Rolando Serna v. Law Office of Joseph Onwuteaka, e

Case: 14-20574 Document: 00513069143 Page: 1 Date Filed: 06/05/2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-20574 United States Court of Appeals

Fifth Circuit

FILED

ROLANDO SERNA, June 5, 2015

Lyle W. Cayce

Plaintiff–Appellee, Clerk

v.

LAW OFFICE OF JOSEPH ONWUTEAKA, P.C.; JOSEPH ONWUTEAKA;

SAMARA PORTFOLIO MANAGEMENT, L.L.C.,

Defendants–Appellants.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:11-CV-3034

Before CLEMENT, PRADO, and ELROD, Circuit Judges.

PER CURIAM:*

Defendants–Appellants Joseph Onwuteaka, the Law Office of Joseph

Onwuteaka, P.C., and Samara Portfolio Management, L.L.C. (collectively

“Onwuteaka”) appeal the district court’s award of summary judgment and

attorney’s fees in favor of Plaintiff–Appellee Rolando Serna in an action

arising under the Fair Debt Collection Practices Act (FDCPA). We affirm.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH

CIR. R. 47.5.4.

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I. FACTUAL AND PROCEDURAL BACKGROUND

This case centers on a debt-collection lawsuit filed by Onwuteaka

against Serna in a distant venue contrary to the mandates of the FDCPA, 15

U.S.C. § 1692i(a)(2).

In June 2008, Serna electronically signed a promissory note with First

Bank of Delaware for a loan of $2,525.00. The note provides that “[t]his

Agreement is entered into . . . in Delaware,” and at the time of contracting,

Serna resided in San Antonio, Bexar County, Texas. According to a sworn

affidavit, Serna entered into the loan “primarily for [his] own personal, family

or household purposes.”

After Serna defaulted, Onwuteaka acquired the loan through his debt-

collection company, Samara Portfolio Management, L.L.C., and sought to

collect the debt through his law firm, the Law Office of Joseph Onwuteaka,

P.C. In July 2010, four months after Onwuteaka first sent Serna a demand

for payment, Onwuteaka sued Serna for breach of contract in a Harris

County, Texas Justice of the Peace Court. The petition names Serna as the

defendant and states that he may be served with process at 826 Saddlebrook

Drive, San Antonio, Texas 78245—the same Bexar County address listed in

Serna’s original loan contract. Onwuteaka requested issuance of a citation on

Serna at this address, and although Serna was successfully served with

process in Bexar County, he made no appearance in the Harris County court.

Onwuteaka moved for default judgment and secured an award of $2,600.00 in

damages, $1,500.00 in attorney’s fees, and $34.00 in court costs.

Onwuteaka then began attempts to collect on the Harris County

default judgment via garnishment. Several months later, Serna filed suit in

federal court against Onwuteaka for violations of the FDCPA and the Texas

Deceptive Trade Practices Act (DTPA). Onwuteaka answered, raising a litany

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of affirmative defenses, and counterclaimed that Serna’s suit was frivolous

and brought in bad faith. 1

A. The First Summary Judgment and Appeal

The parties agreed to proceed before a magistrate judge pursuant to 28

U.S.C. § 636(c), and both parties moved for summary judgment. 2 Onwuteaka

filed his first motion, resting solely on the statute of limitations, in January

2012. After the agreed discovery deadline lapsed in April 2012—with neither

party having deposed Serna or filed any motions to compel discovery—

Onwuteaka filed his second motion for summary judgment. Onwuteaka

contended that Serna’s suit constituted an impermissible collateral attack on

the state-court judgment; that Serna’s claim qualified as a compulsory

counterclaim that he waived by failing to assert it in the Harris County court;

and that the suit was barred by the terms of the promissory note, which

provided for a “Waiver of Venue and the Right to file suit” and designated

arbitration as the exclusive means of dispute resolution. 3 Serna, in turn,

asserted that there was no genuine dispute of material fact on any element of

his affirmative claims under the FDCPA, and that none of Onwuteaka’s

affirmative defenses had merit.

1 Specifically, Onwuteaka asserted eight affirmative defenses: (1) the statute of

limitations; (2) “the doctrine of compulsory counterclaim”; (3) “the doctrine of election of

remedies”; (4) “estoppel[] and/or collateral estoppel”; (5) qualified immunity; (6) “lack of

intent and/or bona fide error on the part of defendants”; (7) res judicata; and (8) “the

doctrine of waiver.” Although Onwuteaka listed a claim for “offsets and credits for the

judgment against [plaintiff]” as an affirmative defense, the district court concluded that

this request for relief “is more properly cast as a counterclaim.”

2 Serna voluntarily moved to dismiss the DTPA claims before the district court ruled

on the cross-motions for summary judgment.

3 Onwuteaka’s entire argument on the arbitration issue comprised two sentences:

“Plaintiff also[] elected Arbitration as the forum to resolve any dispute, and thus is barred

by the doctrine[] of election of remedies. (See Exhibit ‘A’, Pages 3–4). The Court should

grant summary judgment for defendants or at a minimum[] refer the case to Arbitration.”

