on the papers) unless the Court requests oral argument or if this motion is opposed.

MOTION WITH MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFAULT JUDGMENT INTRODUCTION This is a Motion for Default Judgment against Defendants, TITAN MANAGEMENT SERVICES, LLC, and FREDERICK ALLEN HOWARD. This action was brought to redress Defendants' false, misleading and abusive attempts to collect a debt. The Defendants violated the Federal Fair Debt Collection Practices Act (FDCPA), and the California Rosenthal Fair Debt Collection Practices Act (RFDCPA), both of which prohibit debt collectors from engaging in unfair and deceptive practices. Plaintiff seeks an award of $12,000.00 in statutory damages and penalties together with $4,974.21 in attorney's fees and costs. PROCEDURAL HISTORY Defendant, TITAN MANAGEMENT SERVICES, LLC, was served with a Summons and Complaint in this case on February 19, 2008.1 Defendant, FREDERICK ALLEN HOWARD, was served with a Summons and Complaint in this case on February 27, 2008.2 The Defendants' default was entered on April 25, 2008.3 Upon default, the well-pleaded allegations of the complaint relating to liability are taken as true.4 After a default is entered, the Court's attention is focused on issues relating to the quantity of damages, as opposed to issues of liability.5 Here, however, the issues may
1

24 25 26 27 28
2

Doc. 4. Doc. 5. Doc. 12 and 13. Televideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987). Black v. Lane, 22 F.3d 1395 (7th Cir 1994). -2Case No. C08-00910-RMW-RS

3

4

5

NOTICE OF MOTION AND MEMORANDUM

Case 5:08-cv-00910-RMW

Document 17

Filed 05/28/2008

Page 3 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

be inextricable. Plaintiff seeks statutory damages under the Federal Fair Debt Collection Practices Act (FDCPA) and the California Rosenthal Fair Debt Collection Practices Act (RFDCPA). In determining the amount of damages to award under the FDCPA the Court is to consider the nature of the noncompliance, as well as the frequency and persistence of the noncompliance.6 For this reason, the facts relating to Defendant's noncompliance with the law are discussed in some detail below. STATEMENT OF FACTS Plaintiff, BETTY JEAN NAPIER, is a "consumer" as defined by 15 U.S.C. § 1692(a)(3) and a "debtor" as defined by California Civil Code § 1788.2 and resides in Santa Clara County.7 Defendant, TITAN MANAGEMENT SERVICES, LLC., is a "debt collector" as defined by 15 U.S.C. § 1692a(6) and Civil Code § 1788.2.8 Defendant, FREDERICK ALLEN HOWARD, is a "debt collector" as defined by 15 U.S.C. § 1692a(6) and Civil Code § 1788.2.9 On a date or dates unknown to the Plaintiff, Plaintiff incurred a financial obligation (hereinafter "the debt").10 The debt was incurred primarily for personal, family or household purposes and is therefore a "debt" as that term is defined by 15 U.S.C. § 1692a(5) and a "consumer debt" as that term is defined by Cal. Civil Code § 1788.2(f).11 Sometime thereafter on a date unknown to the Plaintiff, the debt was consigned, placed or otherwise transferred to Defendants for collection from Plaintiff.12 Defendants knew or should have known that their conduct was directed

6

15 U.S.C. § 1692k(b)(1). Complaint (Doc. 1) ¶ 6. Complaint (Doc. 1) ¶ 7. Complaint (Doc. 1) ¶ 8.

7

8

9

Complaint (Doc. 1) ¶ 10; Declaration of Betty Jean Napier in Support of Motion for Default Judgment (hereinafter "Napier Declaration) ¶3.
11

10

Complaint (Doc. 1) ¶ 10; Napier Declaration ¶3. Complaint (Doc. 1) ¶ 11. -3Case No. C08-00910-RMW-RS

12

NOTICE OF MOTION AND MEMORANDUM

Case 5:08-cv-00910-RMW

Document 17

Filed 05/28/2008

Page 4 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

towards a senior citizen.13 On or about February 17, 2007, Defendants mailed Plaintiff a collection letter in an attempt to collect the debt.14 A true and correct copy of the February 17, 2007, collection letter is attached to the Complaint and identified as Exhibit "1."15 The collection letter (Exhibit "1") was Defendants' first written notice initially addressed to Plaintiff in connection with collecting the debt.16 On or about March 7, 2007, Plaintiff mailed a letter to Defendants which stated: "please be advised that I dispute this debt and refuse to pay."17 A true and correct copy of Plaintiff's March 7, 2007, letter is attached to the Complaint and identified as Exhibit "2."18 Defendants received Plaintiff's letter disputing the debt and refusing to pay the debt on or about March 12, 2007.19 A true and correct copy of the USPS Tracking Report and Certified Mail Return Receipt evidencing Defendants' receipt of Plaintiff's letter disputing the debt and refusing to pay the debt is attached to the Complaint and identified as Exhibit "3."20 Thereafter, Defendants sent a second collection letter to Plaintiff on or about May 9, 2007.21 A true and correct copy of the May 9, 2007, collection letter is attached to the Complaint and identified as Exhibit "4."22 Defendants did not validate the debt before sending the second collection

13

Complaint (Doc. 1) ¶ 18; Napier Declaration ¶ 4. Complaint (Doc. 1) ¶¶ 12, 13, 14, 15, and 16; Napier Declaration ¶¶ 5 and 7. Complaint (Doc. 1) ¶¶ 12, 13 and 14; Napier Declaration ¶¶ 6 and 7. Complaint (Doc. 1) ¶ 17; Napier Declaration ¶ 8. Complaint (Doc. 1) ¶ 19; Napier Declaration ¶¶ 9 and 11. Complaint (Doc. 1) ¶ 20; Napier Declaration ¶¶ 10 and 11. Complaint (Doc. 1) ¶ 21; Napier Declaration ¶ 12. Complaint (Doc. 1) ¶ 22,; Napier Declaration ¶¶ 12 and 13. Complaint (Doc. 1) ¶¶ 25, 26, and 27; Napier Declaration ¶¶ 14 and 16. Complaint (Doc. 1) ¶¶ 25, 26, and 27; Napier Declaration ¶¶ 15 and 16. -4Case No. C08-00910-RMW-RS

