                                                                  FILED
                                                       United States Court of Appeals
                                                               Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                           December 18, 2007
                             FOR THE TENTH CIRCUIT
                                                          Elisabeth A. Shumaker
                                                              Clerk of Court


BRENDA HARRIS;
LARRY TOLSMA,

               Plaintiffs-Appellants,

v.                                                  No. 06-3086
                                            (D.C. No. 02-CV-1395-MLB)
AMERICAN GENERAL FINANCE,                             (D. Kan.)
INC., a foreign corporation,

               Defendant-Appellee.


BRENDA HARRIS;
LARRY TOLSMA,

               Plaintiffs,

v.                                                  No. 06-3358
                                            (D.C. No. 02-CV-1395-MLB)
AMERICAN GENERAL FINANCE,                             (D. Kan.)
INC., a foreign corporation,

               Defendant-Appellee.

-----------------------------------------

BARRY L. ARBUCKLE,

               Attorney-Appellant.
                          ORDER AND JUDGMENT *


Before KELLY, PORFILIO, and ANDERSON, Circuit Judges.


      In the lead appeal, plaintiffs Brenda Harris and Larry Tolsma challenge the

district court’s grant of summary judgment to defendant American General

Finance, Inc. (AGF) on their claims brought under the Real Estate Settlement

Procedures Act (RESPA), 12 U.S.C. §§ 2601-2617. They also appeal the order

denying their request for a statutory penalty, as authorized by the Kansas

Consumer Protection Act (KCPA), Kan. Stat. Ann. § 50-636(a). In the related

appeal, plaintiffs challenge the amount of attorney fees awarded to their counsel.

We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

                                   Background

      We provide only a brief outline of the facts to explain the issues presented

for review. Plaintiffs financed their home and automobile through loans with

AGF in two separate accounts. One of the accounts carried disability insurance.

Plaintiffs directed the proceeds from the disability policy to be paid to AGF to


*
       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(G). 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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

                                        -2-
bring both accounts current, and the rest to be paid to them. Instead, AGF

retained all of the proceeds and applied them to the loans. During 2002, plaintiffs

directed various payments to one or the other of the loans, but AGF did not

always apply the payments as directed. Plaintiffs and their attorney sent at least

four letters to AGF concerning the payment directions. AGF responded to all but

the last letter, but did not adjust the loans to plaintiffs’ satisfaction.

       Plaintiffs filed suit alleging AGF violated RESPA and KCPA. They also

asserted claims for conversion and intentional infliction of emotional distress and

sought a declaratory judgment for an accounting. The district court granted

AGF’s motion for summary judgment on the RESPA, accounting, and

emotional-distress claims, and the case proceeded to a jury trial on the KCPA and

conversion claims. The jury returned a verdict in plaintiffs’ favor on the KCPA

claim and awarded $500 in damages. The jury found in AGF’s favor on the

conversion claim.

       After trial, the parties agreed to the district court’s request to work out the

issue of attorney fees. After several months with no resolution, the district court

entered the judgment for $500 in plaintiffs’ favor. Plaintiffs then filed a motion

to amend the judgment to impose a $10,000 civil penalty under the KCPA and to

award them attorney fees. The district court denied the request for a civil penalty

and awarded plaintiffs $200 in attorney fees. Plaintiffs appeal, asserting that the

district court erred in granting summary judgment to AGF on their RESPA

                                            -3-
claims, that a civil penalty under the KCPA was warranted, and that the

attorney-fee award of $200 is inadequate.

                                 Appeal No. 06-3086

                       Summary Judgment on RESPA Claims

      We first address plaintiffs’ appeal of the summary-judgment order on their

RESPA claims. As relevant here, RESPA requires that upon the receipt of a

qualified written request, the servicer of a federally related mortgage loan must

acknowledge receipt of the correspondence within twenty days, excluding

weekends and holidays, and within sixty working days, must make appropriate

corrections or investigate and provide the borrower with a written notification

explaining why the servicer believes the account is correct. 12 U.S.C.

