Christopher Ceresko v. Lvnv Funding, LLC

*114 MEMORANDUM *

Christopher Ceresko appeals the district court’s award of attorneys’ fees and costs, pursuant to 15 U.S.C. § 1692k(a)(3) of the Fair Debt Collection Practices Act (FDCPA), to LVNV Funding, LLC; Gur-stel, Staloch & Chargo, P.A.; and Ruth A. Fischetti (Defendants). We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

The FDCPA provides that, “[o]n a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney’s fees reasonable in relation to the work expended and costs.” 15 U.S.C. § 1692k(a)(3). We review the district court’s finding of bad faith and harassment for clear error and the court’s grant of attorneys’ fees for abuse of discretion. Guerrero v. RJM Acquisitions LLC, 499 F.3d 926, 933 (9th Cir.2007).

The district court found that Ceresko’s underlying FDCPA action was brought in bad faith and for the purpose of harassment, because (1) the district court had previously concluded that Ceresko’s allegations failed to establish a violation of the FDCPA in the underlying action; (2) Cer-esko’s counsel “suffered the same result in three previous lawsuits…

dissenting:

I dissent. The “least sophisticated debt- or,” the standard for establishing a violation of the Fair Debt Collection Practices Act (“FDCPA”), see Guerrero v. RJM Acquisitions LLC, 499 F.3d 926, 934 (9th Cir.2007), would likely have been misled by the inclusion of two separate paragraphs in the collection complaint, one (Paragraph 9) stating that “the prevailing party will be entitled to an award of all costs” and the second (Paragraph 10) stating that “Court costs as actually incurred are chargeable to [the debtor].” The collection complaint provided no information that the second paragraph was true only if the creditor was the “prevailing party.” Ceresko therefore presented a “minimally color-able” claim, and the district court clearly erred in finding that his FDCPA action was brought in bad faith and for the purpose of harassment. See id. at 940-41 .

Moreover, the district court clearly erred in finding that Ceresko’s counsel “suffered the same result in three previous lawsuits involving different plaintiffs making the same claim.” Two of the cases cited by the district court to support its holding, Cisneros v. Neuheisel Law Firm, 2008 WL 65608 (DAriz. Jan. 3,…

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT MAY 30 2012

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

CHRISTOPHER CERESKO, No. 11-15456

Plaintiff-counter-defendant - D.C. No. 2:09-cv-00483-ECV Appellant,

v. MEMORANDUM*

LVNV FUNDING, LLC; GURSTEL,

STALOCH & CHARGO, PA; RUTH A.

FISCHETTI,

Defendants-counter-claimants - Appellees.

Appeal from the United States District Court for the District of Arizona Edward C. Voss, Magistrate Judge, Presiding

Argued and Submitted May 15, 2012 San Francisco, California

Before: REINHARDT, CLIFTON, and N.R. SMITH, Circuit Judges.

Christopher Ceresko appeals the district court’s award of attorneys’ fees and

costs, pursuant to 15 U.S.C. § 1692k(a)(3) of the Fair Debt Collection Practices

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Act (FDCPA), to LVNV Funding, LLC; Gurstel, Staloch & Chargo, P.A.; and

Ruth A. Fischetti (Defendants). We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.

The FDCPA…