14

15

16

22
17

23
18

24 25 26 27 28
19

20

21

22

NOTICE OF MOTION AND MEMORANDUM

Case 5:08-cv-00910-RMW

Document 17

Filed 05/28/2008

Page 5 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

letter.23 Defendants sent a third collection letter to Plaintiff on or about June 15, 2007.24 A true and correct copy of the June 15, 2007 collection letter is attached to the Complaint and identified as Exhibit "5."25 Thereafter, on or about June 25, 2007, Plaintiff sent Defendants a second letter which stated: "please be advised that I dispute this debt and refuse to pay."26 A true and accurate copy of Plaintiff's second letter disputing the debt and refusing to pay the debt is attached to the Complaint and identified as Exhibit "6."27 Defendants received Plaintiff's second letter disputing the debt and refusing to pay the debt on or about June 29, 2007.28 A true and accurate copy of the USPS Tracking Report and Certified Mail Return Receipt evidencing Defendants' receipt of Plaintiff's letter disputing the debt and refusing to pay the debt is attached to the Complaint and identified as Exhibit "7."29 After receiving Plaintiff's second letter notifying Defendants of her refusal to pay the debt, Defendants continued to communicate with Plaintiff in an attempt to collect the debt by sending a fourth collection letter on or about August 17, 2007.30 A true and accurate copy of Defendants' August 17, 2007, collection letter is attached to the Complaint and identified as Exhibit "8."31 Therefore, Defendants violated the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692c(c) and 1692g(b) by: continuing to communicate with Plaintiff in an attempt to collect the debt

23

Complaint (Doc. 1) ¶ 23; Napier Declaration ¶ 17. Complaint (Doc. 1) ¶¶ 30, 31, and 32; Napier Declaration ¶¶ 18 and 20. Complaint (Doc. 1) ¶¶ 30, 31, and 32; Napier Declaration ¶¶ 19 and 20. Complaint (Doc. 1) ¶ 35; Napier Declaration ¶¶ 21 and 23. Complaint (Doc. 1) ¶¶ 30, 31, and 32; Napier Declaration ¶¶ 22 and 23. Complaint (Doc. 1) ¶ 37; Napier Declaration ¶¶ 24 and 25. Complaint (Doc. 1) ¶¶ 37 and 38; Napier Declaration ¶ 25. Complaint (Doc. 1) ¶¶ 39, 40, and 42; Napier Declaration ¶¶ 26 and 28. Complaint (Doc. 1) ¶¶ 40, and 41; Napier Declaration ¶¶ 27 and 28. -5Case No. C08-00910-RMW-RS

24

25

22
26

23
27

24 25 26 27 28
28

29

30

31

NOTICE OF MOTION AND MEMORANDUM

Case 5:08-cv-00910-RMW

Document 17

Filed 05/28/2008

Page 6 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

after receiving a written notification that Plaintiff refused to pay the debt being collected; and by continuing collection efforts against Plaintiff after receiving a written notification within the thirtyday validation period from Plaintiff disputing the debt being collected in its entirety without first obtaining a verification of the debt and mailing a copy of such verification to Plaintiff. Additionally, Defendants violated the Rosenthal Fair Debt Collection Practices Act, Cal. Civil Code § 1788.17, which incorporates 11 U.S.C. § 1692b through § 1692j (a violation under 1692b-1692j is thus a violation of Civil Code § 1788.17). A violation of Civil Code § 1788.17 subjects debt collectors to the remedies under 15 U.S.C. § 1692k.32 PLAINTIFF IS ENTITLED TO AN AWARD OF DAMAGES A. PLAINTIFF IS ENTITLED TO $1,000 IN STATUTORY DAMAGES PURSUANT TO 15 U.S.C. § 1692K. The FDCPA states that any debt collector who fails to comply with any provision is liable to such person in an amount equal to his/her actual damages, and in the case of any action by an individual, such additional damages as the court may allow, but not exceeding $1,000.33 The act also provides that: In determining the amount of liability in any action under subsection (a), the court shall consider, among other relevant factors...the frequency and persistence of noncompliance by the debt collector, and the extent to which such noncompliance was intentional.34 Here Defendants violated numerous sections of the FDCPA (as stated herein). Thus, the Plaintiff is entitled to the full $1,000 statutory award under the FDCPA. 1. Defendants Violated 15 U.S.C. § 1692c(c) by Communicating with Plaintiff in an Attempt to Collect the Debt after Receiving a Written Notification that Plaintiff Refused to Pay the Debt.

Defendants violated 15 U.S.C. § 1692c(c) by communicating with Plaintiff in an attempt to collect the debt after receiving a written notification that Plaintiff refused to pay the debt.

32

Abels v. JBC, 227 F.R.D. 541, 548 (N.D. Cal. 2005). 15 U.S.C. § 1692k(a)(2)(A). 15 U.S.C. § 1692k(b)(1). -6Case No. C08-00910-RMW-RS

33

34

NOTICE OF MOTION AND MEMORANDUM

Case 5:08-cv-00910-RMW

Document 17

Filed 05/28/2008

Page 7 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14

15 U.S.C. § 1692c(c) states "If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt . . . the debt collector shall not communicate further with the consumer with respect to such debt. . ." In this case, Defendants sent Plaintiff three collection letters to Plaintiff after receiving notification that Plaintiff refused to pay the debt. As explained above, Plaintiff sent a letter which stated: "please be advised that I dispute this debt and refuse to pay," on March 7, 2007.35 Thereafter, Defendants sent Plaintiff two collection letters, one on May 9, 2007,36 and another on June 15, 2007.37 Plaintiff sent a second letter which stated: "please be advised that I dispute this debt and refuse to pay," on June 25, 2007.38 Despite receiving two letters that said Plaintiff refused to pay the debt, Defendants sent another collection letter on August 17, 2007.39 Defendants actions state a violation of 15 U.S.C. § 1692c(c). 2. Defendants Violated 15 U.S.C. § 1692g(b) by Continuing Collection Efforts Against Plaintiff Without First Obtaining a Verification of the Debt and Mailing it to Plaintiff.

Defendants violated 15 U.S.C. § 1692g(b) continuing their collection efforts against Plaintiff 15 after receiving a written notification within the thirty-day validation period from Plaintiff disputing 16 the debt being collected in its entirety without first obtaining a verification of the debt and mailing 17 a copy of such verification to Plaintiff. 18 15 U.S.C. § 1692g(b) states: 19 20 21 22 23
35

If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed . . . the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment . . . and a copy of such verification or judgment . . . is mailed to the consumer by the debt collector.

