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Fair Credit Reporting: 12.7.4.1 The Buckhannon Decision

The entitlement to fees following settlement of cases involving fee-shifting statutes was thrown into some confusion by the Supreme Court’s decision in Buckhannon Board & Care Home, Inc. v. Dep’t of Health & Human Resources,949 even though the case itself did not involve a settlement agreement. In Buckhannon, the Court rejected decades of federal decisions that had awarded fees to plaintiffs as the prevailing party under the “catalyst” rule.

Fair Credit Reporting: 12.7.4.2 Implications of Buckhannon for Settlements

If a case is settled for a monetary payment and the District Court order of dismissal incorporates the terms of the settlement and retains jurisdiction over it, then even if the order does not include the actual terms of settlement, plaintiff is the prevailing party and there is a sufficient “judicial imprimatur” under Buckhannon to warrant an award of attorney fees.955 In the absence of such an explicit retention of jurisdiction or at least an acknowledgement in the settlement agreement that plaintiff’s counsel is entitled to an a

Fair Credit Reporting: 12.7.5 Rule 68 and Attorney Fee Awards

Rule 68 of the Federal Rules of Civil Procedure allows a defendant to serve upon the plaintiff an offer of judgment for a sum of money “with costs then accrued.” The plaintiff has fourteen days to accept the offer. If the plaintiff does not accept it, and then recovers judgment for less than the offer, the plaintiff must pay the costs incurred by defendant after the making of the offer; if plaintiff loses or recovers more than the offer, this provision is inoperable.

Fair Credit Reporting: 12.8 Quick Reference to Published Damage Awards

Some published damage awards are listed below. Note, too, that a spreadsheet containing additional information about many of these cases is available online as companion material to this treatise (search for “FCRA Verdicts, Settlements, and Judgments”). Also available is information about several other favorable awards.

Collection Actions: LOUISIANA

Has state opted out of federal bankruptcy exemptions? Yes. La. Rev. Stat. Ann. § 13:3881(B)(1).

Is opt out limited to residents or domiciliaries of the state? Not specified. La. Rev. Stat. Ann. § 13:3881(B)(1): “In cases instituted under [Title 11], there shall be exempt . . . only that property and income which is exempt under the laws of the state of Louisiana and under federal laws other than [§ 522(d)].”

Do state’s exemptions have extraterritorial application?

Collection Actions: MASSACHUSETTS

Has state opted out of federal bankruptcy exemptions? No.

Is opt out limited to residents or domiciliaries of the state? Not applicable.

Do state’s exemptions have extraterritorial application?

Collection Actions: NEVADA

Has state opted out of federal bankruptcy exemptions? Yes. Nev. Rev. Stat. § 21.090(3).

Is opt out limited to residents or domiciliaries of the state? Yes. Nev. Rev. Stat. § 21.090: “Any exemptions specified in [§ 522(d)], do not apply to property owned by a resident of this State . . . .”

Do state’s exemptions have extraterritorial application?

Collection Actions: NEW HAMPSHIRE

Has state opted out of federal bankruptcy exemptions? No.

Is opt out limited to residents or domiciliaries of the state? Not applicable.

Do state’s exemptions have extraterritorial application?

Collection Actions: NEW MEXICO

Has state opted out of federal bankruptcy exemptions? No.

Is opt out limited to residents or domiciliaries of the state? Not applicable.

Do state’s exemptions have extraterritorial application?

Homestead: Uncertain.

Personal property: Uncertain.

Wages: N.M. Stat. Ann. § 35-12-7.

Scope: Disposable earnings.

Collection Actions: NORTH CAROLINA

Has state opted out of federal bankruptcy exemptions? Yes. N.C. Gen. Stat. § 1C-1601(f).

Is opt out limited to residents or domiciliaries of the state? Yes. N.C. Gen. Stat. § 1C-1601(f): “The exemptions provided in [§ 522(d)], are not applicable to residents of this State. The exemptions provided by this Article and by other statutory or common law of this State shall apply for purposes of [§ 522(b)].”

Do state’s exemptions have extraterritorial application?

Collection Actions: NORTH DAKOTA

Has state opted out of federal bankruptcy exemptions? Yes. N.D. Cent. Code § 28-22-17.

