Rolando SERNA, Plaintiff-Appellee, v. LAW OFFICE OF JOSEPH ONWUTEAKA, P.C.; Joseph Onwuteaka; Samara Portfolio Management, L.L.C., Defendants-Appellants.
No. 14-20574.
United States Court of Appeals, Fifth Circuit.
June 5, 2015.
614 Fed. Appx. 146
We AFFIRM.
Michael Earl Urena, Christina E. Trejo, Esq., Texas Riogrande Legal Aid, Incorporated, Houston, TX, for Plaintiff-Appellee.
Joseph Onwuteaka, Law Offices of Joseph Onwuteaka, Houston, TX, for Defendant-Appellant.
PER CURIAM:*
Defendants-Appellants Joseph Onwuteaka, the Law Office of Joseph Onwuteaka, P.C., and Samara Portfolio Management, L.L.C. (collectively “Onwuteaka“) appeal the district court‘s award of summary judgment and attorney‘s fees in favor of
I. FACTUAL AND PROCEDURAL BACKGROUND
This case centers on a debt-collection lawsuit filed by Onwuteaka against Serna in a distant venue contrary to the mandates of the FDCPA,
In June 2008, Serna electronically signed a promissory note with First Bank of Delaware for a loan of $2,525.00. The note provides that “[t]his Agreement is entered into ... in Delaware,” and at the time of contracting, Serna resided in San Antonio, Bexar County, Texas. According to a sworn affidavit, Serna entered into the loan “primarily for [his] own personal, family or household purposes.”
After Serna defaulted, Onwuteaka acquired the loan through his debt-collection company, Samara Portfolio Management, L.L.C., and sought to collect the debt through his law firm, the Law Office of Joseph Onwuteaka, P.C. In July 2010, four months after Onwuteaka first sent Serna a demand for payment, Onwuteaka sued Serna for breach of contract in a Harris County, Texas Justice of the Peace Court. The petition names Serna as the defendant and states that he may be served with process at 826 Saddlebrook Drive, San Antonio, Texas 78245—the same Bexar County address listed in Serna‘s original loan contract. Onwuteaka requested issuance of a citation on Serna at this address, and although Serna was successfully served with process in Bexar County, he made no appearance in the Harris County court. Onwuteaka moved for default judgment and secured an award of $2,600.00 in damages, $1,500.00 in attorney‘s fees, and $34.00 in court costs.
Onwuteaka then began attempts to collect on the Harris County default judgment via garnishment. Several months later, Serna filed suit in federal court against Onwuteaka for violations of the FDCPA and the Texas Deceptive Trade Practices Act (DTPA). Onwuteaka answered, raising a litany of affirmative defenses, and counterclaimed that Serna‘s suit was frivolous and brought in bad faith.1
A. The First Summary Judgment and Appeal
The parties agreed to proceed before a magistrate judge pursuant to
The magistrate granted summary judgment to Onwuteaka on Serna‘s FDCPA claims, concluding that the suit was barred by the FDCPA‘s one-year statute of limitations,
B. The Second Summary Judgment
Following remand, the magistrate indicated that it would reexamine Serna‘s motion for summary judgment. Because Onwuteaka originally had filed no opposition to Serna‘s motion,4 the magistrate permitted Onwuteaka to file a response. Onwuteaka‘s response consisted of six paragraphs. He objected to Serna‘s motion as “conclusionary [sic] as to all defendants” and to Serna‘s declaration as unsigned and “conclusionary“; he argued that Serna “failed to carry his burden” to adduce “evidence of where the contract made the basis of the underlying suit was signed” and was unresponsive to discovery seeking such evidence; he invoked the bona fide error defense of
The magistrate held a hearing on Serna‘s motion in December 2013. The day after the hearing, Onwuteaka moved for leave to supplement his summary judgment response in order to “clarify” his bona fide error defense. He included a computer printout that appears to track the status of Serna‘s loan, as well as a sworn statement describing both his reasons for filing suit in Harris County and the procedures his office maintains to
In January 2014, the magistrate granted summary judgment to Serna by written order. Although Serna admitted that he had sustained no actual damages, he sought—and the magistrate awarded—the maximum amount of statutory damages ($1,000.00), in addition to reasonable costs and attorney‘s fees. Onwuteaka moved for reconsideration, citing the inadequacy of Serna‘s declaration to prove “consumer” status under the FDCPA, his entitlement to offsets and credits, and his invocation of the bona fide error defense. The magistrate denied the motion “[b]ecause the Court‘s Order Granting Summary Judgment has already addressed the arguments raised by the Defendants.”
