In Kropf v. TCA, Inc., — F.Supp.2d —-, 2010 WL 4722282 (E.D.Mich. 2010), Judge Lawson addressed whether a Plaintiff, who had filed suit against a debt collector and its president alleging violations of the FDCPA, should prevail on an FRCP 12(b)(6) motion as to debt collector’s counterclaim for attorney’s fees and costs. Judge Lawson noted that the FDCPA provides that, “on 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). However, Judge Lawson held that this section provided no separate counterclaim, explaining:
Although some courts have found that this statute authorizes a counterclaim for attorney’s fees, see Emanuel v. Am. Credit Exch., 870 F.2d 805, 809 (2d Cir.1989), the majority of cases to consider this issue have instead dismissed the counterclaim as premature or for lack of a statutory cause of action, permitting defendants to renew attorney’s fee requests at the conclusion of the case. See Hardin v. Folger, 704 F.Supp. 355, 356-57 (W.D.N.Y.1988) (dismissing the counterclaim because section 1692k(a)(3) “provides relief, but not a claim, to defendants” and noting that the decision to grant attorney’s fees was itself discretionary following a determination by the Court that the action was brought in bad faith); Kirscher v. Messerli & Kramer, P.A., No. 05-1901, 2006 WL 145162, at *7 (D.Minn. Jan.18, 2006) (dismissing the defendant’s counterclaim but permitting it to request attorney’s fees via a motion filed at a later stage in the proceedings); Young v. Reuben, No. 04-0113, 2005 WL 1484671, at *1-2 (S.D.Ind. June 21, 2005) (same); Taylor v. Frost-Arnett Co. of Tenn., No. 98-0564, 1998 WL 472052, at * 1 (E.D.La. Aug.5, 1998) (determining that “[t]he bad faith and harassment allegations of the counterclaim, even if proved, afford neither a defense to the merits of the case nor provide the defendant with a cause of action under the FDCPA,” and dismissing the defendant’s counterclaim without prejudice to the defendant filing a motion for attorney’s fees later); Chlanda v. Wymard, No. 3-93-321, 1994 WL 583124, at * 1 (S.D.Ohio Aug.16, 1994) (finding that the defendant’s request was not ripe until after a decision by the court on the merits and that the statute did not create a cause of action but instead anticipated that a defendant would proceed via a motion for attorney’s fees). ¶ The Court finds that the latter approach is preferred and consistent with the Federal Rules of Civil Procedure. Rule 54, for example, states that “[a] claim for attorney’s fees and related nontaxable expenses must be made by motion unless the substantive law requires those fees to be proved at trial as an element of damages.” Fed.R.Civ.P. 54(d)(2)(A). The motion must “be filed no later than 14 days after the entry of judgment.” Fed.R.Civ.P. 54(d)(2)(B)(i). Section 1692k is retrospective, and it does not require proof of attorney’s fees at trial. Instead, it contemplates a post-trial proceeding following an assessment of the merits of a plaintiff’s complaint.