-1- 

P:\Documents\WPO2002\WP51\CONSUMER LAW FORMS\Moyer v. Turnbrook\Memo of Law in Support of Atty Fees.doc 

UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

COURT FILE NO.: 05-CV-1053 

Kristy Moyer, 

 

Plaintiff, 

v. 

Turnbrook Associates, Inc., 

Defendant. 

PLAINTIFFS’ MEMORANDUM 

IN SUPPORT OF AN AWARD OF 

ATTORNEYS’ FEES AND COSTS 

[ORAL ARGUMENT REQUESTED] 

I. INTRODUCTION

 Plaintiffs submit this Memorandum of Law in Support of their application for an award 

of attorney’s fees pursuant to 15 U.S.C. § 1692k(a)(3). 

II. FACTS

Pursuant to Fed. R. Evid. 201, Plaintiff respectfully requests that the Court take judicial 

notice of the following facts relevant to this motion: 

1. Plaintiff Kristy Moyer commenced this action by filing a Complaint on March 4, 2005. 

2. The Complaint in this action alleged that the Defendants violated multiple and numerous 

provisions of the Fair Debt Collections Practices Act, 15 U.S.C. §1692, et seq. (hereinafter 

FDCPA). 

3. The Summons and Complaint were duly served on Defendants as of March 15, 2005. 

4. The Defendants filed an Answer to Plaintiff’s Complaint with the Court on March 29, 

2005, which denied that Defendants had engaged in any unlawful conduct. 

5. Plaintiffs then served Defendants with discovery requests in the form of Interrogatories, 

Request for Admissions, Request for Production of Documents and Request for Statements. 

 

Case 2:05-cv-01053-JS Document 9-2 Filed 08/31/05 Page 1 of 10
-2- 

P:\Documents\WPO2002\WP51\CONSUMER LAW FORMS\Moyer v. Turnbrook\Memo of Law in Support of Atty Fees.doc 

6. This case was vigorously defended by the Defendants and vigorously litigated by the 

Plaintiffs in an effort to prove their claims in the face of the strong denials by these 

Defendants. 

7. The parties participated in Arbitration with Joseph keener, Esquire, John White, III, 

Esquire and Linda Moy, Esquire serving as arbiters on July 20, 2005. 

8. An arbitration award in the amount of $1,000.00 was entered for the Plaintiff and against 

Defendant Turnbrook, on July 21, 2005 

9. Defendants did not appeal the arbitration award and a Civil Judgment was entered by this 

Honorable Court on August 25, 2005, in the amount of $1,000.00 for the Plaintiff and 

against Defendant Turnbrook,. 

10. Attached to these motion papers, and incorporated by reference is the Affidavit of Jason M. 

Rapa, which details the undersigned counsel’s billable time and costs on this case as well 

as his professional experience. 

11. Attached to these motion papers, and incorporated by reference is the Affidavit of Amount, 

which details the total billable time and costs on this case. 

III. LEGAL ARGUMENT 

A. PLAINTIFF’S FDCPA SUIT WAS SUCCESSFUL AND THEREFORE 

PLAINTIFF AS THE PREVAILING PARTY IS ENTITLED TO AN AWARD OF 

ATTORNEY’S FEES AND COSTS UNDER THE FDCPA. 

The FDCPA expressly authorizes the recovery of attorney fees and costs to a successful 

consumer Plaintiff: 

. . .any debt collector who fails to comply with any provision of this 

subchapter . . . is liable to such person in an amount equal to the sum of - 

[actual damages] [statutory damages] and 

Case 2:05-cv-01053-JS Document 9-2 Filed 08/31/05 Page 2 of 10
-3- 

P:\Documents\WPO2002\WP51\CONSUMER LAW FORMS\Moyer v. Turnbrook\Memo of Law in Support of Atty Fees.doc 

(3) in the case of any successful action to enforce the foregoing liability, 

the costs of the action, together with a reasonable attorney's fee as 

determined by the court. 

15 U.S.C. §1692k(a)(3). The purpose of this fee shifting provision is to attract competent 

counsel. Zagorski v. Midwest Billing Services, Inc., 128 F.3d 1164, 1167 (7th Cir. 1997). In 

litigation under to the FDCPA, an award of attorney fees is mandatory, not discretionary 

Graziano v. Harrison, 950 F.2d 107, 113 (3rd Cir. 1991). Piples v. Credit Bureau of Lockport, 

Inc., 886 F.2d 22, 28 (2d Cir. 1989) (“Because the FDCPA was violated, however, the statute 

requires the award of costs and reasonable attorney's fee. . .”); Mace v. Van Ru Credit, 109 F.3d 

338, 344 N.3 (7th Cir. 1997). 