Is opt out limited to residents or domiciliaries of the state? Yes. N.D. Cent. Code § 28-22-17: “Residents of this state are not entitled to the federal exemptions provided in [§ 522(d)]. The residents of this state are limited to claiming those exemptions allowable by North Dakota law.”

Do state’s exemptions have extraterritorial application?

Homestead: Uncertain.

Collection Actions: PUERTO RICO

Has state opted out of federal bankruptcy exemptions? No.

Is opt out limited to residents or domiciliaries of the state? Not applicable.

Do state’s exemptions have extraterritorial application?

Homestead: Uncertain.

Personal property: Uncertain.

Wages: P.R. Laws Ann. tit. 32, § 1130.

Scope: Earnings for personal services within 30 days before levy of execution. P.R. Laws Ann. tit. 32, § 1130(7).

Collection Actions: SOUTH CAROLINA

Has state opted out of federal bankruptcy exemptions? Yes. S.C. Code Ann. § 15-41-35.

Is opt out limited to residents or domiciliaries of the state? Not specified. S.C. Code Ann. § 15-41-35: “No individual may exempt from the property of the estate in any bankruptcy proceeding the property specified in [§ 522(d)] except as may be expressly permitted by this chapter or by other provisions of law of this State.”

Do state’s exemptions have extraterritorial application?

Collection Actions: TENNESSEE

Has state opted out of federal bankruptcy exemptions? Yes. Tenn. Code Ann. § 26-2-112.

Is opt out limited to residents or domiciliaries of the state? Yes (as to “citizens”). Tenn. Code Ann. § 26-2-112: “[C]itizens of Tennessee, . . . are not authorized to claim as exempt the property described in [§ 522(d)].”

Do state’s exemptions have extraterritorial application?

Homestead: Uncertain.

Personal property: Uncertain.

Collection Actions: TEXAS

Has state opted out of federal bankruptcy exemptions? No.

Is opt out limited to residents or domiciliaries of the state? Not applicable.

Do state’s exemptions have extraterritorial application?

Collection Actions: UTAH

Has state opted out of federal bankruptcy exemptions? Yes. Utah Code Ann. § 78B-5-513 (West).

Is opt out limited to residents or domiciliaries of the state? Yes. Utah Code Ann. § 78B-5-513 (West): “An individual may not exempt from the property of the estate in any bankruptcy proceeding property specified in [§ 522(d) unless the individual is a non-resident of this state and has been for the 180 days preceding the bankruptcy.”

Do state’s exemptions have extraterritorial application?

Collection Actions: VIRGINIA

Has state opted out of federal bankruptcy exemptions? Yes. Va. Code Ann. § 34-3.1.

Is opt out limited to residents or domiciliaries of the state? Not specified. Va. Code Ann. § 34-3.1: “No individual may exempt from the property of the estate in any bankruptcy proceeding the property specified in [§ 522(d)], except as may otherwise be expressly permitted under this title.”

Do state’s exemptions have extraterritorial application?

Collection Actions: WEST VIRGINIA

Has state opted out of federal bankruptcy exemptions? No. Solely for the purpose of applying the provisions of 11 U.S.C. § 522(b)(2) in a federal bankruptcy proceeding and only to the extent otherwise allowed by applicable federal law, an individual debtor domiciled in this state may exempt from property of the debtor’s bankruptcy estate the property specified under 11 U.S.C. § 522(d). W. Va. Code § 38-10-4(l).

Collection Actions: 18.1.1 Introduction

The American rule is that attorney fees are not recoverable absent contractual or statutory authority. This section sets out seven ways in which a prevailing consumer can receive an attorney fee award. In twenty states, there is explicit statutory authority for attorney fees for a prevailing consumer, at least in certain types of collection actions. In all states there are grounds for the award of fees to a prevailing consumer under certain circumstances.

Collection Actions: 18.1.2 Right to Fees Based upon the Contract

Parse the attorney fee provision in the credit contract if the collector or consumer has produced this contract for the court. Credit contracts typically provide for attorney fees only for a prevailing collector, but occasionally such contracts provide for fees for the prevailing party—i.e., the collector or the consumer. Any ambiguity as to whether an attorney fee provision applies only to a prevailing collector or to either party should be construed in the consumer’s favor, as the creditor has drafted the standard form contract.