C. The Attorney‘s Fees Award
Serna next moved for attorney‘s fees and costs, appending declarations by counsel and itemized billing records. Onwuteaka objected to the motion, moved to strike “plaintiff‘s attorney‘s fees claim and/or his experts” for failure to designate expert witnesses and list attorney‘s fees as an element of damages in discovery, and requested a hearing on the motion. Although the magistrate overruled Onwuteaka‘s objections, it held a hearing on attorney‘s fees in which both Onwuteaka and Serna‘s counsel testified, and Onwuteaka examined Serna‘s counsel as an adverse witness. Both parties orally moved to designate their attorney‘s fees experts at the close of the hearing, and both parties filed supplemental briefing after the hearing.6 Applying the Fifth Circuit‘s two-step lodestar framework, the district court found, over Onwuteaka‘s objections, that Serna‘s counsel was entitled to $72,133.50 in fees and $939.95 for costs.
Following the entry of final judgment, Onwuteaka filed a motion styled “Motion for Rehearing and/or for New Trial.” Onwuteaka made four arguments: (1) the magistrate erred in overruling Onwuteaka‘s objection to Serna‘s motion for attorney‘s fees because Serna stated, in response to a request for admission, that “he has no document that shows the damages he has suffered“; (2) Serna “waived his right” to litigation due to the arbitration clause in the promissory note, and the magistrate erroneously concluded in its summary judgment order that the note contained no such clause; (3) the magistrate “erred in failing to find that there was no evidence of the judicial district where [Serna] signed the promissory note“; and (4) the magistrate “erred in failing to find that ‘bring an action’ under
II. JURISDICTION
The district court had federal question jurisdiction over Serna‘s FDCPA claims pursuant to
III. DISCUSSION
Onwuteaka purports to raise seven claims of error. Six of these claims per-
Additionally, because Onwuteaka‘s brief is often conclusory and lacking in citations to binding authority, we deem it appropriate to review our standards for adequate briefing before proceeding to the merits of Onwuteaka‘s claims.
A party that asserts an argument on appeal, but fails to adequately brief it, is deemed to have waived it. It is not enough to merely mention or allude to a legal theory. We have often stated that a party must “press” its claims. At the very least, this means clearly identifying a theory as a proposed basis for deciding the case—merely intimat[ing] an argument is not the same as “pressing” it. In addition, among other requirements to properly raise an argument, a party must ordinarily identify the relevant legal standards and any relevant Fifth Circuit Cases.
599 F.3d at 446-47 (citations and internal quotation marks omitted). With these principles in mind, we turn to Onwuteaka‘s arguments.
A. The Summary Judgment for Serna on the FDCPA Claims
We review the “grant of summary judgment de novo, applying the same legal standards as the district court.” Am. Home Assurance Co. v. United Space Alliance, LLC, 378 F.3d 482, 486 (5th Cir. 2004). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Onwuteaka‘s objections to summary judgment fit into two broad categories: challenges to the evidence supporting Serna‘s prima facie case and arguments on the merits of Onwuteaka‘s affirmative defenses.
1. Serna‘s Prima Facie Case
Onwuteaka first asserts that there was insufficient evidence on two of the four elements of Serna‘s prima facie FDCPA case to support the grant of summary judgment. To make out a claim for venue abuse under the FDCPA, Serna must show that (1) Onwuteaka is a “debt collector“; (2) Onwuteaka brought “a legal action on a debt“; (3) Serna is a “consumer,” meaning that he is “obligated to pay [a] debt” incurred “primarily for personal, family, or household purposes“; and (4) Onwuteaka‘s debt-collection suit was not brought in a venue “in which [Serna]
“When seeking summary judgment, the movant bears the initial responsibility of demonstrating the absence of a genuine issue of material fact with respect to those issues on which the movant bears the burden of proof at trial.” Transamerica Ins. Co. v. Avenell, 66 F.3d 715, 718 (5th Cir. 1995). The movant discharges this burden by making out “a prima facie case that would entitle [it] to judgment as a matter of law if uncontroverted at trial.” 10A Charles Alan Wright et al., Federal Practice & Procedure § 2727 (3d ed. 2015); accord Anderson, 477 U.S. at 250 (“[T]his standard mirrors the standard for a directed verdict under [Rule 50(a)], which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict.“). If the movant succeeds, “the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). “This burden is not satisfied with some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.” Id. (citations and internal quotation marks omitted). To the contrary, the nonmovant must not only “identify specific evidence in the record,” but also “articulate the ‘precise manner’ in which that evidence support[s] their [position].” Willis v. Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014) (quoting Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994)).