Although Onwuteaka appended a copy of the promissory note to his motion, he inexplicably

omitted three pages—including the pages referenced in the motion itself, which contained

the arbitration clause—from his filing.

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The magistrate granted summary judgment to Onwuteaka on Serna’s

FDCPA claims, concluding that the suit was barred by the FDCPA’s one-year

statute of limitations, 15 U.S.C. § 1692k(d), and to Serna on Onwuteaka’s

counterclaim. On appeal, this Court held that Serna’s suit was in fact timely

under § 1692k(d). Serna v. Law Office of Joseph Onwuteaka, P.C., 732 F.3d 440,

450 (5th Cir. 2013). We did not pass judgment on any other issue in the case.

B. The Second Summary Judgment

Following remand, the magistrate indicated that it would reexamine

Serna’s motion for summary judgment. Because Onwuteaka originally had

filed no opposition to Serna’s motion, 4 the magistrate permitted Onwuteaka

to file a response. Onwuteaka’s response consisted of six paragraphs. He

objected to Serna’s motion as “conclusionary [sic] as to all defendants” and to

Serna’s declaration as unsigned and “conclusionary”; he argued that Serna

“failed to carry his burden” to adduce “evidence of where the contract made

the basis of the underlying suit was signed” and was unresponsive to

discovery seeking such evidence; he invoked the bona fide error defense of 15

U.S.C. § 1692k(c); and he averred that Serna concededly had suffered no

damages as a result of Onwuteaka’s conduct. Onwuteaka attached two

exhibits to his response: excerpts from Serna’s responses to his

interrogatories and requests for admission, which purportedly showed the

deficiency of Serna’s discovery responses as well as his admission of no

damages, and a series of documents demonstrating that Serna had multiple

addresses of record—albeit none in Harris County. 5 Onwuteaka’s response

4 Onwuteaka’s sole responsive filing before the district court issued its ruling was a

motion styled “Motion for More Definite Statement and/or Special Exceptions to Plaintiff’s

Motion for Summary Judgment.” In response, Serna filed a supplemental brief containing

corrected declarations by Serna and counsel.

5 Two of Serna’s addresses were in San Antonio, which is within Bexar County, and

the third address was in Laredo, which is within Webb County.

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made no reference to the arbitration clause, the claim for “offsets and

credits,” or the statute of limitations.

The magistrate held a hearing on Serna’s motion in December 2013.

The day after the hearing, Onwuteaka moved for leave to supplement his

summary judgment response in order to “clarify” his bona fide error defense.

He included a computer printout that appears to track the status of Serna’s

loan, as well as a sworn statement describing both his reasons for filing suit

in Harris County and the procedures his office maintains to avoid violating

the FDCPA’s distant-venue provision. The magistrate denied the motion as

untimely and noncompliant with local rules.

In January 2014, the magistrate granted summary judgment to Serna

by written order. Although Serna admitted that he had sustained no actual

damages, he sought—and the magistrate awarded—the maximum amount of

statutory damages ($1,000.00), in addition to reasonable costs and attorney’s

fees. Onwuteaka moved for reconsideration, citing the inadequacy of Serna’s

declaration to prove “consumer” status under the FDCPA, his entitlement to

offsets and credits, and his invocation of the bona fide error defense. The

magistrate denied the motion “[b]ecause the Court’s Order Granting Summary

Judgment has already addressed the arguments raised by the Defendants.”

C. The Attorney’s Fees Award

Serna next moved for attorney’s fees and costs, appending declarations

by counsel and itemized billing records. Onwuteaka objected to the motion,

moved to strike “plaintiff’s attorney’s fees claim and/or his experts” for failure

to designate expert witnesses and list attorney’s fees as an element of

damages in discovery, and requested a hearing on the motion. Although the

magistrate overruled Onwuteaka’s objections, it held a hearing on attorney’s

fees in which both Onwuteaka and Serna’s counsel testified, and Onwuteaka

examined Serna’s counsel as an adverse witness. Both parties orally moved to

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designate their attorney’s fees experts at the close of the hearing, and both

parties filed supplemental briefing after the hearing. 6 Applying the Fifth

Circuit’s two-step lodestar framework, the district court found, over

Onwuteaka’s objections, that Serna’s counsel was entitled to $72,133.50 in

fees and $939.95 for costs.

Following the entry of final judgment, Onwuteaka filed a motion styled

“Motion for Rehearing and/or for New Trial.” Onwuteaka made four

arguments: (1) the magistrate erred in overruling Onwuteaka’s objection to

Serna’s motion for attorney’s fees because Serna stated, in response to a

request for admission, that “he has no document that shows the damages he

has suffered”; (2) Serna “waived his right” to litigation due to the arbitration

clause in the promissory note, and the magistrate erroneously concluded in

its summary judgment order that the note contained no such clause; (3) the

magistrate “erred in failing to find that there was no evidence of the judicial

district where [Serna] signed the promissory note”; and (4) the magistrate

“erred in failing to find that ‘bring an action’ under Section 1692i(a)(2) is the

same as ‘may be brought’ under Section 1692k(d) . . . [and] [t]hus, the statute

of limitations started to run upon filing of the underlying lawsuit.” The

magistrate summarily denied the motion. This appeal followed.