24 25 26 27 28
36

Complaint (Doc. 1) ¶ 19; Napier Declaration ¶¶ 9 and 11. Complaint (Doc. 1) ¶¶ 25, 26, and 27; Napier Declaration ¶¶ 14 and 16. Complaint (Doc. 1) ¶¶ 30, 31, and 32; Napier Declaration ¶¶ 18 and 20. Complaint (Doc. 1) ¶ 35; Napier Declaration ¶¶ 21 and 28. Complaint (Doc. 1) ¶¶ 39, 40, and 42; Napier Declaration ¶¶ 26 and 28. -7Case No. C08-00910-RMW-RS

37

38

39

NOTICE OF MOTION AND MEMORANDUM

Case 5:08-cv-00910-RMW

Document 17

Filed 05/28/2008

Page 8 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

In this case, Defendants sent Plaintiff their first collection letter on February 17, 2007.40 Thereafter, Plaintiff sent Defendants a letter which stated: "please be advised that I dispute this debt and refuse to pay," on March 7, 2007.41 Plaintiff's March 7, 2007, letter disputing the debt was sent within 30 days of receiving Defendant's February 17, 2007 collection letter. Despite Defendants' statutory obligation to validate the debt after receiving notice of Plaintiff's dispute, Defendants did not validate the debt before sending another collection letter on May 9, 2007.42 Defendants' conduct states a violation of 15 U.S.C. § 1692g(b). 3. This Court Should Award Plaintiff the Maximum Statutory Damage Amount of $1,000 under the FDCPA.

The maximum statutory damage award available under the Federal FDCPA is a modest $1,000. Courts have therefore awarded the maximum amount even when the violations found were less numerous and egregious than those herein. For example, in Riviera v. M.A.B.,43 the court awarded the maximum $1,000 because the validation notice appeared on the back of the letter, in relatively small print, with no reference to it on the front of the letter. Thus, even though the notice was accurate, the court determined a $1,000 award was appropriate. Furthermore, in Tolentino v. Friedman,44 the Seventh Circuit upheld the maximum statutory award of $1,000 despite finding that only one provision of the FDCPA had been proven. In that case the debt collector had included a disclosure required 15 U.S.C. § 1692e(11) in its initial notice, but had failed to include it in a subsequent notice. Herein there are two violations of the federal FDCPA. Thus, the violations herein are more numerous and meaningful than in those cases, and therefore the Court should award the maximum amount of statutory damages under 15 U.S.C. § 1692k(a)(2)(A), which is $1,000. ///
40

24 25 26 27 28
41

Complaint (Doc. 1) ¶¶ 12, 13, 14, 15, 16 and 17; Napier Declaration ¶¶ 5, 7 and 8. Complaint (Doc. 1) ¶ 19; Napier Declaration ¶¶ 9 and 11. Complaint (Doc. 1) ¶¶ 25, 26, and 27; Napier Declaration ¶ 17. 682 F. Supp. 174 (W.D.N.Y. 1988). 46 F.3d 645 (7th Cir. 1995). -8Case No. C08-00910-RMW-RS

42

43

44

NOTICE OF MOTION AND MEMORANDUM

Case 5:08-cv-00910-RMW

Document 17

Filed 05/28/2008

Page 9 of 14

1 2 3 4 5 6 7 8 9 10 11

B.

PLAINTIFF SHOULD BE AWARDED $1,000 UNDER CAL. CIVIL CODE § 1788.30(b). The Cal. Civil Code § 1788.30 states that any debt collector who fails to comply with any

provision is liable to such debtor in an amount equal to his/her actual damages, and in the case of a debt collector who willfully and knowingly violates the RFDCPA, the Court may award a penalty in an amount not less than $100 nor greater than $1,000. Cal. Civil Code § 1788.30(b). In this case Defendant has violated Cal. Civil Code § 1788.17 which is remedied by the statutory penalty provisions of Cal. Civil Code § 1788.30. Thus, the Court should award Plaintiff the full $1,000 statutory award under Cal. Civil Code § 1788.30. C. PLAINTIFF SHOULD BE AWARDED $1,000 IN STATUTORY DAMAGES PURSUANT TO CAL. CIVIL CODE § 1788.17. Cal. Civil Code § 1788.17 provides that:

12 13 14 15 16 This Court has held that a violation of the FDCPA is also a violation of Cal. Civil Code § 17 18 19 20 21 22 23 24 25 26 27 28
45

Notwithstanding any other provision of this title, every debt collector collecting or attempting to collect a consumer debt shall comply with the provisions of Sections 1692b to 1692j, inclusive, of, and shall be subject to the remedies in Section 1692k of Title 15 of the United States Code. However, subsection (11) of Section 1692e and Section 1692g shall not apply to any person specified in paragraphs (A) and (B) of subsection (6) of Section1692a of Title 15 of the United States Code or that person's principal.45

1788.17.46 The monetary remedy for a violation of Cal. Civil Code § 1788.17 is the same amount as the remedy provided under 15 U.S.C. § 1692k--$1,000.47 Therefore, Plaintiff is entitled to $1,000 damages pursuant to Cal. Civil Code § 1788.17.48

Cal. Civil Code § 1788.17.

Alkan v. Citimortgage, Inc., 336 F. Supp. 2d 1061, 1065 (N.D. Cal. 2004), and Daniel Edstrom v. All Services and Processing, 2005 U.S. Dist. LEXIS 2773 (N.D. Cal. February 22, 2005). Abels v. JBC, 227 F.R.D. 541, 548 (N.D. Cal. 2005) ("A strict reading of Civil Code 1788.17 clearly paves way for CA FDCPA violators to be subjected to the same remedies articulated in 15 U.S.C. 1692k.") It is also important to note that, in the paragraph quoted above, the California Legislature specifically carved out requirements under § 1692e(11) and § 1692g, which are certain notice requirements traditional debt collectors (collecting debts on behalf of another) must comply with, but retained an exemption to such notice requirements for original creditors (collecting debts on -9NOTICE OF MOTION AND MEMORANDUM Case No. C08-00910-RMW-RS
48 47

46

Case 5:08-cv-00910-RMW

Document 17

Filed 05/28/2008

Page 10 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

D.