An award of attorney’s fees to a successful consumer under the FDCPA is designed to 

compensate the consumer for his role in privately enforcing the FDCPA. Tolentino v. Friedman, 

46 F.3d 645, 651 (7th Cir. 1995); see also, Murphy v. Ford Motor Credit Co., 629 F.2d 556 (8th 

Cir. 1980) (Truth in Lending case). Congress clearly intended that the prevailing consumer 

would recover his or her reasonable attorney’s fees and costs. 

Given the structure of the section, attorney's fees should not be construed 

as a special or discretionary remedy; rather, the Act mandates an award of 

attorney's fees as a means of fulfilling Congress's intent that the Act 

should be enforced by debtors acting as private attorneys general. 

Graziano, 950 F.2d 107, 113 (3d Cir. 1991) (emphasis added). See, also DeJesus v. Banco 

Popular de Puerto Rico, 918 F.2d 232, 235 (1st Cir. 1990) (awarding attorney fees under the 

Truth in Lending Act). 

Plaintiff’s Complaint alleges numerous violations of the FDCPA, 15 U.S.C. §§ 1692 et 

seq. for which she successfully prevailed by being awarded the maximum statutory damages 

available under the Act and therefore Plaintiff’s attorneys fees and costs should be awarded as 

requested. 

Case 2:05-cv-01053-JS Document 9-2 Filed 08/31/05 Page 3 of 10
-4- 

P:\Documents\WPO2002\WP51\CONSUMER LAW FORMS\Moyer v. Turnbrook\Memo of Law in Support of Atty Fees.doc 

B. ATTORNEY FEES AWARDS SHALL BE CALCULATED ACCORDING TO 

THE LODESTAR FORMULA. 

In calculating an award of attorney’s fees, the Court must first begin with the “lodestar” 

figure, which is calculated by multiplying the hours reasonably expended times an allowed 

hourly rate. See Hensley v. Eckerhart, 103 S.Ct. 1933, 1939 (1983) (viewing an award of fees 

under 42 U.S.C. §1988). The burden is on the applicant to prove that the fee request is 

reasonable, with a strong presumption that the lodestar amount represents a fair and appropriate 

fee award. Hensley, 103 S.Ct. at 1941. 

Although Hensley was decided in the context of a civil rights case, the lodestar analysis is 

applicable to all cases involving an attorney fee shifting statute. The Supreme Court has 

previously noted that, “We have stated in the past that fee shifting statutes’ similar language is ‘a 

strong indication’ that they are to be interpreted alike.” Independent Federation of Flight 

Attendants v. Zipes, 491 U.S. 754, 109 S.Ct. 2732, 105 L.Ed.2d 639 (1989) (quoting Northcross 

v. Memphis Bd. Of Education, 412 U.S. 427, 428, 93 S.Ct. 2201, 2202, 37 L.Ed.2d 48 (1973).) 

See also City of Burlington v. Dague, 112 S.Ct. 2638, 2641 (1992) (clean water act case 

applying lodestar analysis); Simpson v. Sheahan, 104 F.3d 998, (7th Cir. 1997) (civil rights 

case); DeJesus v. Banco Popular de Puerto Rico, 918 F.2d 232, 234 (1st Cir. 1990) (truth in 

lending case); Piekarski v. Home Owners Savings Bank, F.S.B., 755 F. Supp. 859, 863 (D. Minn 

1991) (retaliatory discharge case). 

 The determination of the allowable hours rests with the sound discretion of the trial court. 

Hensley, 103 S.Ct. at 1941. A determination of the hourly rate by the trial court should consider 

a rate “commensurate which [counsel] could obtain by taking other types of cases.” Tolentino, 

46 F.3d 645, 652 - 653 (7th Cir. 1995). 

C. THE HOURLY RATES FOR PLAINTIFFS’ ATTORNEYS ARE REASONABLE. 

Case 2:05-cv-01053-JS Document 9-2 Filed 08/31/05 Page 4 of 10
-5- 

P:\Documents\WPO2002\WP51\CONSUMER LAW FORMS\Moyer v. Turnbrook\Memo of Law in Support of Atty Fees.doc 

The undersigned counsel’s hourly rate of $225.00 per hour is reasonable for the work 

performed in this case. This counsel has three years of experience in litigating hundreds of 

FDCPA cases for Pennsylvania consumers on both individual and class action basis. 