II. JURISDICTION

The district court had federal question jurisdiction over Serna’s FDCPA

claims pursuant to 28 U.S.C. § 1331 and had supplemental jurisdiction over

Serna’s DTPA claims pursuant to 28 U.S.C. § 1367. We have jurisdiction to

review the district court’s final judgment pursuant to 28 U.S.C. § 1291.

6Onwuteaka filed both a motion for reconsideration of his objections and a

memorandum opposing Serna’s fee request.

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III. DISCUSSION

Onwuteaka purports to raise seven claims of error. Six of these claims

pertain to the grant of summary judgment in favor of Serna, and the

remaining claim pertains to the award of attorney’s fees. We group these

claims accordingly and discuss each in turn.

Additionally, because Onwuteaka’s brief is often conclusory and lacking

in citations to binding authority, we deem it appropriate to review our

standards for adequate briefing before proceeding to the merits of

Onwuteaka’s claims. Federal Rule of Appellate Procedure 28(a) obligates an

appellant to “identify[] the rulings presented for review, with appropriate

references to the record,” and requires that the appellant’s argument contain

“appellant’s contentions and the reasons for them, with citations to the

authorities and parts of the record on which the appellant relies; and . . . for

each issue, a concise statement of the applicable standard of review.” Fed. R.

App. P. 28(a)(6), (8). In United States v. Scroggins, we summarized our

precedents applying Rule 28:

A party that asserts an argument on appeal, but fails to

adequately brief it, is deemed to have waived it. It is not enough

to merely mention or allude to a legal theory. We have often

stated that a party must “press” its claims. At the very least, this

means clearly identifying a theory as a proposed basis for

deciding the case—merely intimat[ing] an argument is not the

same as “pressing” it. In addition, among other requirements to

properly raise an argument, a party must ordinarily identify the

relevant legal standards and any relevant Fifth Circuit Cases.

599 F.3d 433, 446–47 (5th Cir. 2010) (citations and internal quotation marks

omitted). With these principles in mind, we turn to Onwuteaka’s arguments.

A. The Summary Judgment for Serna on the FDCPA Claims

We review the “grant of summary judgment de novo, applying the same

legal standards as the district court.” Am. Home Assurance Co. v. United Space

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Alliance, LLC, 378 F.3d 482, 486 (5th Cir. 2004). Summary judgment is

appropriate “if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). A dispute is genuine “if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party,” and a fact is material if it

“might affect the outcome of the suit under the governing law.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Like the district court, we

construe all facts and evidence in the light most favorable to the nonmovant,

and we refrain from making credibility determinations and weighing the

evidence. Haverda v. Hays Cnty., 723 F.3d 586, 591 (5th Cir. 2013).

Onwuteaka’s objections to summary judgment fit into two broad

categories: challenges to the evidence supporting Serna’s prima facie case and

arguments on the merits of Onwuteaka’s affirmative defenses.

1. Serna’s Prima Facie Case

Onwuteaka first asserts that there was insufficient evidence on two of

the four elements of Serna’s prima facie FDCPA case to support the grant of

summary judgment. To make out a claim for venue abuse under the FDCPA,

Serna must show that (1) Onwuteaka is a “debt collector”; (2) Onwuteaka

brought “a legal action on a debt”; (3) Serna is a “consumer,” meaning that he

is “obligated to pay [a] debt” incurred “primarily for personal, family, or

household purposes”; and (4) Onwuteaka’s debt-collection suit was not

brought in a venue “in which [Serna] signed the contract sued upon” or “in

which [Serna] reside[d] at the commencement of the action.” 15 U.S.C.

§§ 1692a, 1692i, 1692k. Onwuteaka challenges only Serna’s evidence on the

third and fourth elements.

“When seeking summary judgment, the movant bears the initial

responsibility of demonstrating the absence of a genuine issue of material fact

with respect to those issues on which the movant bears the burden of proof at

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trial.” Transamerica Ins. Co. v. Avenell, 66 F.3d 715, 718 (5th Cir. 1995) (per

curiam). The movant discharges this burden by making out “a prima facie case

that would entitle [it] to judgment as a matter of law if uncontroverted at

trial.” 10A Charles Alan Wright et al., Federal Practice & Procedure § 2727 (3d

ed. 2015); accord Anderson, 477 U.S. at 250 (“[T]his standard mirrors the

standard for a directed verdict under [Rule 50(a)], which is that the trial judge

must direct a verdict if, under the governing law, there can be but one

reasonable conclusion as to the verdict.”). If the movant succeeds, “the

nonmovant must go beyond the pleadings and designate specific facts showing

that there is a genuine issue for trial.” Little v. Liquid Air Corp., 37 F.3d 1069,

1075 (5th Cir. 1994) (en banc) (per curiam). “This burden is not satisfied with

some metaphysical doubt as to the material facts, by conclusory allegations, by

unsubstantiated assertions, or by only a scintilla of evidence.” Id. (citations

and internal quotation marks omitted). To the contrary, the nonmovant must

not only “identify specific evidence in the record,” but also “articulate the

‘precise manner’ in which that evidence support[s] their [position].” Willis v.

Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014) (first alteration in original)

(quoting Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994)).

Moreover, “[t]his court has regularly reminded litigants that ‘Rule 56

does not impose upon the district court [or the court of appeals] a duty to sift

through the record in search of evidence to support a party’s opposition to

summary judgment.’” Id. (second alteration in original) (quoting Ragas v.

Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998)).

With regard to the third element—Serna’s consumer status—Serna

presented a sworn declaration stating, “I entered into a contract with First

Bank of Delaware primarily for my own personal, family or household

purposes.” Onwuteaka objected to this declaration as “consist[ing] of

conclusionary statements that are not proper summary judgment evidence,”

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but he cited no law to support his argument. Although Onwuteaka continued

to press his objection at the hearing on Serna’s motion, he still cited no

authority for the proposition that Serna’s declaration was not competent

summary judgment evidence; instead, he contended that Serna’s discovery

responses were inadequate and affirmed that he wanted to take Serna’s

deposition. The magistrate overruled Onwuteaka’s objection, noting that

Onwuteaka not only had failed to adduce legal support for his argument, 7 but

also had neglected to depose Serna or to compel responses before the close of

discovery. Further, the magistrate noted that Onwuteaka had neither

disputed the declaration’s veracity nor presented any contrary summary

judgment evidence. Before this Court, Onwuteaka reurges his argument that

Serna’s declaration was devoid of cognizable evidence and therefore could not

support the entry of judgment below.

We disagree and hold that Serna discharged his burden on summary

judgment to present evidence establishing his consumer status. 8 This Court

has recognized that, as a general matter, “unsupported allegations or

affidavits setting forth ‘ultimate or conclusory facts and conclusions of law’

are insufficient to either support or defeat a motion for summary judgment.”

Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).

However, we cannot say that the statements in Serna’s declaration fall into

these categories, and Onwuteaka gives us no legal basis to so conclude. As a

7 Onwuteaka’s first citation to authority appeared in his motion for reconsideration.

There, Onwuteaka cited three out-of-circuit cases to urge the magistrate to “disregard or

strike Serna’s declaration” for containing only inadmissible “factual conclusion[s].” Before

this Court, Onwuteaka cites two cases: Warfield v. Byron, 436 F.3d 551, 556 (5th Cir. 2006),

which addresses a Rule 60(b) motion; and Garrett v. Hewlett–Packard Co., 305 F.3d 1210,

1213 (10th Cir. 2002), which discusses the recitation of facts on review of summary

judgment and quotes Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir. 1995), for

the standards to oppose summary judgment.

8 Onwuteaka makes no effort to identify or argue the standards applicable to the

district court’s decision to overrule his objection. Accordingly, we deem any such argument

waived as inadequately briefed. See Scroggins, 599 F.3d at 446–47.

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preliminary matter, Serna based his declaration on his own personal

knowledge concerning the reasons for the loan—a subject plainly within his

competence. See Fed. R. Civ. P. 56(c)(4). Aside from citing Rule 56(c)(4),

Onwuteaka makes no argument as to why Serna’s statements would be

inadmissible at trial. To the contrary, while “consumer status” may be a legal

conclusion, that one procured a loan “for personal, family or household

purposes” is a statement of fact offered in support of that ultimate conclusion.

This sets Serna’s declaration apart from the affidavits we have found

insufficient to support summary judgment. Cf. Galindo, 754 F.2d at 1221–22

(listing examples of impermissibly conclusory averments, including a bare

allegation that an employee was “acting within [the] scope of employment,”

and noting that such statements implicate matters subject to a totality-of-

the-circumstances analysis). Although Serna’s declaration could have been

more specific about the uses to which he intended to put the loan, this alone

is not enough to render the evidence unacceptably conclusory or inadmissible.

Moreover, as Serna points out, there is other evidence in the summary

judgment record that the loan was for personal, rather than business,

purposes. For instance, the loan was for a small amount ($2,600.00) and was

deposited directly into Serna’s personal bank account. In addition, Serna swore

in response to an interrogatory that he owned no businesses during the

relevant time period. Accordingly, Serna discharged his initial burden to make

out a prima facie showing of the element of consumer status, see Anderson, 477

U.S. at 250, and the burden shifted to Onwuteaka to “go beyond the pleadings

and designate specific facts showing that there is a genuine issue for trial,”

Little, 37 F.3d at 1075. This Onwuteaka concededly could not do.

