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FDCPA suit attorney fee question


ar4966
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Hey guys. .. I'm about to have an fdcpa suit filed against a creditor. However, the attorney wants me to sign a retainer for him to receive attorney fees plus 33 percent of what i recover. .. is this standard? I thought attorney fees are sufficient.....i could be wrong. ... i just wouldn't want to screwed over. ..could someone help me please.

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I'd talk to a couple other attorneys in your area and see what they charge.

 

33% is standard for personal injury cases, but even there it's not fees plus 33% of what ever you recover.  In an FDCPA case, the plaintiff attorney is theoretically getting paid his full amount of fees by the other party.  I see no reason he should ask for another 33%.

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You may be dealing with someone that has very little FDCPA experience. Most of these attorneys will only take a case if they think they can win. You will normally get a maximum of 1K and they get the rest. So if you settle for 2,500.00 they get 1,500 minus around 500.00 in cost. If you settle for 5K they get 4k minus around 500. in cost. Most of these never go to trial and the amount will depend on how strong your case is and how good they are at negotiating. 

 

The only variable most people run into is who pays the fees up front. The expenses are usually limited to the filing fee and the service fees, which is where I come up with an average of 500. If you have a strong case and you are dealing with an experienced FDCPA attorney more than likely they will pay the fees. I would only deal with an attorney that fronts the fees. That way they have more motivation to win. 

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I met with a local NACA attorney late yesterday about a case I have and asked him the question and it has NOTHING to do with lack of experience or being greedy.  His retainer is worded the same way and here is why:

 

His firm fronts ALL the fees and their legal work at no expense to the client.  If they win the case OR the defendant settles and does include their attorney fees in the settlement check they do not take the 33%.  The 33% clause is in there so if they sue fronting court fees and their time and the case settles for the statutory minimum of $1000 but no fees at all then they get 33% of the thousand to cover as much of the expense as possible.  He stated to date they have not had to exercise the 33% clause.

 

Simply ask your firm if this is the case and they should be more than willing to explain it to you.  Mine was.

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@ar4966

 

It's not necessarily a simple thing to determine, depending on the case and the attorneys involved. Here is an instructive case: 

 

http://www.warnerlawllc.com/uploads/51_Burton_v._Mary_Jane_M._Elliott__P.C..pdf

 

"Defendants refute many of the attorneys’ billing entries as duplicative, “unreasonable,
overstated and/or unnecessary.” (Dkt. #49 at 4.) Defendants’ argument includes specific objections
to particular billing entries for each attorney. (Id. at 11-14.) Defendants do not argue, however, that
$300 per hour is an unreasonable hourly rate for representation in this matter.
To determine reasonable attorney’s fees and costs, this Court will use the lodestar method. 
The lodestar method of fee calculation is the method by which federal courts should determine
reasonable attorney’s fees under federal statutes which provide for such fees. In re Boddy, 950 F.2d
334, 337 (6th Cir. 1991); see Perdue v. Kenny A., 130 S.Ct. 1662, 176 L. Ed. 2d 494 (2010)
(upholding the lodestar approach). Here, the claims arose under the Fair Debt Fair Collections
Practices Act (“FDCPA”). 
The "lodestar figure" is the product of the number of hours reasonably expended on the
litigation multiplied by a reasonable hourly rate. See Wayne v. Vill. of Sebring, 36 F.3d 517, 531
(6th Cir. 1994) (citing Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 1939 (1983)). 
Hours that are duplicative, excessive, or otherwise unnecessary should be excluded from the initial
fee calculation. Hensley, 461 U.S. at 434, 103 S. Ct. at 1939-40. After determining the lodestar
figure, a court should determine whether the fee should be adjusted in light of the results obtained. 
Id. at 434, 103 S. Ct. at 1940. The party seeking an award of fees has the burden of proving that his
request is reasonable. See Perry v. Keulian, No. Civ. A. 96-1374, 1997 WL 459971, at *1 (E.D. Pa.
July 25, 1997) (citing Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990))."
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Was this in writing?

If not, I wouldn't just take the off-the-record word of attorney I've never worked over the agreement in writing.

 

Which part of written retainer agreement did you not understand?  I do not hire ANY attorney without the fee agreement in writing.

 

I have hired several attorneys over the years and am well skilled at reading a retainer agreement.  If I don't understand a clause I get it explained.  This attorney actually gave me a copy and told me to read it and get back to them with anything I didn't understand before signing.  I am NOT worried about their representation as their conduct has been completely transparent.  

 

The bottom line is the clause was not as either you or Art Vandelay simply GUESSED at what it meant.  I actually ASKED a consumer attorney to explain the purpose to me instead of assuming.  

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Which part of written retainer agreement did you not understand?

The part where you said you "asked" the attorney why he had a 33% clause in his agreement and his response was "stated" to you. If you had said the explanation was in writing I obviously would not have asked the question.

While you may have personal knowledge about what was written in the agreement used in your situation, and it may seem like common sense to you, none of the rest of us know that information.  Contrary to the portrayal you tried to make in your follow-up barrage, the fact is that you did not say the part of your original post that I quoted was included in the written agreement.

Look, I've said this to you in the past. Not everything is an attack and not everything is about YOU. Sometimes people (like me) use things you say to clarify things for OTHER people. Take a chill pill.