This counsel has received extensive training and co-counsel experience with Peter F. 

Barry, Esquire of St. Paul, Minnesota who has litigated, settled, and resolved thousands of 

FDCPA cases over the past decade, in addition to acting as an Adjunct Professor of Law 

teaching a federal consumer rights litigation strategy class to students at William Mitchell 

College of Law in St. Paul, Minnesota and has trained more than 40 attorneys from 17 states in 

consumer law litigation and practice strategies, including this undersigned counsel. See website 

lawpoint.com. This counsel has also co-counseled with the very experienced David A. Searles, 

Esquire of the firm of Donovan and Searles, LLC, Philadelphia, Pennsylvania on FDCPA class 

action cases. 

I have focused my law practice in the FDCPA area, and have established myself as a 

valuable advocate for otherwise underrepresented consumers in Lehigh Valley, Pennsylvania. In 

addition, this counsel has spoken at a national consumer rights seminar held in Washington, D.C. 

this past year, educating other consumer advocates on FDCPA litigation. This counsel 

respectfully posits that given the depth and breadth of his expertise in the area of FDCPA 

litigation, his hourly rate of $225.00 is eminently reasonable for this type of federal litigation. 

D. “PROPORTIONALITY” IS NOT A PART OF THE COURT’S ANALYSIS IN 

DETERMINING REASONABLE FEES. 

Plaintiff anticipates that the Defendant may argue that the size of Plaintiff’s Civil 

Judgment should be considered in determining what a “reasonable” attorney fee award is. 

However, the amount of attorney’s fees awarded pursuant to statute is not required to be 

Case 2:05-cv-01053-JS Document 9-2 Filed 08/31/05 Page 5 of 10
-6- 

P:\Documents\WPO2002\WP51\CONSUMER LAW FORMS\Moyer v. Turnbrook\Memo of Law in Support of Atty Fees.doc 

proportionate to the amount of damages recovered. To the contrary, a trial court may abuse its 

discretion if it applies an impermissible “proportionality” standard to the fee award. 

 The U.S. Supreme Court has previously considered the question of proportionality in 

attorney fee awards and rightly held: 

We reject the proposition that fee awards under section [42 U.S.C.] 1988 

should necessarily be proportionate to the amount of damages a civil 

rights plaintiff actually recovers. 

City of Riverside v. Rivera, 477 U.S. 561, 574, 106 S.Ct. 2686, 2694, 91 L.Ed.2d 466 (1986). 

The Court went on to state: 

A rule of proportionality would make it difficult, if not impossible, for 

individuals with meritorious civil rights claims but relatively small 

potential damages to obtain redress from the courts. This is totally 

inconsistent with Congress’ purpose in enacting section 1988. 

Id., 477 U.S. at 578, 106 S.Ct. at 2696. 

 In the context of a similar Consumer Credit Protection Act statute, the Fair Credit 

Reporting Act, (“FCRA”), the Fourth Circuit stated: 

Proportionality of attorneys’ fees to the amount recovered is not required 

in every action brought pursuant to the FCRA. Since there will rarely be 

extensive damages in an FCRA action, requiring that attorney’s fees be 

proportionate to the amount recovered would discourage vigorous 

enforcement of the Act. 

Yoyay v. City of Alexandria Employees Credit Union, Inc. 827 F.2d 967, 974 (4th Cir. 1987). 

Under the FDCPA, the Seventh Circuit has noted that the “cumulative effect of petty 

violations ..... may not be petty” and thus a case involving a small amount of damages is no 

justification to deny attorney fees. Zagorski, 128 F.3d at 1167 (7th Cir. 1997) (quoting) Hyde v. 

Small, 123 F.3d 583, 585 (7th Cir. 1997). 