As to the fourth element—improper venue—Serna cites the loan

contract, his sworn declaration, and Onwuteaka’s own litigation documents

to show that Harris County was a distant venue for a debt-collection suit

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within the meaning of the FDCPA. The loan contract provides that “[t]his

Agreement is entered into between you and me in Delaware,” and Serna’s

sworn declaration and the litigation records reflect that Serna resided in San

Antonio both when he signed the contract and when Onwuteaka commenced

the Harris County action. Onwuteaka identifies no contrary evidence,

electing instead to challenge Serna’s showing. He makes three arguments:

first, “there is no contract with Serna’s physical signature”; second, Serna’s

residence is “at best speculative if not unknown”; and third, Serna’s evidence

was “self-serving” and conclusory.

Onwuteaka’s arguments are unavailing. The absence of a physical

contract bearing Serna’s signature is immaterial, as there is no dispute that

the parties entered the contract electronically. See Anderson, 477 U.S. at 248.

Although Serna may have had multiple addresses of record, none were in

Harris County. 9 Moreover, Serna presented uncontroverted evidence—

including Onwuteaka’s own pleadings—that he lived in San Antonio on the

date listed in the contract and the date Onwuteaka initiated legal

proceedings in Harris County. To the extent that Onwuteaka complains that

Serna’s nonresponsive discovery obstructed his efforts to elicit evidence

concerning Serna’s precise physical location at the operative times, the

proper course would have been to file a motion to defer ruling pending

additional discovery under Rule 56(d). 10 Lastly, it is unclear how evidence of

one’s address can be so “self-serving” and conclusory as to fall outside the

realm of summary judgment-competent evidence.

9 See supra note 5 and accompanying text.

10 Onwuteaka filed no such motion. Even assuming arguendo that Onwuteaka’s

statements at the motion hearing indicating his desire to depose Serna could be construed

as an oral motion under Rule 56(d), Onwuteaka makes no argument on appeal that the

district court abused its discretion by refusing to permit additional discovery. Therefore, we

do not consider this issue. See Scroggins, 599 F.3d at 446–47.

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In sum, Serna discharged his burden on summary judgment to point to

evidence of an improper venue that, if uncontroverted, would entitle him to a

directed verdict. See id. at 250. Onwuteaka did not, in turn, “identify specific

evidence in the record” showing a genuine issue for trial, Willis, 749 F.3d at

317; to the contrary, his response, at best, points to only “metaphysical doubt

as to the material facts,” Little, 37 F.3d at 1075. We therefore agree with the

district court that there was no genuine dispute of material fact as to each

element of Serna’s FDCPA case and that Serna was entitled to judgment as a

matter of law.

2. Onwuteaka’s Affirmative Defenses and Counterclaim

Onwuteaka raised nine affirmative defenses in his answer to Serna’s

suit. The magistrate found no merit in any of these claims, and only four are

at issue in this appeal: the affirmative defenses of waiver, bona fide error,

and limitations, and the counterclaim for offsets and credits.

As before, we review the district court’s ruling de novo. Exxon Corp. v.

Oxxford Clothes, Inc., 109 F.3d 1070, 1074–75 (5th Cir. 1997). The familiar

summary judgment burden-shifting scheme “does not vary where [the

movant] is the plaintiff challenging [the nonmovant’s] affirmative defense”;

because the nonmovant “bears the ultimate burden of persuasion at trial on

its [affirmative defense], it must (provided [the movant] has met its summary

judgment burden) present admissible evidence legally sufficient to sustain a

finding favorable to [it] on each element of that defense.” Id. at 1074.

Correspondingly, the movant “should be able to obtain summary judgment

simply by disproving the existence of any essential element of the opposing

party’s claim or affirmative defense.” Fontenot v. Upjohn Co., 780 F.2d 1190,

1194 (5th Cir. 1986).

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a. Waiver

Onwuteaka first contends that Serna “waived his right to this suit by

agreeing to arbitration.” The parties do not dispute that the loan contract

between Serna and First Bank of Delaware contains an arbitration clause.

They disagree, however, on whether Onwuteaka waived any right to

arbitration by neglecting to move to compel arbitration and by invoking the

judicial process to Serna’s detriment or prejudice. We need not resolve this

dispute, as we conclude that Onwuteaka has waived this claim of error

through inadequate briefing. The entirety of Onwuteaka’s briefing on

arbitration comprises five sentences, with one citation—to a 1943 decision by

the Eastland Court of Civil Appeals that defines waiver—and no reference to

the exact text of the clause. He makes no argument that the arbitration

clause covers Serna’s FDCPA claim—an issue that the district court had no

occasion to pass on because Onwuteaka never moved to compel arbitration

nor even consistently invoked the clause. As a result, this issue is waived. See

Scroggins, 599 F.3d at 446–47; see also XL Specialty Ins. Co. v. Kiewit

Offshore Servs., Ltd., 513 F.3d 146, 153 (5th Cir. 2008) (“To preserve an

argument, it must be raised to such a degree that the trial court may rule on

it.” (internal quotation marks omitted)).