Moreover, “[t]his court has regularly reminded litigants that ‘Rule 56 does not impose upon the district court [or the court of appeals] a duty to sift through the record in search of evidence to support a party‘s opposition to summary judgment.‘” Id. (quoting Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998)).
With regard to the third element—Serna‘s consumer status—Serna presented a sworn declaration stating, “I entered into a contract with First Bank of Delaware primarily for my own personal, family or household purposes.” Onwuteaka objected to this declaration as “consist[ing] of conclusionary statements that are not proper summary judgment evidence,” but he cited no law to support his argument.7 Although Onwuteaka continued to press his objection at the hearing on Serna‘s motion, he still cited no authority for the proposition that Serna‘s declaration was not competent summary judgment evidence; instead, he contended that Serna‘s discovery responses were inadequate and affirmed that he wanted to take Serna‘s deposition. The magistrate overruled Onwuteaka‘s objection, noting that Onwuteaka not only had failed to adduce legal support for his argument, but also had neglected to depose Serna or to compel responses before the
We disagree and hold that Serna discharged his burden on summary judgment to present evidence establishing his consumer status.8 This Court has recognized that, as a general matter, “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.” Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985). However, we cannot say that the statements in Serna‘s declaration fall into these categories, and Onwuteaka gives us no legal basis to so conclude. As a preliminary matter, Serna based his declaration on his own personal knowledge concerning the reasons for the loan—a subject plainly within his competence. See
Moreover, as Serna points out, there is other evidence in the summary judgment record that the loan was for personal, rather than business, purposes. For instance, the loan was for a small amount ($2,600.00) and was deposited directly into Serna‘s personal bank account. In addition, Serna swore in response to an interrogatory that he owned no businesses during the relevant time period. Accordingly, Serna discharged his initial burden to make out a prima facie showing of the element of consumer status, see Anderson, 477 U.S. at 250, and the burden shifted to Onwuteaka to “go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial,” Little, 37 F.3d at 1075. This Onwuteaka concededly could not do.
As to the fourth element—improper venue—Serna cites the loan contract, his sworn declaration, and Onwuteaka‘s own litigation documents to show that Harris County was a distant venue for a debt-collection suit within the meaning of the FDCPA. The loan contract provides that “[t]his Agreement is entered into between you and me in Delaware,” and Serna‘s sworn declaration and the litigation records reflect that Serna resided in San Antonio both when he signed the contract and when Onwuteaka commenced the Harris County action. Onwuteaka identifies no contrary evidence, electing instead to
Onwuteaka‘s arguments are unavailing. The absence of a physical contract bearing Serna‘s signature is immaterial, as there is no dispute that the parties entered the contract electronically. See Anderson, 477 U.S. at 248. Although Serna may have had multiple addresses of record, none were in Harris County.9 Moreover, Serna presented uncontroverted evidence—including Onwuteaka‘s own pleadings—that he lived in San Antonio on the date listed in the contract and the date Onwuteaka initiated legal proceedings in Harris County. To the extent that Onwuteaka complains that Serna‘s nonresponsive discovery obstructed his efforts to elicit evidence concerning Serna‘s precise physical location at the operative times, the proper course would have been to file a motion to defer ruling pending additional discovery under
In sum, Serna discharged his burden on summary judgment to point to evidence of an improper venue that, if uncontroverted, would entitle him to a directed verdict. See id. at 250. Onwuteaka did not, in turn, “identify specific evidence in the record” showing a genuine issue for trial, Willis, 749 F.3d at 317; to the contrary, his response, at best, points to only “metaphysical doubt as to the material facts,” Little, 37 F.3d at 1075. We therefore agree with the district court that there was no genuine dispute of material fact as to each element of Serna‘s FDCPA case and that Serna was entitled to judgment as a matter of law.
2. Onwuteaka‘s Affirmative Defenses and Counterclaim
Onwuteaka raised nine affirmative defenses in his answer to Serna‘s suit. The magistrate found no merit in any of these claims, and only four are at issue in this appeal: the affirmative defenses of waiver, bona fide error, and limitations, and the counterclaim for offsets and credits.
As before, we review the district court‘s ruling de novo. Exxon Corp. v. Oxxford Clothes, Inc., 109 F.3d 1070, 1074-75 (5th Cir. 1997). The familiar summary judgment burden-shifting scheme “does not vary where [the movant] is the plaintiff challenging [the nonmovant‘s] affirmative defense“; because the nonmovant “bears the ultimate burden of persuasion at trial on its [affirmative defense], it must (provided [the movant] has met its summary judgment burden) present admissible evidence legally sufficient to sustain a finding favorable to [it] on each element of that defense.” Id. at 1074. Correspondingly, the movant “should be able to obtain summary judgment simply by disproving the existence of any essential element of the opposing party‘s claim or affirmative defense.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986).