PLAINTIFF SHOULD BE AWARDED TREBLE DAMAGES PURSUANT TO CAL. CIVIL CODE § 3345(b). Cal. Civil Code § 3345(b) provides that: (b) Whenever a trier of fact is authorized by a statute to impose either a fine, or a civil penalty or other penalty, or any other remedy the purpose or effect of which is to punish or deter, and the amount of the fine, penalty, or other remedy is subject to the trier of fact's discretion, the trier of fact shall consider all of the following factors, in addition to other appropriate factors, in determining the amount of fine, civil penalty or other penalty, or other remedy to impose. Whenever the trier of fact makes an affirmative finding in regard to one or more of the following factors, it may impose a fine, civil penalty or other penalty, or other remedy in an amount up to three times greater than authorized by the statute, or, where the statute does not authorize a specific amount, up to three times greater than the amount the trier of fact would impose in the absence of that affirmative finding: (1) Whether the defendant knew or should have known that his or her conduct was directed to one or more senior citizens or disabled persons. (2) Whether the defendant's conduct caused one or more senior citizens or disabled persons to suffer: loss or encumbrance of a primary residence, principal employment, or source of income; substantial loss of property set aside for retirement, or for personal or family care and maintenance; or substantial loss of payments received under a pension or retirement plan or a government benefits program, or assets essential to the health or welfare of the senior citizen or disabled person. (3) Whether one or more senior citizens or disabled persons are substantially more vulnerable than other members of the public to the defendant's conduct because of age, poor health or infirmity, impaired understanding, restricted mobility, or disability, and actually suffered substantial physical, emotional, or economic damage resulting from the defendant's conduct. In this case, Plaintiff is a senior citizen.49 Defendants knew or should have known that their

unlawful collection activities were directed at a senior citizen.50 As such, the Court should award Plaintiff an amount that is three times the statutory damages and civil penalties under the FDCPA

their own behalf). But, at the same time the legislature left in the entire remedial scheme of 15 U.S.C. § 1692k, including the $1,000 statutory damage remedy. Had the California Legislature wanted to carve out the $1,000 statutory remedy from Cal. Civil Code § 1788.17 they certainly knew how to do so, but they chose not to. Thus, they intended to provide consumers a remedy separate and in addition to the remedy afforded under Cal. Civil Code § 1788.30 and 15 U.S.C. § 1692k.
49

Complaint (Doc. 1) ¶ 6; Napier Declaration ¶ 4. Complaint (Doc. 1) ¶ 18. - 10 Case No. C08-00910-RMW-RS

50

NOTICE OF MOTION AND MEMORANDUM

Case 5:08-cv-00910-RMW

Document 17

Filed 05/28/2008

Page 11 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

and RFDCPA, pursuant to Cal. Civil Code § 3345(b). E. BOTH CONGRESS AND THE CALIFORNIA LEGISLATURE HAVE EXPRESSED THEIR INTENT THAT THE REMEDIES TO VIOLATIONS OF THE FDCPA BE CUMULATIVE Cal. Civil Code § 1788.32 states that: The remedies provided herein are intended to be cumulative and are in addition to any other procedures, rights, or remedies under any other provision of law. Thus, a violation of the federal statute can lead to damages under the federal FDCPA and a violation of the California statute leads to damages under the RFDCPA.51 Indeed, the FDCPA expressly states: [t]his subchapter does not annul, alter, or affect, or exempt any person subject to the provisions of this subchapter from complying with the law of any State with respect to debt collection practices, except to the extent that those laws are in consistent with any provision of this subchapter, and then only to the extent of the inconsistency.52 Moreover, courts, both within and outside the Ninth Circuit, have allowed statutory damages under both federal and state consumer protection statutes.53 Thus, this Court should not be reluctant to assess the maximum possible statutory damages under both federal and state law. As this Court has noted, Cal. Civil Code § 1788 was amended to expand the remedies of the RFDCPA, including an expansion of the statutory damages available under the state law.54 Additionally, this Court has concluded, rather than drafting new language to the RFDCPA,

Indeed, 15 U.S.C. § 1692n states that the federal law does not exempt or affect any person from complying with the law of any State with respect to debt collection practices, unless those laws are inconsistent with the federal FDCPA, and then only to the extent of the inconsistency.
52

51

24
53

15 U.S.C. § 1692n.

25 26 27 28

Sakuma v. First National Credit Bureau, 1989 U.S. DIST. LEXIS 19120 (D. HI. November 15, 1989), Mann v. Acclaim, 348 F. Supp. 2d 923 (S.D. OH. 2004), and Chapman v. ACB Business Services, Inc., 1997 U.S. Dist. LEXIS 23743 (S.D. W.V. February 13, 1997). Abels v. JBC, 227 F.R.D. 541, 548 (N.D. Cal. 2005) (The mandatory language in the amendment--" . . . shall be subject to the remedies in Section 1692k" leaves little doubt as to the intent of the legislature to broaden the remedies for RFDCPA.) - 11 NOTICE OF MOTION AND MEMORANDUM Case No. C08-00910-RMW-RS
54

Case 5:08-cv-00910-RMW

Document 17

Filed 05/28/2008

Page 12 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

the legislature simply incorporated entire sections by reference.55 Indeed, this Court has stated "California simply incorporated by reference the text of certain federal provisions into the CFDCPA, rather than copying them verbatim into the California code. Any resulting liability, however, remains a state claim."56 In a separate case, this Court then went on to hold a violation of 15 U.S.C. § 1692g was also a violation of Cal. Civil Code § 1788.17.57 Thus, by incorporating 15 U.S.C. § 1692k by reference (and its statutory damages of $1,000), the California legislature chose to make the additional $1,000 available, as a matter of state law, when it enacted Cal. Civil Code § 1788.17. F. PLAINTIFF HAS A STATUTORY RIGHT TO ATTORNEY'S FEES Both the federal FDCPA and California RFDCPA direct a court to award attorney's fees to a prevailing consumer.58 A number of cases decided under 15 U.S.C. § 1692k have held that an award of attorney fees and costs is required if the plaintiff prevails.59 1. Computation of Reasonable Attorney's Fees

The accepted method of calculating attorney's fees for FDCPA cases is the lodestar method.60 Under the lodestar method, the trial court determines the number of hours reasonably

55

17 18 19 20
58 56

Alkan v. Citimortgage, Inc., 336 F. Supp. 2d 1061, 1065 (N.D. Cal. 2004). Id.

Edstrom v. A.S.A.P. Collection Services, 2005 U.S. Dist. LEXIS 2773, *15 (N.D. Cal. February 22, 2005). 15 U.S.C. § 1692k(a)(3) & Cal. Civil Code § 1788.30(c).