b. Bona Fide Error

Onwuteaka next asserts that the district court erroneously denied his

statutory affirmative defense of bona fide error. The FDCPA provides that

“[a] debt collector may not be held liable in any action brought under this

subchapter if the debt collector shows by a preponderance of evidence that

the violation was not intentional and resulted from a bona fide error

notwithstanding the maintenance of procedures reasonably adapted to avoid

any such error.” 15 U.S.C. § 1692k(c). Onwuteaka’s sole argument on appeal

is that he was entitled to this defense because he made an “unintentional

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error[] of law.” Citing § 1692n (“Relation to State Laws”), Onwuteaka

contends that because the Texas Finance Code and the DTPA “afford a

consumer more protection than [the] FDCPA,” Texas Rule of Civil Procedure

502.4(c), which authorizes the filing of a lawsuit in the county of the

plaintiff’s residence when the defendant’s residence is unknown, “should not

be pre-empted by the FDCPA.”

Onwuteaka’s argument is not only meritless, but frivolous and

sanctionable. Onwuteaka’s sole authorities for the premise that mistakes of

law qualify for the bona fide error defense are Jerman v. Carlisle, McNellie,

Rini, Kramer & Ulrich LPA, 538 F.3d 469 (6th Cir. 2008), and Taylor v.

Luper, Sheriff & Niedenthal Co., L.P.A., 74 F. Supp. 2d 761 (S.D. Ohio 1999).

The Supreme Court granted certiorari in Jerman and ultimately reversed the

Sixth Circuit on precisely this point. See Jerman v. Carlisle, McNellie, Rini,

Kramer & Ulrich LPA, 130 S. Ct. 1605, 1624–25 (2010) (holding that “the

bona fide error defense in § 1692k(c) does not apply to a violation of the

FDCPA resulting from a debt collector’s incorrect interpretation of the

requirements of that statute” and reversing the contrary judgment of the

court of appeals). Despite including outdated subsequent history in his

citation indicating that the Supreme Court had granted certiorari in Jerman,

Onwuteaka retained this citation and presented the Sixth Circuit’s now-

rejected original holding to this Court as valid law. Taylor, for its part,

predates both opinions in Jerman, and it pertains to a mistake about the

requirements of state law rather than about the requirements of the FDCPA

itself. Taylor, 74 F. Supp. 2d at 765.

Even assuming arguendo that Onwuteaka intends to assert a mistake of

state law—an issue on which the Supreme Court expressly reserved judgment

in Jerman, 130 S. Ct. at 1610 n.4—his argument is unpersuasive. Not only

does his mistake ultimately turn on the unambiguous venue requirements of

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the FDCPA, but the summary judgment evidence reflects that Onwuteaka was

aware of Serna’s residence in San Antonio by the time he filed suit. Indeed, the

magistrate held that Onwuteaka’s proffered evidence in opposition to

summary judgment actually undermined his defense by establishing that “he

filed a debt collection suit against Serna in Harris County without any reason

to believe that Serna signed the promissory note in Harris County or that

Serna resided in Harris County,” and despite the fact that “all of the evidence

available to Onwuteaka showed that Serna did not reside in Harris County.” 11

To the extent that Serna first presented the magistrate with these arguments

concerning the dearth of evidence to support the bona fide error defense, he

discharged his summary judgment burden and thereby placed the onus on

Onwuteaka to “present admissible evidence legally sufficient to sustain a

finding favorable to [him] on each element of that defense,” Exxon Corp., 409

F.3d at 1074. For the reasons just explained, Onwuteaka was unable to

surmount this obstacle in the district court, and he presents no meritorious

argument to the contrary on appeal.

c. Statute of Limitations

Onwuteaka attempts to circumvent this Court’s ruling in the first

appeal that Serna’s suit was timely, Serna, 732 F.3d at 449–50, by raising a

new legal argument concerning the meaning of the phrase “may be brought”

in § 1692k(d). We need not dwell on this argument further, as it is plainly

foreclosed by the law-of-the-case doctrine and the related doctrine of waiver.

See Med. Ctr. Pharmacy v. Holder, 634 F.3d 830, 834 (5th Cir. 2011)

(explaining that “[t]he law-of-the-case doctrine posits that when a court

decides upon a rule of law, that decision should continue to govern the same

11 Further, the magistrate denied Onwuteaka’s motion for leave to supplement the

record with an affidavit bolstering his defense, and Onwuteaka does not contest this ruling

on appeal.

