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Alcorn v. Perry

United States District Court, D. Oregon, Portland Division

March 12, 2018



          Youlee Yim You, United States Magistrate Judge

         Defendants Grover W. Sparkman (“Sparkman”) and Fairfield Financial Services, Inc. (“Fairfield”) (collectively “defendants”) have filed an FRCP 54 Motion for Costs, Reasonable Attorney Fees, and Expenses. ECF #29. The motion should be denied for the reasons set forth below.


         On March 28, 2017, plaintiff Lawrence Alcorn (hereafter “plaintiff”) filed a complaint against the four original defendants-Rick Perry (“Perry”), Larry Jackson, Sr. (“Jackson”), Sparkman, and Fairfield. Complaint, ECF #1. The claims stemmed from a $55, 000 hard-money loan that plaintiff obtained through Fairfield, a hard-money-loan broker who also collected on the loans. Id. ¶¶ 7-9. Plaintiff's loan was secured on property located at 6348 SE 85th Ave., Portland, Oregon. Id. ¶ 9.

         Plaintiff subsequently defaulted on the loan, and the loan was assumed by Perry who attempted to collect on it. Id. ¶ 10. Plaintiff hired a realtor to list the underlying property for sale, and notified Sparkman and/or Fairfield that he would pay off the balance of the loan through the sale of the property. Id. ¶ 12. Sparkman is a hard-money broker who shares the same address with Fairfield-5925 NE 23rd Ave. Id. ¶ 6. Sparkman and Jackson suggested that plaintiff sell the home quickly to Jackson, but plaintiff declined to sell the home below market. Id.

         On November 15, 2016, Perry filed a “Notice of Default, ” which stated that the pay-off amount had more than doubled to $123, 963, and that plaintiff's property would be sold in an “open market” foreclosure sale. Id. ¶ 15-16. Jackson served the notice of default on plaintiff on December 13, 2016. Id. ¶ 24.

         On January 27, 2017, Jackson contacted plaintiff at his home in an attempt to collect the debt. Id. ¶ 25. Jackson told plaintiff that, if he refused to work with him, plaintiff would lose his home. Id.

         Jackson returned to plaintiff's home on January 30, 2017, demanded to be allowed into plaintiff's home, and yelled and threatened him. Id. ¶ 26. When plaintiff told Jackson that he had retained an attorney, Jackson responded that he and Perry “have a lot of attorneys and they can deal with anything.” Id.

         On February 1, 2017, Jackson went to plaintiff's home again. While there, Jackson called Sparkman on the telephone. Id. ¶ 27. Sparkman spoke with plaintiff, telling him that Jackson was just trying to help plaintiff and that they did not want plaintiff to lose his home. Id.

         The following day, Perry called plaintiff's realtor and, when the realtor advised him to contact plaintiff's attorney, Perry said that if the house was not sold quickly, he would foreclose right away. Id. ¶ 29. Perry and Jackson continued to repeatedly threaten foreclosure that month. Id. ¶ 30-31.

         Plaintiff alleged six claims against all four defendants:

Claim One: Violation of Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692d-f, k. Complaint ¶¶ 42-44.
Claim Two: Violation of Oregon Unlawful Debt Collection Practices Act (“ODCPA”), ORS 646.639. Id. ¶¶ 45-47.
Claim Three: Invasion of Privacy by Intrusion Upon Seclusion. Id. ¶¶ 48-55.
Claim Four: Intentional Infliction of Emotional Distress. Id. ¶¶ 56-58.
Claim Five: Negligence. Id. ¶¶ 59-66.
Claim Six: Fraudulent Misrepresentation/Fraud/Deceit. Id. ¶¶ 67-74.

         On July 26, 2017, plaintiff voluntarily dismissed Perry and Jackson from the case. Notice of Dismissal of Party, ECF #18. Plaintiff voluntarily dismissed Sparkman and Fairfield on November 7, 2017. Stipulated Notice of Dismissal, ECF #24. Defendants Sparkman and Fairfield subsequently filed this motion for attorney fees on November 29, 2017. ECF #29.


         Defendants assert their motion pursuant to FRCP 54(d), contending that they are entitled to reasonable attorney's fees, costs, and expenses under 15 U.S.C. § 1692k and ORS 646.641(2). As discussed in detail below, defendants have failed to establish that plaintiff engaged in bad faith or harassing behavior as required under 15 U.S.C. § 1692k. The court should also decline to exercise its discretion to award fees under ORS 646.641(2) for reasons including that defendants have failed to distinguish the work they did on the OCDPA claim from work they did on other claims for which they are not entitled to fees.

         I. FRCP 54(d) and FRCP 41(a)(2)

         Rule 54(d)(2) of the Federal Rules of Civil Procedure provides, in relevant part:

A claim for attorney's fees . . . must be made by motion . . . . [T]he motion must be filed no later than 14 days after the entry of judgment [and] specify the judgment and the statute, rule, or other ...

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