Onwuteaka first contends that Serna “waived his right to this suit by agreeing to arbitration.” The parties do not dispute that the loan contract between Serna and First Bank of Delaware contains an arbitration clause. They disagree, however, on whether Onwuteaka waived any right to arbitration by neglecting to move to compel arbitration and by invoking the judicial process to Serna‘s detriment or prejudice. We need not resolve this dispute, as we conclude that Onwuteaka has waived this claim of error through inadequate briefing. The entirety of Onwuteaka‘s briefing on arbitration comprises five sentences, with one citation—to a 1943 decision by the Eastland Court of Civil Appeals that defines waiver—and no reference to the exact text of the clause. He makes no argument that the arbitration clause covers Serna‘s FDCPA claim—an issue that the district court had no occasion to pass on because Onwuteaka never moved to compel arbitration nor even consistently invoked the clause. As a result, this issue is waived. See Scroggins, 599 F.3d at 446-47; see also XL Specialty Ins. Co. v. Kiewit Offshore Servs., Ltd., 513 F.3d 146, 153 (5th Cir. 2008) (“To preserve an argument, it must be raised to such a degree that the trial court may rule on it.” (internal quotation marks omitted)).
b. Bona Fide Error
Onwuteaka next asserts that the district court erroneously denied his statutory affirmative defense of bona fide error. The FDCPA provides that “[a] debt collector may not be held liable in any action brought under this subchapter if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.”
Onwuteaka‘s argument is not only meritless, but frivolous and sanctionable. Onwuteaka‘s sole authorities for the premise that mistakes of law qualify for the bona fide error defense are Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 538 F.3d 469 (6th Cir. 2008), and Taylor v. Luper, Sheriff & Niedenthal Co., L.P.A., 74 F. Supp. 2d 761 (S.D. Ohio 1999). The Supreme Court granted certiorari in Jerman and ultimately reversed the Sixth Circuit on precisely this point. See Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 130 S. Ct. 1605, 1624-25, 176 L. Ed. 2d 519 (2010) (holding that “the bona fide error defense in
c. Statute of Limitations
Onwuteaka attempts to circumvent this Court‘s ruling in the first appeal that Serna‘s suit was timely, Serna, 732 F.3d at 449-50, by raising a new legal argument concerning the meaning of the phrase “may be brought” in
d. Offsets and Credits
Lastly, Onwuteaka avers that the district court erred in denying his counterclaim for offsets and credits, which he originally cast as an affirmative defense.12 The magistrate held that no authority supported Onwuteaka‘s request that the state-court default judgment “be balanced against the statutory award granted to Serna in this case.” Onwuteaka does not now point to any authority on which the district court could have enforced the state-court judgment. To the contrary, two of the three cases he cites center on offsets or “setoffs” in bankruptcy, see NVF Co. v. New Castle Cnty., 276 B.R. 340, 348 (D. Del. 2002); Zerodec Megacorp, Inc. v. Terstep of Tex., Inc. (In re Zerodec Megacorp, Inc.), 60 B.R. 884, 886-87 (E.D. Pa. 1985), and the remaining case pertains to
As Onwuteaka has failed to identify a genuine dispute of material fact on any of the elements of Serna‘s prima facie case, and has been unable to present legally sufficient evidence to sustain his defenses, we find no reversible error in the district court‘s grant of summary judgment to Serna.
B. The Award of Attorney‘s Fees and Costs to Serna
“A district court‘s determination of attorneys’ fees is reviewed for abuse of discretion, and the findings of fact supporting the award are reviewed for clear error.” Black v. SettlePou, P.C., 732 F.3d 492, 496 (5th Cir. 2013) (internal quotation marks omitted). In this Circuit, attorney‘s fees are calculated using the two-step lodestar method. Id. at 502. First, the court calculates the lodestar “by multiplying the number of hours an attorney reasonably spent on the case by an appropriate hourly rate, which is the market rate in the community for this work.” Id. “Determinations of hours and rates are questions of fact.” La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995) (per curiam). Second, once the court has ascertained the lodestar, it may “enhance or decrease the amount of attorney‘s fees based on the relative weights of the twelve factors set forth” in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87, 109 S. Ct. 939, 103 L. Ed. 2d 67 (1989). Black, 732 F.3d at 502 (internal quotation marks omitted). Adjustments to the lodestar are reviewed for abuse of discretion, and we “inspect the district court‘s lodestar analysis only to determine if the court sufficiently considered the appropriate criteria.” La. Power & Light Co., 50 F.3d at 329.
