In Rodriguez v. Portfolio Recovery Associates, LLC, — F.Supp.2d —-, 2012 WL 211511 (W.D.Wash. 2012), Judge Martinez held that a debt collector’s claim for ‘reverse attorneys’ fees’ arising from the debtor’s bad-faith filing of an FDCPA claim must be brought as an attorney fee motion, not as a separate counter-claim.
A few courts have allowed § 1692(k)(a)(3) counterclaims. See Hylkema v. Palisades Collection, LLC, C07–1679RSL, 2008 WL 623469 (W.D.Wash. Mar. 4, 2008); Ayres v. Nat’l Credit Mgmt. Corp., Civ. A. No. 90–5535, 1991 WL 66845, at *5 (E.D.Pa. Apr. 25, 1991). However, notably more courts have found that § 1692(k)(a)(3) should not be pursued as a counterclaim, but should be resolved only after a defendant prevails on the merits. See, e.g., Kropf v. TCA, Inc., 2010 WL 4722282 at *1 (E.D.Mich. Nov. 22, 2010) (“the Fair Debt Collection Practices Act does not create an independent cause of action for attorney’s fees”); Perry v. Stewart Title Co., 756 F.2d 1197, 1211 (5th Cir.1985) (“[t]o recover attorney’s fees under the FDCPA, the prevailing defendant must show affirmatively that the plaintiff brought the FDCPA claim in bad faith and for the purpose of harassment”) (emphasis added); 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”); Kirscher v. Messerli & Kramer, P.A., 2006 WL 145162 at *7 (D.Minn. Jan. 18, 2006) (dismissing the defendant’s counterclaim, but permitting it to request attorney’s fees by a separate motion filed at a later stage in the proceedings); Young v. Reuben, 2005 WL 1484671 at *1–2 (S .D. Ind. June 21, 2005) (same); Allen v. Scott, 2011 WL 219568 at *2 (N.D.Tex. Jan. 19, 2011) (noting that the “conclusion that § 1692k does not permit a bad faith counterclaim is consistent with the majority of decisions reached by other courts”); Allers–Petrus v. Columbia Recovery Group, LLC, C08–5533 FDB, 2009 WL 1160061 at *1 (W.D.Wash. Apr. 29, 2009) (“if a plaintiff brings an FDCPA action and loses, subsection 1692k(a)(3) permits the court to award attorney’s fees and costs to the defendant”) (emphasis added). ¶ The Plaintiff’s position is not only supported by the weight of case law, but also consistent with the general rule regarding attorney’s fees, set out in the Federal Rules of Civil Procedure. . . . For the foregoing reasons, the Court holds that § 1692k attorney’s fees claims should be raised on a motion, not as a separate counterclaim. Plaintiff’s Motion to dismiss the counterclaim is granted. The Defendant may make a motion for attorney’s fees at the proper time.