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issue in subsequent stages in the same case” and observing that “this rule . . .

is qualified by the waiver doctrine, which holds that an issue that could have

been but was not raised on appeal is forfeited and may not be revisited by the

district court on remand” (internal quotation marks omitted)).

d. Offsets and Credits

Lastly, Onwuteaka avers that the district court erred in denying his

counterclaim for offsets and credits, which he originally cast as an affirmative

defense. 12 The magistrate held that no authority supported Onwuteaka’s

request that the state-court default judgment “be balanced against the

statutory award granted to Serna in this case.” Onwuteaka does not now

point to any authority on which the district court could have enforced the

state-court judgment. To the contrary, two of the three cases he cites center

on offsets or “setoffs” in bankruptcy, see NVF Co. v. New Castle Cnty., 276

B.R. 340, 348 (D. Del. 2002); Zerodec Megacorp, Inc. v. Terstep of Tex., Inc. (In

re Zerodec Megacorp, Inc.), 60 B.R. 884, 886–87 (E.D. Pa. 1985), and the

remaining case pertains to the Consumer Leasing Act, see Kedziora v.

Citicorp. Nat’l Servs., Inc., 901 F. Supp. 1321, 1331–32 (N.D. Ill. 1995).

Insofar as Onwuteaka has neglected to make any legal argument that he was

entitled to an offset—rather than simply contending in general terms that a

defensive offset qualifies as a permissive counterclaim and does not require

an independent jurisdictional basis—we hold that he has waived this claim

through inadequate briefing. See Scroggins, 599 F.3d at 446–47.

As Onwuteaka has failed to identify a genuine dispute of material fact

on any of the elements of Serna’s prima facie case, and has been unable to

12 Notably, Onwuteaka’s briefing characterizes the request for offsets and credits as

a permissive counterclaim rather than an affirmative defense. This Court has not decided

whether setoff is a defense in an FDCPA action, and this appears to be an unsettled legal

question in other circuits as well, see Jacobson v. Persolve, LLC, No. 14-CV-00735-LHK,

2014 WL 4090809, at *9 (N.D. Cal. Aug. 19, 2014).

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present legally sufficient evidence to sustain his defenses, we find no

reversible error in the district court’s grant of summary judgment to Serna.

B. The Award of Attorney’s Fees and Costs to Serna

“A district court’s determination of attorneys’ fees is reviewed for abuse

of discretion, and the findings of fact supporting the award are reviewed for

clear error.” Black v. SettlePou, P.C., 732 F.3d 492, 496 (5th Cir. 2013)

(internal quotation marks omitted). In this Circuit, attorney’s fees are

calculated using the two-step lodestar method. Id. at 502. First, the court

calculates the lodestar “by multiplying the number of hours an attorney

reasonably spent on the case by an appropriate hourly rate, which is the

market rate in the community for this work.” Id. “Determinations of hours

and rates are questions of fact.” La. Power & Light Co. v. Kellstrom, 50 F.3d

319, 324 (5th Cir. 1995) (per curiam). Second, once the court has ascertained

the lodestar, it may “enhance or decrease the amount of attorney’s fees based

on the relative weights of the twelve factors set forth” in Johnson v. Georgia

Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), abrogated on other

grounds by Blanchard v. Bergeron, 489 U.S. 87 (1989). Black, 732 F.3d at 502

(internal quotation marks omitted). Adjustments to the lodestar are reviewed

for abuse of discretion, and we “inspect the district court’s lodestar analysis

only to determine if the court sufficiently considered the appropriate criteria.”

La. Power & Light Co., 50 F.3d at 329.

After soliciting billing records and receiving testimony at a hearing, the

magistrate calculated the lodestar to be $72,133.50. This was the product of

“reasonable hourly rates” of $250 and $300 for Serna’s attorneys and roughly

246 hours reasonably spent prosecuting the case (including a 10% reduction

on the 273 hours claimed by counsel, based on a lack of evidence of billing

judgment). The magistrate declined Serna’s request for an enhancement to

the lodestar amount, and it rejected Onwuteaka’s challenges to the same.

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Before this Court, Onwuteaka advances five challenges to the

attorney’s-fees award. First, he contends that Serna’s expert witnesses—his

attorneys—should have been excluded under Federal Rule of Civil Procedure

37 because Serna failed timely to disclose these witnesses in violation of Rule

26. Although Onwuteaka objected to the late designation of experts and filed

a motion to strike, the magistrate overruled Onwuteaka’s objection,

reasoning that attorney’s-fee experts are treated differently from subject-

matter experts and that Onwuteaka suffered neither surprise nor prejudice.

Onwuteaka makes no attempt to argue that the no-surprise-or-prejudice

finding was clearly erroneous, see O’Neill v. AGWI Lines, 74 F.3d 93, 95 (5th

Cir. 1996), or that the magistrate’s ruling constituted an abuse of discretion,

see Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir. 1990); see also

Campbell v. Keystone Aerial Surveys, Inc., 138 F.3d 996, 1000 (5th Cir. 1998)

(noting that “district courts have ‘wide latitude’ in pretrial matters”). Our

review of the record does not convince us otherwise.