 An exception to the bar against proportionality arises on the recovery of nominal 

damages. See, e.g. Farrar v. Hobby, 506 U.S. 103 113 S.Ct. 566, 575 121 L.Ed.2d 494 (1992) 

Case 2:05-cv-01053-JS Document 9-2 Filed 08/31/05 Page 6 of 10
-7- 

P:\Documents\WPO2002\WP51\CONSUMER LAW FORMS\Moyer v. Turnbrook\Memo of Law in Support of Atty Fees.doc 

(Plaintiff demanding $17 million dollars but recovering nominal damage of $1.00 is entitled to 

no attorneys fees under civil rights statute); Carroll v. Wolpoff & Abramson, 53 F.3d 626, 630 

(4th Cir. 1995) (FDCPA Plaintiff seeking $1,000.00 statutory damages but recovering $50.00 in 

statutory damages, had attorney fee request for $10,000.00 reduced to $500.00); but see Zagorski 

v. Midwest Billing Services, Inc., 128 F.3d 1164 (7th Cir. 1997) (trial court’s denial of attorney 

fees, after Plaintiff’s recovery of $100.00 statutory damages, constituted an abuse of discretion). 

Nevertheless, an inadequate or nominal recovery is simply not an issue in the case at 

hand. In fact, the Civil Judgment amount in this case could not reasonably be construed as 

nominal damages, as it represents the maximum statute damages prescribed by statute. 

Therefore Plaintiff’s attorneys are entitled to a full attorney fee award. 

Courts have encountered many examples of fee awards disproportionate to damage 

awards. See City of Riverside v. Rivera, 477 U.S. 561, 106 S. Ct. 2686, 91 L.Ed.2d 466 (1986) 

($245,456.25 in attorney fees, $33,350.00 in damages); Building Service Local 47, 46 F.3d 1392 

(6th Cir. 1995) (ERISA case, $70,185.95 in attorney fees, $25,598.71 in damages); Northwest 

Women’s Center v. McMonagh, 889 F.2d 466 (3rd Cir. 1989) (RICO case, over $60,000.00 in 

attorney fees, $2,661.00 damages); Duval v. Midwest Auto City, Inc., 578 F.2d 721, 726 (8th Cir. 

1978) (Federal Odometer case, over $14,000 attorney fees, $3,000 in damages); Perez v. Perkiss, 

742 F. Supp. 883 (D.Del. 1990) (FDCPA case, $10,110 in attorney fees, $1,200 damages). 

In 2002, the court for the District of Minnesota found that an attorney fees and costs 

award of $44,655.29 was reasonable in an FDCPA case litigated by the undersigned counsel, 

where the Plaintiff’s statutory recovery was $1,000.00. Armstrong v. Rose Law Firm, P.A. -

Court File 00-2287 (MJD/SRN), 2002 WL 31050583. “The Court finds that Plaintiff’s 

attorneys’ fees and costs [of $44,655.29] are reasonably proportional. While they far exceed the 

[$1,000] statutory damages award in the present case, Plaintiff did not choose to create this 

Case 2:05-cv-01053-JS Document 9-2 Filed 08/31/05 Page 7 of 10
-8- 

P:\Documents\WPO2002\WP51\CONSUMER LAW FORMS\Moyer v. Turnbrook\Memo of Law in Support of Atty Fees.doc 

disparity. Defendant aggressively defended this case, as was its right. ... This defense produced 

a large amount of litigation, and significantly increased the number of hours Plaintiff’s attorney 

committed to this case.” Id. 

The issue before this Court is no different than that which the Armstrong court 

confronted: Defendants who vigorously fight the inevitable liability occasioned by violations of 

the FDCPA, must stand ready to accept the fee awards inevitably occasioned by such a defense. 

E. PLAINTIFF’S ATTORNEY HAS EXERCISED SOUND DISCRETION IN 

WRITING-OFF APPROPRIATE AMOUNTS OF TIME PRIOR TO HIS 

APPLICATION FOR FEES TO THIS COURT. 

The time and billing records included within the Affidavits of the undersigned counsel 

show a good use of discretion in billing appropriate amounts back to these Defendants for their 

work necessary for establishing Defendants’ FDCPA liability to the Plaintiff.1 A review of these 

records show that numerous time and billing entries have been discounted partially, or writtenoff entirely, by Plaintiff’s attorney. The time and billing records, made part of the motion papers 

before this Court, show good use of productive time by Plaintiff’s attorney and establish a sound 

basis for granting this reasonable fee request. 

F. THE COSTS INCURRED IN LITIGATING THIS MATTER WERE 

REASONABLE AND NECESSARY TO ENFORCE THE DEFENDANTS’ 

LIABILITY UNDER THE FDCPA, AND REFLECT GOOD JUDGMENT ON 

THE PART OF PLAINTIFFS’ ATTORNEYS. 

