By Richard Roth
A consumer who accepted a debt collector’s $2,500 offer of judgment in a Fair Debt Collection Practices Act suit could later ask for an award attorney fees and costs because nothing in the offer made clear that it was to include anything other than damages, according to a U.S. District Judge. An offer of judgment does not implicitly include attorney fees; instead, a clear and unambiguous waiver of the right to fees must be included as part of accepting the offer, the judge said (Williams v. Pinnacle Services, Inc.).
An award of a consumer’s reasonable attorney fees and costs is mandatory under the FDCPA, the judge pointed out. However, the consumer’s complaint did not explicitly ask for a fee award, and the offer of judgment did not say that it included a fee award. That could not result in a clear waiver of the consumer’s entitlement to attorney fees.
The judge also rejected the argument that the offer implicitly included fees because the $2,500 amount was $1,000 more than the statutory damages that the FDCPA permitted. The consumer had demanded actual damages, he said, and there was no proof that actual damages would have been unavailable.
The failure to make clear that the offer of judgment included attorney fees resulted in an additional $4,900 in fees and $437 in costs.
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