Second, Onwuteaka asserts that Serna “failed to produce

contemporaneous records to substantiate his claim for attorney’s fees.” As a

preliminary matter, this Court has expressly held that “[f]ailing to provide

contemporaneous billing statements does not preclude an award of fees per

se, as long as the evidence produced is adequate to determine reasonable

hours.” La. Power & Light Co., 50 F.3d at 325. Onwuteaka does not argue

that the records Serna ultimately provided to the magistrate are inadequate

to calculate the lodestar. Rather, his position seems to be that because Serna

admitted in preliminary discovery that he had no records documenting his

attorney’s fees and he did not subsequently correct this admission, he

remains bound by the original discovery response and could not later

controvert it in the hearing.

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We are not persuaded. The discovery Onwuteaka cites was conducted in

2012, at the outset of the litigation and fully two years before Serna won

summary judgment. While Serna could have formally supplemented his

original discovery responses to include his attorney’s-fee records, Onwuteaka

never brought these perceived deficiencies in discovery to the district court’s

attention before he moved to strike Serna’s evidence at the attorney’s-fee

hearing. Moreover, by the day of the hearing, Onwuteaka had been in

possession of Serna’s motion for fees and supporting documentation for thirty-

nine days. Coupled with the evidence that Onwuteaka was on notice from the

inception of the suit that Serna sought attorney’s fees, the magistrate found

that Onwuteaka was not prejudiced by any potential violation of Rules 26 and

37. Onwuteaka makes no claim that this finding was clearly erroneous or that

the district court’s ruling amounted to an abuse of discretion, see O’Neill, 74

F.3d at 95, and, as before, our review of the record is not to the contrary.

Third, Onwuteaka claims that the hourly rate determined by the

magistrate is clearly erroneous in light of Serna’s attorneys’ conceded “lack of

experience” in FDCPA matters. Onwuteaka’s sole authority for this point is a

Tenth Circuit case finding error in an award of fees based on counsel’s billing

rate rather than on the prevailing market rate. See Beard v. Teska, 31 F.3d

942, 956–57 (10th Cir. 1994), abrogated on other grounds by Buckhannon Bd.

& Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598

(2001). Onwuteaka’s reliance on Beard is misplaced. Unlike in the district

court in Beard, which summarily accepted counsel’s billing rate without

reference to market norms, 31 F.3d at 957, the magistrate here expressly

found that the claimed hourly rates of $250 and $300 were reasonable for

attorneys of counsel’s skill and expertise practicing in the relevant region. The

magistrate based this determination on affidavits submitted by counsel, “as

well as the Court’s own experience in the relevant community, case law[,] and

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other authorities.” Onwuteaka provides no reason to conclude that these

particular findings were clearly erroneous, and we are not left with the

requisite “definite and firm conviction that a mistake has been committed.”

Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985).

Fourth, Onwuteaka posits that the magistrate should not have

awarded Serna attorney’s fees for his successful previous appeal. Citing Bode

v. United States, 919 F.2d 1044, 1052 (5th Cir. 1990), Onwuteaka states that

his position on the limitations issue was “substantially justified,” rendering

him immune from an award of fees. But the substantially-justified standard

applies only to litigation against the United States, not private defendants

like Onwuteaka. See id.; Herron v. Bowen, 788 F.2d 1127, 1129 (5th Cir.

1986) (per curiam) (citing 28 U.S.C. § 2412(d)(1)(A)). Onwuteaka’s only other

argument about the award of fees for the previous appeal—that Serna’s

contract with counsel excludes appellate representation—is belied by the text

of the representation agreement. 13 We reject this claim of error.

Finally, Onwuteaka avers in conclusory fashion that Serna “should

[not] be entitled to attorney’s fees given that he sustained no damages and

that this was a fraudulent account.” This argument ignores the critical fact

that Serna was awarded statutory damages. See Johnson v. Eaton, 80 F.3d

148, 151 (5th Cir. 1996) (“The language of the statute places explicit

conditions on . . . attorney’s fees[,] which are only available where the

plaintiff has succeeded in establishing that the defendant is liable for actual

13 The agreement provides: “Client further agrees that TRLA is not obligated to

provide services for an appeal of a determination in his or her case with which the Client is

not satisfied. If any appeal is necessary or appropriate, TRLA will consider that question as

a separate matter at the appropriate time.”

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and/or additional damages.” (emphasis added)). 14 Moreover, insofar as this

or any of Onwuteaka’s other challenges can be interpreted as advocating

further adjustments to the lodestar, we note that the district court considered

all relevant Johnson factors—e.g., the attorney’s skill, the customary fee in

the community, the amount involved, and the results obtained—and thus did

not abuse its discretion. See La. Power & Light Co., 50 F.3d at 329–31.

We find no reversible error in Serna’s attorney’s-fee award.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment. In

light of Onwuteaka’s persistently deficient briefing and misrepresentation of

legal authority, we tax the costs of this appeal against Onwuteaka consistent

with Federal Rule of Appellate Procedure 39(a)(2).

14 To the extent that Onwuteaka’s argument can be construed as implicitly

challenging Johnson, it is inadequately briefed and will not be considered further. See

Scroggins, 599 F.3d at 446–47.

22