57

21
59

22 23 24 25 26 27 28

See, e.g. Zagorski v. Midwest Billing Services, Inc., 178 F.3d 116 (7th Cir. 1997) (holding it was an abuse of discretion not to award attorney's fees following a stipulated judgment in the amount of $100; and directing the court to award fees sufficient to compensate the attorney for the time spent on the case in order to encourage enforcement of the FDCPA); Pipiles v. Credit Bureau, Inc., 886 F.2d 22 (2d Cir. 1989) (directing trial court to award fees on remand despite the lack of actual or statutory damages because Plaintiff had demonstrated that Defendant violated the FDCPA); Perez v. Perkiss, 742 F.Supp. 883 (D.Del. 1990) (awarding Plaintiffs' legal services attorneys $10,110 after a half-day jury trial in which Plaintiff was awarded $1,200 in damages). Cancio v. Financial Credit Network, Inc., 2005 U.S. Dist. LEXIS 13626, *2 (N.D. CA July 6, 2005) citing, Jordan v. Multnomah County, 815 F.2d 1258, 1264 (9th Cir. 1987); Rosenfeld v. S. Pac. Co., 519 F.2d 527, 530 (9th Cir. 1975). - 12 NOTICE OF MOTION AND MEMORANDUM Case No. C08-00910-RMW-RS
60

Case 5:08-cv-00910-RMW

Document 17

Filed 05/28/2008

Page 13 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

spent by counsel on the case and the reasonable hourly compensation for each attorney.61 Multiplying the hours reasonably worked by the reasonable hourly rate produces a figure known as the lodestar. 2. The Number of Hours Claimed by Plaintiff's Attorney is Reasonable

The initial step in computing the lodestar amount is calculating the reasonable hours that counsel worked on the case. Where a Plaintiff has prevailed, her attorneys should recover a fully compensatory fee. A full compensatory fee will encompass all hours reasonably spent on the matter.62 The reasonable hours will generally include all time spent on pre-trial matters, settlement negotiation, discovery, litigation tactics and the trial itself.63 In this case, the Plaintiff seeks compensation for a total of 14.8 hours which her advocates devoted to this case to date. 3. The Hourly Rates Claimed By Plaintiff's Attorney Is Reasonable

The second step in calculating the lodestar amount is determining a reasonable hourly rate. When determining whether the rate is reasonable, courts consider an attorney's skill, experience and expertise; the nature of the work performed; the attorney's customary billing rate; and the prevailing market rates charged by attorneys of similar skill and experience for comparable services in the community.64 The rates charged by counsel in this case are more than reasonable in light of the skill, experience and expertise, and the prevailing market rates charged by attorneys and advocates of similar skill and experience. 4. Lodestar Amount

The final step in calculating the fee portion of the lodestar amount is multiplying the hours
61

24
62

Serrano v. Priest, 20 Cal. 3d 25, 48-49 (1997) (Serrano III).

25 26 27 28

Serrano v. Unruh, 32 Cal. 3d 621, 633 (1982) (Serrano IV); Sundance Municipal Court, 192 Cal. App. 3d 268, 273-274 (1982). Stokus v. March, 217 Cal. App. 3d 647, 656 (1990) (compensation for pre-trial legal services include issue evaluation, discovery, trial preparation, and preparation of trial memorandum).
64 63

Serrano IV, supra, 32 Cal. 3d at 643. - 13 Case No. C08-00910-RMW-RS

NOTICE OF MOTION AND MEMORANDUM

Case 5:08-cv-00910-RMW

Document 17

Filed 05/28/2008

Page 14 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

reasonably worked by the reasonably hourly rate. As demonstrated by Declaration of Fred W. Schwinn and the attached time records, Plaintiff's attorney's office has expended 14.8 hours, and $534.21 in costs, in the prosecution of this matter, and that they should be awarded $4,974.21 for that time and expense. CONCLUSION The purpose of statutory penalties is to deter the kind of unlawful conduct which occurred in this case. As explained in the preceding sections of this memorandum, Defendant's violations of the federal FDCPA and California RFDCPA were numerous. For all the reasons stated above, Plaintiff requests an award of $12,000.65 Additionally, Plaintiff should be awarded attorney's fees for all the time reasonably expended and the costs incurred in the case. Plaintiff's attorney has demonstrated that he reasonably expended 14.8 hours in the prosecution of this matter, and that he should be awarded $4,440.00 for that time, and $534.21 in advanced expenses. Therefore, the total amount of the Judgment in this matter should be $16,974.21. A proposed Judgment is attached to this motion for the Court's use and convenience.

CONSUMER LAW CENTER, INC. By: /s/ Fred W. Schwinn Fred W. Schwinn, Esq. Attorney for Plaintiff BETTY JEAN NAPIER

$3,000 in statutory damages and penalties under the FDCPA and RFDCPA, then trebled pursuant to Cal. Civil Code § 3345. - 14 NOTICE OF MOTION AND MEMORANDUM Case No. C08-00910-RMW-RS

65

Case 5:08-cv-00910-RMW

Document 17-2

Filed 05/28/2008

Page 1 of 3

Case 5:08-cv-00910-RMW

Document 17-2

Filed 05/28/2008

Page 2 of 3

Case 5:08-cv-00910-RMW

Document 17-2

Filed 05/28/2008

Page 3 of 3

Case 5:08-cv-00910-RMW

Document 17-3

Filed 05/28/2008

Page 1 of 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Fred W. Schwinn (SBN 225575) CONSUMER LAW CENTER, INC. 12 South First Street, Suite 1014 San Jose, California 95113-2403 Telephone Number: (408) 294-6100 Facsimile Number: (408) 294-6190 Email Address: [email protected] Attorney for Plaintiff BETTY JEAN NAPIER

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION BETTY JEAN NAPIER, Plaintiff, v. TITAN MANAGEMENT SERVICES, LLC, a Georgia limited liability company, and FREDERICK ALLEN HOWARD, individually an in his official capacity, Defendants. Courtroom: Place: Case No. C08-00910-RMW-RS DECLARATION OF FRED W. SCHWINN IN SUPPORT OF MOTION FOR DEFAULT JUDGMENT AWARDING ATTORNEY FEES AND COSTS Date: Time: Judge: July 11, 2008 9:00 a.m. Honorable Ronald M. Whyte 6, 4th Floor 280 South First Street San Jose, California

I, Fred W. Schwinn, declare under penalty of perjury, under the laws of the United States, 28 U.S.C. § 1746, that the following statements are true: 1. 2. I am counsel for the Plaintiff in the above captioned case. I am a member in good standing of the bars of the following courts:

Supreme Court of the United States Washington, DC 2003 Supreme Court of California Sacramento, California 2003

