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Schwoegler v. Reviver Financial LLC

United States District Court, W.D. Wisconsin

December 13, 2019



          JAMES D. PETERSON District Judge

         Plaintiff Debra Schwoegler accepted a $2, 000 offer of judgment, Dkt. 14, from defendants Reviver Financial LLC and Gurstel Law Firm P.C. on her claims under the Fair Debt Collection Practices Act (FDCPA) and the Wisconsin Consumer Act (WCA). Schwoegler now moves for an award of $19, 326.25 in attorney fees and $1, 730.64 in costs, Dkt. 17 and Dkt. 18, at 6, and for a supplemental award of $2, 188.50 in fees incurred on her brief in reply to defendant's brief in opposition, Dkt. 24, at 4-5. The court is persuaded that Schwoegler is entitled to all of the costs and most of the fees she seeks. The fees that Schwoegler incurred after defendants moved to dismiss a related state-court debt collection lawsuit were unnecessary, and the court will disallow those.


         Schwoegler moves for expenses under 15 U.S.C. § 1692k(a)(3), which provides for fee-and cost-shifting for a plaintiff who brings a successful action to enforce her FDCPA rights. The parties agree that Schwoegler is entitled to reasonable fees and costs and that the determination of a reasonable fee begins by calculating the lodestar, “the attorney's reasonable hourly rate multiplied by the No. of hours reasonably expended, ” Schlacher v. Law Offices of Phillip J. Rotche & Assocs., P.C., 574 F.3d 852, 856 (7th Cir. 2009). Defendants challenge Schwoegler's request on three grounds, contending that (1) the hourly rate sought by Briane Pagel, one of Schwoegler's attorneys, is too high; (2) Schwoegler isn't entitled to fees she incurred pursuing her right-to-cure claim, which alleged that her creditor had failed to send her a statutorily required notice of her right to cure her default; and (3) Schwoegler isn't entitled to a witness fee for a deposition that didn't occur.

         A. Briane Pagel's hourly rate

         Schwoegler seeks fees for the work of three attorneys and one paralegal at varying hourly rates, but the only rate that defendants challenge is Briane Pagel's $450 rate. Defendants argue that Pagel's hourly rate is inflated because FDCPA plaintiffs like Schwoegler are almost always represented under contingent fee agreements and would never pay an attorney $450 per hour over a relatively small debt like Schwoegler's. They say that their own counsels' hourly rates, which range between $150 and $375, are better evidence of what is reasonable. Dkt. 19, at 13.

         In support of Pagel's rate, Schwoegler relies on the following:

• Pagel has more than 20 years of legal experience. Dkt. 18, ¶ 11.
• Approximately 75 to 90 percent of Pagel's practice focuses on consumer protection, an area in which he lectures and writes extensively. Id., ¶¶ 16, 17.
• According to the U.S. Consumer Law Attorney Fee Survey Report, the median hourly rate in Wisconsin for a consumer lawyer with Pagel's experience is $475. Id., ¶ 22.
• Schwoegler signed a hybrid contingent fee agreement agreeing to pay $450 per hour for Pagel's work in addition to 25% of any award beyond attorney fees. Dkt. 18-5.
• When Pagel's clients pay him on an hourly basis, he bills them at an hourly rate of $450, and they pay him at that rate. Dkt. 24, ¶ 9. Schwoegler supports this statement with a billing log from a family law client showing that Pagel billed his time at $450 per hour and that his client paid him at that rate. Dkt. 24-5.
• Pagel has been awarded an hourly rate of $450 in two recent state-court cases. Dkt. 18, ¶ 21.

         Pagel has established a reasonable basis for his $450 hourly rate. As this court has explained, the most persuasive evidence that an hourly rate is reasonable is whether clients have actually paid it, either to the counsel seeking fees or to other comparable lawyers in counsel's market. Broome v. Kohn Law Firm, S.C., No. 18-cv-860, 2019 WL 1595864, at *2 (W.D. Wis. Apr. 15, 2019). Schwoegler has submitted both types of evidence to support Pagel's rate, so his rate is presumptively reasonable. See Boehm v. Martin, No. 15-cv-379, 2017 WL 5186468, at *5 (W.D. Wis. Nov. 8, 2017) (“[A]ctual billing rates . . . are presumptively reasonable.”) (citing Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 640 (7th Cir. 2011)). Alone, Schwoegler's fee agreement isn't convincing evidence that Pagel is really paid at an hourly rate of $450, as fee-shifting and contingency arrangements are the norm for plaintiffs' attorneys in FDCPA litigation. But Schwoegler has shown that Pagel's clients pay him $450 per hour for his work outside of the FDCPA. This is strong evidence that his fee is reasonable, as “[p]aying counsel in FDCPA cases at rates lower than they can obtain in the marketplace [for other types of cases] is inconsistent with the congressional desire to enforce ...

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