Hernandez v. Asset Acceptance, LLC
2012 WL 447545
D. Colo.2012Background
- Plaintiff sues under the FDCPA for information disclosed to Experian about a disputed debt.
- Plaintiff seeks statutory damages, costs, and reasonable attorney’s fees under 15 U.S.C. § 1692k.
- Defendant timely offers Rule 68 judgment of $1,251 plus accrued costs and fees, but limits fees to those accrued before the offer.
- Plaintiff does not accept the offer within 14 days; later requests a new offer without the “now accrued” limitation.
- Defendant moves to dismiss under Rule 12(b)(1) arguing the offer moots the case for lack of a case or controversy.
- Court holds that complete relief under the FDCPA includes post-offer attorney’s fees, so the offer does not moot the case.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the Rule 68 offer moot the FDCPA claim? | Offer exceeds maximum damages but omits post-offer fees. | Offer provides complete relief, mooting the claim. | Offer does not moot; post-offer fees required for complete relief. |
| Are post-offer attorney’s fees recoverable and includable in complete relief under the FDCPA? | Fees incurred after the offer should be recoverable as part of relief. | Only accrued fees at the time of the offer should be included. | Post-offer attorney’s fees are recoverable; must be included in complete relief. |
| Does the Court retain subject-matter jurisdiction if only a fee dispute remains? | Plaintiff retains a cognizable interest in fees; jurisdiction should remain. | Once relieved, no live dispute remains; case moot. | Jurisdiction remains; case not moot because plaintiff retains a fee interest. |
Key Cases Cited
- Marek v. Chesny, 473 U.S. 1 (Supreme Court 1985) (Rule 68 aims to encourage settlement; costs defined by applicable statutes)
- Deposit Guaranty Nat’l Bank v. Roper, 445 U.S. 326 (Supreme Court 1980) (Acceptance need not meet all relief requested; complete relief concept used)
- Sandoz v. Cingular Wireless, LLC, 553 F.3d 913 (5th Cir. 2008) (Completeness of offer and mootness discussed for FDCPA claims)
- Lucero v. Bureau of Collection Recovery, Inc., 639 F.3d 1239 (10th Cir. 2011) (Other circuits acknowledge complete relief can moot claims when offer satisfies)