-1DECLARATION OF FRED W. SCHWINN Case No. C08-00910-RMW-RS

Case 5:08-cv-00910-RMW

Document 17-3

Filed 05/28/2008

Page 2 of 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Supreme Court of Kansas Topeka, Kansas 1997 U.S. Court of Appeals for the Tenth Circuit Denver, Colorado 1999 U.S. Court of Appeals for the Ninth Circuit San Francisco, California 2003 U.S. District Court for the District of Kansas Topeka, Kansas 1997 U.S. District Court for the Western District of Missouri Jefferson City, Missouri 2001 U.S. District Court for the Northern District of California San Francisco, California 2003 U.S. District Court for the Eastern District of California Sacramento, California 2003 U.S. District Court for the Central District of California Los Angeles, California 2003 3. I am a 1994 graduate of Washburn University in Topeka, Kansas and a 1997

graduate of Washburn University School of Law. In 1995 I passed the Uniform Certified Public Accountant's examination and was granted a Certified Public Accountant certificate from the Kansas Board of Accountancy. I am a member of the State Bar of California, Bar Association of San Francisco, National Association of Consumer Advocates, Consumer Attorneys of California, National Association of Consumer Bankruptcy Attorneys, California Bankruptcy Forum, and Topeka Area Bankruptcy Council of which I am a past Treasurer. 4. From September 26, 1997, until December 21, 2003, I maintained a private

law practice with an office located in Topeka, Kansas. In December of 2003 I relocated my law practice to California. My practice is limited exclusively to the representation of consumers, with particular emphasis on representing consumer debtors under the United States Bankruptcy Code. In addition to Bankruptcy cases, I handle matters under the Fair Debt Collection Practices Act, Truth -2DECLARATION OF FRED W. SCHWINN Case No. C08-00910-RMW-RS

Case 5:08-cv-00910-RMW

Document 17-3

Filed 05/28/2008

Page 3 of 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

in Lending Act, Fair Credit Reporting Act, Telephone Consumers Protection Act, FTC Credit Practices Rule, Uniform Commercial Code, common law fraud, misrepresentation and deceit, usury, and other laws enacted to protect consumers. I undertake representation in many consumer cases with the expectation of being paid a contingency amount from the proceeds of recovery, or being paid based on an award of fees pursuant to a fee shifting statute such as the federal Fair Debt Collection Practices Act and California Rosenthal Fair Debt Collection Practices Act. 5. I have given a number of lectures to consumers and professional groups on

consumer law issues, including the Topeka Area Bankruptcy Council and the Pro Bono Project in San Jose, California. 6. I have been a member of the National Association of Consumer Advocates

since 1999 and have attended at least twelve (12) national conferences exclusively on consumer law issues. 7. I have been involved in many consumer cases involving a range of consumer

protection laws. I have handled several cases that have resulted in reported decisions favorable to consumers including: In re Crosby, 261 B.R. 470 (D. Kan. 2001) (holding that the issuance of a Form 1099-C by a creditor forgives the debt); In re Green, 287 B.R. 827 (D. Kan. 2002) (holding that the inclusion of language in a Chapter 13 Plan which attempts to discharge student loans should be reviewed on a case-by-case basis); Bilal v. Household Finance Corporation III (In re Bilal), 296 B.R. 828 (D. Kan. 2003) (holding that the inclusion of language in a Chapter 13 Plan which rescinds a home mortgage loan under the Truth in Lending Act is binding on a mortgage creditor who fails to object before confirmation); and, Ramirez v. Household Finance Corporation III (In re Ramirez), 2003 Bankr. LEXIS 1364 (D. Kan. 2003) (finding violations of the Truth in Lending Act). I am also plaintiff's counsel in the Quenzer v. Advanta Mortgage Corp. (In re Quenzer), 266 B.R. 760 (D. Kan. 2001) and Quenzer v. Advanta Mortgage Corp. (In re Quenzer), 274 B.R. 899 (D. Kan. 2002) cases which were reversed and remanded in Quenzer v. Advanta Mortgage Corp. (In re Quenzer), 288 B.R. 884 (D. Kan. 2003). Despite the reversal, this case remains one of the leading cases in the country regarding rescission under the Truth in Lending Act in the bankruptcy context and it is still cited for the detail and clarity of the Bankruptcy Court's decision. See National Consumer Law -3DECLARATION OF FRED W. SCHWINN Case No. C08-00910-RMW-RS

Case 5:08-cv-00910-RMW

Document 17-3

Filed 05/28/2008

Page 4 of 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Center, Truth in Lending (6th ed. 2007) at 453. 8. My firm's work in connection with this case is shown on the schedule

attached hereto, marked Exhibit "A." My staff and I prepared our time records contemporaneously with our performance of the work, using the Amicus Attorney and Timeslips software packages for law offices. The time records do not duplicate work performed in any other file. 9. For my services as an attorney in this case, the Consumer Law Center, Inc.,

seeks an hourly rate of $300.00. I believe that this hourly rate is reasonable, and that it is comparable to the rates being charged by attorneys of similar experience and expertise in the San Francisco Bay Area's federal and state courts. I have been awarded an hourly rate of $300 in a number of cases in Northern California, including: Citibank South Dakota, N.A., v. O'Connor, Santa Clara Case No. 1-05-CV-038648 (February 7, 2006) (J. Huber); Maundu v. The Barnes Law Firm, Northern District Case No. C05-01939-JF-PVT (May 23, 2006) (J. Fogel); Wallat v. Roush, Northern District Case No. C05-03518-JF-HRL (September 21, 2006) (J. Fogel); Chan v. North American Collectors, Inc., Northern District Case No. C06-00016-JL (January 26, 2007) (J. Larson); Chan v. Rosen & Loeb, Northern District Case No. C06-04267-SBA-EDL (September 25, 2007) (J. Armstrong); Napier v. Collection Bureau of America, LTD., Northern District Case No. C07-02429MMC (October 29, 2007) (J. Chesney); Asset Acceptance, LLC v. Mekonnen, Santa Clara Case No. 1-06-CV-073155 (December 21, 2007) (J. Murphy); Tong v. Capital Management Services Group, Inc., Northern District Case No. C07-01026-RMW-HRL (January 18, 2008) (J. Whyte). 10. The Consumer Law Center, Inc., seeks compensation for the 14.8 hours that

I spent preforming legal services for Plaintiff in this case. 11. In the San Francisco Bay Area it is customary for lawyers to itemize and bill

their clients separately, in addition to their regular hourly rate, for expert witness fees, court reporter fees, long distance telephone calls, on-line research charges, copying and facsimile costs, postage and delivery charges, and travel costs, including mileage, tolls and parking. The Consumer Law Center, Inc., advanced the following fees and costs, and incurred the following expenses in this matter: -4DECLARATION OF FRED W. SCHWINN Case No. C08-00910-RMW-RS

Case 5:08-cv-00910-RMW

Document 17-3

Filed 05/28/2008

Page 5 of 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Filing fees to Clerk of Court Research Expenses Photocopying - 588 @ $ .20 Postage TOTAL 12.