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Look, I've said this to you in the past. Not everything is an attack and not everything is about YOU. Sometimes people (like me) use things you say to clarify things for OTHER people. Take a chill pill.

 

It is too a personal attack.  You follow me around and cherry pick posts to make snarky comments on because you don't like the fact that I post based on reality and not just what people want to hear as you do.  You also resent that you have lost your lawsuits and I have had a lot more success with my credit issues.

 

The bottom line is you simply guessed at why the attorney retainer fee the OP asked about had a 33% clause.  When I was presented with one I asked him to explain it and we went over it line by line.  When I realized it was similar to the question the OP asked I looked up the thread and answered.  You just aren't happy that I actually researched it and got a more accurate answer than your guess.  I felt clarifying your GUESS as to why this retainer is written that way was way more important than you splitting hairs over whether mine was in writing or not.  The OPs is and that is all that matters to them.

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The bottom line is the clause was not as either you or Art Vandelay simply GUESSED at what it meant.  I actually ASKED a consumer attorney to explain the purpose to me instead of assuming.  

 

Its true I was guessing what the OP asked because I don't know the situation or the attorney involved. I don't know how anyone else would know exactly without seeing a copy of the contract. I have looked over several agreements and seen some where the attorney would pretty much get everything under certain circumstances. Not to mention some of these attorneys just offer a generic agreement that they use on all types of case. I was only offering my opinion with limited information. 

Winning/settling an FDCPA claim has two major steps in my opinion. The first is doing what it takes to beat the JDB/CA and the second is making sure you get the proper amount from the attorney. A lot of factors can be involved in these settlements and the way things are divided are between you and your attorney. Its not all black and white in a settlement. Of course if you go to trial the guidelines will be more cut and dry.

 

It sounds like you are on the right track with the attorney you spoke with. The fact that they are willing to pay the fees/expenses is what I always require. Its also helpful when they let you take the contract home. That way you can negotiate what you don't like before you sign. 

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It is too a personal attack.  You follow me around and cherry pick posts to make snarky comments on because you don't like the fact that I post based on reality and not just what people want to hear as you do.  You also resent that you have lost your lawsuits and I have had a lot more success with my credit issues.

 

The bottom line is you simply guessed at why the attorney retainer fee the OP asked about had a 33% clause.  When I was presented with one I asked him to explain it and we went over it line by line.  When I realized it was similar to the question the OP asked I looked up the thread and answered.  You just aren't happy that I actually researched it and got a more accurate answer than your guess.  I felt clarifying your GUESS as to why this retainer is written that way was way more important than you splitting hairs over whether mine was in writing or not.  The OPs is and that is all that matters to them.

You're off your rocker. I have no idea what your success rate is because I just don't care that much about what you post, except for when it is misleading or flat out false. You cannot compare our success rates anyway. We can compare notes when you win against a JDB in my justice court.

You have this delusion that people follow you around just to see what you're going to post next, like you're some kind of celebrity. You said that to someone else (that bothered to correct your misinformation, by the way) and now you think I'm doing it. Perhaps I was asking a legitimate question. You would never know because you are constantly on the defensive. When you're not being offensive, that is. Get over yourself.

As far as "clarifying" my "guess", you realize all you did was take a guess also, right? Unless, that is, you have seen the actual agreement the OP is asking about. If you've seen THAT agreement please let me know and I'll eat my words. (I'll go ahead and order a pizza...)

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As far as "clarifying" my "guess", you realize all you did was take a guess also, right? 

 

NO I didn't.  I asked the attorney what the purpose to a clause worded that way was and he pulled out their retainer agreement and explained it in DETAIL.  I actually ASKED someone who drafts and uses that kind of agreement.  That is no where near guessing as you did.  In fact you simply assumed what the reason was with no fact checking what so ever.

 

Unless, that is, you have seen the actual agreement the OP is asking about. If you've seen THAT agreement please let me know and I'll eat my words. (I'll go ahead and order a pizza...)

 

Start eating because what part of my statement to the OP did you not understand:

 

Simply ask your firm if this is the case and they should be more than willing to explain it to you.  Mine was.

 

NO WHERE did I say their agreement was the same or that I had read it.  I simply said I posed the question to MY NACA consumer attorney and got the response I posted and ASKING their attorney if this was the same reason(s) as well should explain it.  Once again you try to twist my words to cover your ineptitude and the fact you answered with absolutely no research or clue as to why the attorney had that kind of retainer.  Then when someone else (worse in your mind ME) answered with facts it irritates you to no end.  That last part I kind of enjoy.

 

You argue just to argue.  It is time to put you on ignore with the other self absorbed trolls.

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NO I didn't.  I asked the attorney what the purpose to a clause worded that way was and he pulled out their retainer agreement and explained it in DETAIL.  I actually ASKED someone who drafts and uses that kind of agreement.  That is no where near guessing as you did.  In fact you simply assumed what the reason was with no fact checking what so ever.

He explained his agreement. So what? When you made your guess, you didn't know what the agreement in the OP's case actually said any more than I did. Which, by the way, makes you a hypocrite.

 

Start eating

Nope. I said if you knew what the agreement said and you don't.

(The pizza was delicious.)

It is time to put you on ignore with the other self absorbed trolls.

So you've been ignoring yourself! That answers a lot of questions.
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