United States District Court, W.D. Wisconsin
OPINION AND ORDER
D. PETERSON District Judge
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.
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
Briane Pagel's hourly rate
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.
support of Pagel's rate, Schwoegler relies on the
â¢ Pagel has more than 20 years of legal experience. Dkt. 18,
• 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.,
• 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.
â¢ Pagel has been awarded an hourly rate of $450 in two recent
state-court cases. Dkt. 18, ¶ 21.
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 ...