$ 350.00 $ 39.50 $ 117.60 $ 27.11 $ 534.21

The requested attorney's fees and costs were reasonable and necessary to the

litigation in this matter. Executed at San Jose, California on May 28, 2008. /s/ Fred W. Schwinn Fred W. Schwinn (SBN 225575) CONSUMER LAW CENTER, INC. 12 South First Street, Suite 1014 San Jose, California 95113-2403 Telephone Number: (408) 294-6100 Facsimile Number: (408) 294-6190 Email Address: [email protected] Attorney for Plaintiff BETTY JEAN NAPIER

-5DECLARATION OF FRED W. SCHWINN Case No. C08-00910-RMW-RS

Case 5:08-cv-00910-RMW

Document 17-4

Filed 05/28/2008

Page 1 of 5

Exhibit "A"

Case 5:08-cv-00910-RMW Document 17-4 Filed 05/28/2008 Consumer Law Center, Inc.
12 South First Street, Suite 1014 San Jose, CA 95113-2418

Page 2 of 5

Invoice submitted to: Betty Napier 6440 Green Field Drive Gilroy CA 95020-3433

May 28, 2008

Invoice #10005

Professional Services Hrs/Rate 9/18/2007 FWS Meeting with Client - Re: Explaining claims and Engagement Letter 2/6/2008 FWS Research Defendant Identification 2/12/2008 FWS Drafting Documents Complaint FWS Drafting Documents Civil Cover Sheet and Summons for 2 Defendants 2/13/2008 FWS Receive & Review Order Setting Initial Case Management Conference and ADR Deadlines 2/14/2008 FWS Drafting Documents Service Packets for 2 Defendants 2/15/2008 FWS Draft Letter to Client - Re: Case Filed 2/18/2008 FWS Draft Email to Judge Seeborg's chambers - Re: Copy of Complaint and Exhibits pursuant to local rule. 3/4/2008 FWS Drafting Documents Notice of Unavailability of Counsel 3/28/2008 FWS Drafting Documents Summons Returned Executed for 2 Defendants 0.50 300.00/hr 1.00 300.00/hr 2.90 300.00/hr 0.20 300.00/hr 0.10 300.00/hr Amount 150.00

300.00

870.00

60.00

30.00

0.20 300.00/hr 0.10 300.00/hr 0.10 300.00/hr

60.00

30.00

30.00

0.10 300.00/hr 0.10 300.00/hr

30.00

30.00

(408) 294-6100

Case 5:08-cv-00910-RMW

Document 17-4

Filed 05/28/2008

Page 3 of 5

Betty Napier Hrs/Rate 4/2/2008 FWS Drafting Documents Request for Default and related documents for 2 Defendants 4/7/2008 FWS Drafting Documents Memorandum in Support of Motion for Default Judgment 4/9/2008 FWS Receive & Review Clerk's Declination of Default 4/15/2008 FWS Drafting Documents Declaration of Betty Jean Napier in Support of Motion for Default Judgment FWS Drafting Documents Declaration of Fred Schwinn in Support of Motion for Default Judgment FWS Review File Review and Edit time records for Motion for Default Judgment 4/22/2008 FWS Drafting Documents Expert Declaration of Ronald Wilcox in Support of Plaintiff's Motion for Attorney Fees and Costs FWS Drafting Documents Expert Declaration of Scott Maurer in Support of Plaintiff's Motion for Attorney Fees and Costs 4/23/2008 FWS Meeting with Scott Maurer - Re: Expert Declaration of Scott Maurer in Support of Plaintiff's Motion for Attorney Fees and Costs FWS Drafting Documents Request for Default and related document for 2 Defendants 4/24/2008 FWS Meeting with Ronald Wilcox - Re: Expert Declaration of Ronald Wilcox in Support of Plaintiff's Motion for Attorney Fees and Costs 4/25/2008 FWS Drafting Documents Declination to Proceed Before a United States Magistrate Judge FWS Receive & Review Clerk's Entry of Default for 2 Defendants 4/28/2008 FWS Receive & Review Clerk's Notice of Impending Reassignment to U.S. District Judge 4/29/2008 FWS Receive & Review Order Reassigning Case to Judge Whyte 0.50 300.00/hr 2.60 300.00/hr 0.10 300.00/hr 0.50 300.00/hr

Page

2

Amount 150.00

780.00

30.00

150.00

0.50 300.00/hr

150.00

0.20 300.00/hr 0.20 300.00/hr

60.00

60.00

0.20 300.00/hr

60.00

0.20 300.00/hr

60.00

0.20 300.00/hr 0.20 300.00/hr

60.00

60.00

0.10 300.00/hr 0.10 300.00/hr 0.10 300.00/hr 0.10 300.00/hr

30.00

30.00

30.00

30.00

Case 5:08-cv-00910-RMW

Document 17-4

Filed 05/28/2008

Page 4 of 5

Betty Napier Hrs/Rate 5/13/2008 FWS Drafting Documents Declaration of Betty Jean Napier in Support of Motion for Default Judgment FWS Telephone call to Betty Jean Napier - Re: Case Update - Declaration in Support of Motion for Default Judgment FWS Draft Email to Michelle Napier Re: Declaration in support of Motion for Default Judgment for Betty to sign pursuant to our telephone conversation. 5/28/2008 FWS Drafting Documents Memorandum in Support of Motion for Default Judgment For professional services rendered Additional Charges : Qty/Price 2/6/2008 FWS Research Expenses Accurint - $39.50 - Re: Defendant Identification 2/12/2008 FWS Photocopying Expense 99 Copies @ $.20/copy - Re: Copies of Complaint, Summons, and related documents for Filing with the Clerk of the District Court FWS Filing Fee Expense Case Filing Fee - $350.00 2/15/2008 FWS Postage Expense Postage Expense - $1.65 - Re: Copy of Complaint mailed to Client FWS Postage Expense Postage Expense - $15.28 - Re: Service Packets sent to Defendants FWS Photocopying Expense 146 Copies @$.20/copy - Re: Service Packets sent to Defendants FWS Photocopying Expense 30 Copies @$.20/copy - Re: Copy of Complaint mailed to Client 2/22/2008 FWS Photocopying Expense 73 Copies @$.20/copy - Re: Service Packets sent to Defendant's residential address 1 39.50 99 0.20 0.50 300.00/hr