After soliciting billing records and receiving testimony at a hearing, the magistrate calculated the lodestar to be $72,133.50. This was the product of “reasonable hourly rates” of $250 and $300 for Serna‘s attorneys and roughly 246 hours reasonably spent prosecuting the case (including a 10% reduction on the 273 hours claimed by counsel, based on a lack of evidence of billing judgment). The magistrate declined Serna‘s request for an enhancement to the lodestar amount, and it rejected Onwuteaka‘s challenges to the same.
Before this Court, Onwuteaka advances five challenges to the attorney‘s-fees award. First, he contends that Serna‘s expert witnesses—his attorneys—should have been excluded under
Second, Onwuteaka asserts that Serna “failed to produce contemporaneous records to substantiate his claim for attorney‘s fees.” As a preliminary matter, this Court has expressly held that “[f]ailing to provide contemporaneous billing statements does not preclude an award of fees per se, as long as the evidence produced is adequate to determine reasonable hours.” La. Power & Light Co., 50 F.3d at 325. Onwuteaka does not argue that the records Serna ultimately provided to the magistrate are inadequate to calculate the lodestar. Rather, his position seems to be that because Serna admitted in preliminary discovery that he had no records documenting his attorney‘s fees and he did not subsequently correct this admission, he remains bound by the original discovery response and could not later controvert it in the hearing.
We are not persuaded. The discovery Onwuteaka cites was conducted in 2012, at the outset of the litigation and fully two years before Serna won summary judgment. While Serna could have formally supplemented his original discovery responses to include his attorney‘s-fee records, Onwuteaka never brought these perceived deficiencies in discovery to the district court‘s attention before he moved to strike Serna‘s evidence at the attorney‘s-fee hearing. Moreover, by the day of the hearing, Onwuteaka had been in possession of Serna‘s motion for fees and supporting documentation for thirty-nine days. Coupled with the evidence that Onwuteaka was on notice from the inception of the suit that Serna sought attorney‘s fees, the magistrate found that Onwuteaka was not prejudiced by any potential violation of Rules 26 and 37. Onwuteaka makes no claim that this finding was clearly erroneous or that the district court‘s ruling amounted to an abuse of discretion, see O‘Neill, 74 F.3d at 95, and, as before, our review of the record is not to the contrary.
Third, Onwuteaka claims that the hourly rate determined by the magistrate is clearly erroneous in light of Serna‘s attorneys’ conceded “lack of experience” in FDCPA matters. Onwuteaka‘s sole authority for this point is a Tenth Circuit case finding error in an award of fees based on counsel‘s billing rate rather than on the prevailing market rate. See Beard v. Teska, 31 F.3d 942, 956-57 (10th Cir. 1994), abrogated on other grounds by Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep‘t of Health & Human Res., 532 U.S. 598, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001). Onwuteaka‘s reliance on Beard is misplaced. Unlike in the district court in Beard, which summarily accepted counsel‘s billing rate without reference to market norms, 31 F.3d at 957, the magistrate here expressly found that the claimed hourly rates of $250 and $300 were reasonable for attorneys of counsel‘s skill and expertise practicing in the relevant region. The magistrate based this determination on affidavits submitted by counsel, “as well as the Court‘s own experience in the relevant community, case law[,] and other authorities.” Onwuteaka provides no reason to conclude that these particular findings were clearly erroneous, and we are not left with the requisite “definite and firm conviction that a mistake has been committed.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985).
Finally, Onwuteaka avers in conclusory fashion that Serna “should [not] be entitled to attorney‘s fees given that he sustained no damages and that this was a fraudulent account.” This argument ignores the critical fact that Serna was awarded statutory damages. See Johnson v. Eaton, 80 F.3d 148, 151 (5th Cir. 1996) (“The language of the statute places explicit conditions on ... attorney‘s fees[,] which are only available where the plaintiff has succeeded in establishing that the defendant is liable for actual and/or additional damages.” (emphasis added)).14 Moreover, insofar as this or any of Onwuteaka‘s other challenges can be interpreted as advocating further adjustments to the lodestar, we note that the district court considered all relevant Johnson factors—e.g., the attorney‘s skill, the customary fee in the community, the amount involved, and the results obtained—and thus did not abuse its discretion. See La. Power & Light Co., 50 F.3d at 329-31.
We find no reversible error in Serna‘s attorney‘s-fee award.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court‘s judgment. In light of Onwuteaka‘s persistently deficient briefing and misrepresentation of legal authority, we tax the costs of this appeal against Onwuteaka consistent with