United States District Court, D. Oregon, Portland Division
LAWRENCE R. ALCORN, Plaintiff,
RICK L. PERRY, LARRY J. JACKSON, SR., GROVER W. SPARKMAN, and FAIRFIELD FINANCIAL SERVICES, INC., Defendants.
FINDINGS AND RECOMMENDATIONS
Yim You, United States Magistrate Judge
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
FRCP 54(d) and FRCP 41(a)(2)
54(d)(2) of the Federal Rules of Civil Procedure provides, in
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 ...