The FDCPA permits an award of the “costs of the action” in the case of a successful 

action to enforce liability under its provisions. 15 U.S.C. § 1692k(a)(3). 

 

1 See Affidavit of Jason M. Rapa – Exhibit A.

Case 2:05-cv-01053-JS Document 9-2 Filed 08/31/05 Page 8 of 10
-9- 

P:\Documents\WPO2002\WP51\CONSUMER LAW FORMS\Moyer v. Turnbrook\Memo of Law in Support of Atty Fees.doc 

The costs in this case were reasonable and incurred necessarily in litigating this case. 

Travel was kept to a minimum and good judgment was used to minimize travel costs. In 

addition, Plaintiff’s attorney did not charge unnecessary amounts for copies, postage, facsimiles, 

or exorbitant travel expenses. 

The travel expenses and other costs incurred in successfully litigating this case were 

reasonable and necessary, and therefore should be fully awarded by this Court. 

G. A VIGOROUS DEFENSE LEADS TO HIGHER ATTORNEY FEES AND COSTS 

FOR THE PLAINTIFF. 

The harder a defendant fights in a consumer action, the larger the fees ultimately become. 

The Fifth Circuit, in McGowan v. King, Inc., 661 F.2d 48, 51 (5th Cir. 1981), laid bare the ugly 

practicalities of consumer litigation when it held: 

The borrower’s counsel did not inflate this small [Truth-In-Lending] case 

into a large one; its protraction resulted from the stalwart defense. And 

although defendants are not required to yield an inch or to pay a dime not 

due, they may by militant resistance increase the exertions required of 

their opponents and thus, if unsuccessful, be required to bear that cost. 

See also, Diettrich v. Norwest Airlines, Inc., 967 F.Supp. 1132 (E.D. Wis. 1997). Given the 

efforts of the Defendants, a higher fee application and award is natural. After Plaintiff filed her 

complaint, Defendants vigorously defended the claims asserted, as was their right, even though 

Plaintiffs’ counsels later established that the alleged FDCPA violations had occurred, after 

having been vehemently denied by the Defendants. As a direct and proximate result of this 

vigorous defense, Plaintiffs’ required a higher number of hours by to adequately present and 

ultimately prove Plaintiffs’ claims under the FDCPA. 

As a natural and foreseeable consequence, Plaintiff reasonably incurred these attorney 

fees and costs in order to vindicate her rights under the FDCPA. 

 

Case 2:05-cv-01053-JS Document 9-2 Filed 08/31/05 Page 9 of 10
-10- 

P:\Documents\WPO2002\WP51\CONSUMER LAW FORMS\Moyer v. Turnbrook\Memo of Law in Support of Atty Fees.doc 

IV. CONCLUSION

The truth is that these Defendants vigorously defended this lawsuit right up until 

Arbitration award in favor of Plaintiff. Plaintiffs were compelled to vigorously litigate this case; 

to follow through on its discovery requests; to conduct an arbitration hearing; and, to ultimately 

discredit the version of facts offered up by these Defendants. It was only upon this solid 

foundation of thorough preparation, litigation, and workup that these Plaintiffs were able to 

prevail in this matter. Plaintiffs’ counsel now simply asks that this Court fairly and adequately 

compensate them for those successful efforts. 

For the reasons herein, Plaintiffs respectfully request that this Court: 

• GRANT Plaintiffs’ Motion for Attorney’s fees in the amount of $6,075.00 and costs 

in the amount of $386.87; 

• ORDER Defendants to pay Plaintiff’s counsel a total of $6,461.87, or such other 

amount as the Court may determine such amount to be paid no later than October 1, 

2005.

• ORDER Defendants to pay Plaintiff the $1,000.00 Civil Judgment entered on 

August 25, 2005 no later than October 1, 2005. 

Dated: August 31, 2005 LIGHTNER LAW OFFICES, P.C.

 

By:___s/jr1052____________________ 

Jason M. Rapa, Esq. 

Attorney for Plaintiff 

Attorney I.D. #: 89419 

4654 Hamilton Boulevard 

Allentown, PA 18103 

Telephone: (610) 530-9300 

Facsimile: (610) – 530-9310 

jrapa@lightnerlaw.com

ATTORNEY FOR PLAINTIFF 

Case 2:05-cv-01053-JS Document 9-2 Filed 08/31/05 Page 10 of 10