Page

3

Amount 150.00

0.60 300.00/hr

180.00

0.10 300.00/hr

30.00

2.50 300.00/hr 14.80

750.00

$4,440.00

39.50

19.80

1 350.00 1 1.65 2 7.64 146 0.20 30 0.20 73 0.20

350.00

1.65

15.28

29.20

6.00

14.60

Case 5:08-cv-00910-RMW

Document 17-4

Filed 05/28/2008

Page 5 of 5

Betty Napier Qty/Price 4/2/2008 FWS Postage Expense Postage Expense - $1.74 - Re: Requests for Entry of Default against 2 Defendants FWS Photocopying Expense 30 Copies @ $.20/copy - Re: Requests for Entry of Default against 2 Defendants 4/23/2008 FWS Photocopying Expense 30 Copies @ $.20/copy - Re: Requests for Entry of Default against 2 Defendants FWS Postage Expense Postage Expense - $1.74 - Re: Requests for Entry of Default against 2 Defendants 5/28/2008 FWS Photocopying Expense 36 Copies @ $.20/copy - Re: Motion for Default Judgment and related documents (Chambers Copy) FWS Photocopying Expense 36 Copies @ $.20/copy - Re: Motion for Default Judgment and related documents (Client's Copy) FWS Photocopying Expense 108 Copies @ $.20/copy - Re: Motion for Default Judgment and related documents (Defendants' Service Copies) FWS Postage Expense Postage Expense - $1.34 - Re: Motion for Default Judgment and related documents (Chambers Copy) FWS Postage Expense Postage Expense - $1.34 - Re: Motion for Default Judgment and related documents (Client's Copy) FWS Postage Expense Postage Expense - $4.02 - Re: Motion for Default Judgment and related documents (Defendants' Service Copies) Total costs 3 0.58

Page

4

Amount 1.74

30 0.20

6.00

30 0.20

6.00

3 0.58

1.74

36 0.20

7.20

36 0.20

7.20

108 0.20

21.60

1 1.34

1.34

1 1.34

1.34

3 1.34

4.02

$534.21

Total amount of this bill

$4,974.21

Balance due

$4,974.21

Case 5:08-cv-00910-RMW

Document 17-5

Filed 05/28/2008

Page 1 of 4

Case 5:08-cv-00910-RMW

Document 17-5

Filed 05/28/2008

Page 2 of 4

Case 5:08-cv-00910-RMW

Document 17-5

Filed 05/28/2008

Page 3 of 4

Case 5:08-cv-00910-RMW

Document 17-5

Filed 05/28/2008

Page 4 of 4

Case 5:08-cv-00910-RMW

Document 17-6

Filed 05/28/2008

Page 1 of 3

Case 5:08-cv-00910-RMW

Document 17-6

Filed 05/28/2008

Page 2 of 3

Case 5:08-cv-00910-RMW

Document 17-6

Filed 05/28/2008

Page 3 of 3

Case 5:08-cv-00910-RMW

Document 17-7

Filed 05/28/2008

Page 1 of 1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
JUDGMENT Case No. C08-00910-RMW-RS

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION BETTY JEAN NAPIER, Plaintiff, [PROPOSED] JUDGMENT v. TITAN MANAGEMENT SERVICES, LLC, a Georgia limited liability company, and FREDERICK ALLEN HOWARD, individually and in his official capacity, Defendants. This action came on for hearing before the Court, Honorable Ronald M. Whyte, District Judge, presiding, and the issues having been duly heard and a decision having been duly rendered, It is Ordered and Adjudged that the plaintiff, BETTY JEAN NAPIER, recover of defendants, TITAN MANAGEMENT SERVICES, LLC, and FREDERICK ALLEN HOWARD, jointly and severally, the sum of $16,974.21, with interest thereon at the rate provided by law. Case No. C08-00910-RMW-RS

Dated at San Jose, California, this ______ day of July, 2008.

The Honorable Ronald M. Whyte Unites States District Judge

Case 5:08-cv-00910-RMW

Document 17-8

Filed 05/28/2008

Page 1 of 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

Fred W. Schwinn (SBN 225575) CONSUMER LAW CENTER, INC. 12 South First Street, Suite 1014 San Jose, California 95113-2418 Telephone Number: (408) 294-6100 Facsimile Number: (408) 294-6190 Email Address: [email protected] Attorney for Plaintiff BETTY JEAN NAPIER

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION BETTY JEAN NAPIER, Plaintiff, v. TITAN MANAGEMENT SERVICES, LLC, a Georgia limited liability company, and FREDERICK ALLEN HOWARD, individually and in his official capacity, Defendants. STATE OF CALIFORNIA COUNTY OF SANTA CLARA ) ) ss: ) CERTIFICATE OF SERVICE BY MAIL Case No. C08-00910-RMW-RS

I am employed in the County of Santa Clara, California. I am over the age of eighteen years and not a party to the within entitled cause. My business address is 12 South First Street, Suite 1014, San Jose, California 95113-2418. On May 28, 2008, I served the following: 1. 2. NOTICE OF MOTION AND MOTION WITH MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFAULT JUDGMENT DECLARATION OF BETTY JEAN NAPIER IN SUPPORT OF MOTION FOR DEFAULT JUDGMENT DECLARATION OF FRED W. SCHWINN IN SUPPORT OF MOTION FOR DEFAULT JUDGMENT AWARDING ATTORNEY FEES AND COSTS EXPERT DECLARATION OF RONALD WILCOX IN SUPPORT OF PLAINTIFF'S MOTION FOR ATTORNEY FEES AND COSTS -1CERTIFICATE OF SERVICE BY MAIL Case No. C08-00910-RMW-RS

24 25 26 4. 27 28 3.

Case 5:08-cv-00910-RMW

Document 17-8

Filed 05/28/2008

Page 2 of 2

1 2

5. 6.

EXPERT DECLARATION OF SCOTT MAURER IN SUPPORT OF PLAINTIFF'S MOTION FOR ATTORNEY FEES AND COSTS PROPOSED JUDGMENT

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2CERTIFICATE OF SERVICE BY MAIL Case No. C08-00910-RMW-RS

on the interested parties in said cause, by placing a true and correct copy thereof in a sealed envelope with postage fully prepaid thereon and depositing it in the United States mail at San Jose, California addressed as follows: DEFENDANT: Titan Management Services, LLC c/o Frederick Allen Howard, Agent for Service 2160 Satellite Boulevard, Suite 350 Duluth, GA 30097-4074 DEFENDANT: Frederick Allen Howard Titan Management Services, LLC 2160 Satellite Boulevard, Suite 350 Duluth, GA 30097-4074 DEFENDANT: Frederick Allen Howard 10665 Nellie Brook Court C Duluth, GA 30097-1901 I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed at San Jose, California on May 28, 2008. /s/ Fred W. Schwinn