Welch v. Credit Adjustment ( 1998 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 3 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JEANE MARIE WELCH,
Plaintiff-Appellee,
v. No. 98-6077
(D.C. No. CIV-96-1509)
CREDIT ADJUSTMENT COMPANY (W.D. Okla.)
INC., an Oklahoma corporation;
LISA GIFFORD; MORGAN
& ASSOCIATES, P.C.,
Defendants-Appellants.
ORDER AND JUDGMENT *
Before BRORBY , BRISCOE , and LUCERO , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff brought an action against defendant pursuant to the Fair Debt
Collection Practices Act (FDCPA), alleging violation of that Act and various
other state laws. The district court granted summary judgment in favor of
defendant on all claims. 1
Thereafter, defendant filed a motion seeking an award
of attorney fees, which the district court denied. Defendant appeals the district
court’s order denying his motion for attorney fees.
The FDCPA provides for an award of attorney fees to a defendant upon a
finding by the district court that the action was brought in bad faith or for the
purpose of harassment. 15 U.S.C. § 1692k(a)(3). In this case, the district court
found that plaintiff did not bring the action in bad faith and neither did plaintiff
or her counsel act with the purpose of harassment. See App. at 307. We review
the district court’s denial of attorney fees for an abuse of discretion and its
application of the legal principles underlying the denial de novo. See Neustrom v.
Union Pac. R.R. , 156 F.3d 1057, 1067 (10th Cir. 1998). In the specific context of
15 U.S.C. § 1692k(a)(3), the review of the district court’s finding on the issue of
bad faith or harassment is for clear error. See Swanson v. Southern Or. Credit
Serv., Inc. , 869 F.2d 1222, 1229 (9th Cir. 1989). The record shows that the
district court’s findings were not clearly erroneous, and, therefore, the district
1
This court affirmed the district court’s grant of summary judgment. Welch
v. Credit Adjustment Co. , No. 97-6322, 1998 WL 670207 (10th Cir. Sept. 22,
1998) (unpublished).
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court did not abuse its discretion in denying defendant’s motion for attorney fees.
Therefore, we AFFIRM the order of the district court.
Entered for the Court
Wade Brorby
Circuit Judge
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