§ 2605(e)(1)(A) & (2); see also 24 C.F.R. § 3500.21(e). A “qualified written

request” must be a written correspondence that “includes, or otherwise enables

the servicer to identify, the name and account of the borrower; and includes a

statement of the reasons for the belief of the borrower . . . that the account is in

error or provides sufficient detail to the servicer regarding other information

sought. . . .” § 2605(e)(1)(B). AGF does not dispute plaintiffs’ assertion that it is

a “servicer” of a “federally related mortgage loan,” as defined by RESPA.

12 U.S.C. §§ 2605(i)(2) & 2602(1).

      We review de novo the district court’s grant of summary judgment, viewing

the record in the light most favorable to the party opposing summary judgment.

                                           -4-
McGowan v. City of Eufala, 472 F.3d 736, 741 (10th Cir. 2006). Summary

judgment is appropriate if there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

      Plaintiffs contend that three letters sent to AGF by their attorney dated

June 28, 2002, September 26, 2002, and October 14, 2002, were qualified written

requests and that AGF’s treatment of those requests violated RESPA. 1 The

June 28 letter complained about collection procedures employed by AGF’s

personnel. It also contained the following pertinent language: “On May 21,

2002, you refused to accept a payment on the vehicle and demanded the funds be

applied to the house payment. I believe the law requires you to honor the

debtor’s directions on how their funds are to be applied.” Aplee. Supp. App.

(appeal No. 06-3086), at 57. The district court held that the letter was not a

qualified written request because it did not include the loan account numbers, did

not state that the account was in error, and did not request information from the

lender.

      “[W]e can affirm for any reason supported by the record but not relied on

by the district court.” Jacobsen v. Deseret Book Co., 287 F.3d 936, 950

(10th Cir. 2002). We need not decide whether the June 28 letter was a qualified

1
      Plaintiffs have abandoned on appeal their claim that a July 1, 2002, letter
signed by plaintiffs themselves, rather than their attorney, was a qualified written
request.

                                         -5-
written request because even if it was, we conclude that AGF responded to it as

RESPA requires by sending a writing within 60 days explaining why it believed

the account was correct, and otherwise complying with RESPA. Aplee. Supp.

App. (appeal No. 06-3086), at 59-60. Plaintiffs have made no showing that

AGF’s response did not comply with RESPA.

      As for the other two letters, plaintiffs do not challenge the district court’s

determination that they filed suit before the applicable time limits expired. On

September 28, 2002, within twenty working days, AGF acknowledged receipt of

plaintiffs’ September 26 letter. Plaintiffs filed suit on November 4, 2002, before

the sixty-working-day deadline for a substantive response to the September 26

letter. Similarly, suit was filed before the twenty-working-day deadline to

acknowledge plaintiffs’ October 14 letter. Accordingly, these claims were not

ripe. See, e.g., Texas v. United States, 523 U.S. 296, 300 (1998) (“A claim is not

ripe for adjudication if it rests upon contingent future events that may not occur

as anticipated, or indeed may not occur at all.” (quotation omitted)). We affirm

the summary judgment on plaintiffs’ RESPA claims.

                           Civil Penalty Under the KCPA

      Plaintiffs also challenge the district court’s decision not to impose a civil

penalty on AGF for its violation of the KCPA. “When exercising jurisdiction

over pendent state claims, we must apply the substantive law of the forum state

and reach the same decision we believe that state’s highest court would, just as

                                          -6-
we would if our jurisdiction rested on diversity of citizenship.” Lytle v. City of

Haysville, 138 F.3d 857, 868 (10th Cir. 1998). We review the district court’s

decision not to impose a civil penalty under the KCPA for an abuse of discretion.

Dodson v. U-Needa Self Storage, LLC, 96 P.3d 667, 673 (Kan. Ct. App. 2004).

       The KCPA provides that “[a] consumer who is aggrieved by a violation of

[the] act may recover . . . damages or a civil penalty as provided in [Kan. Stat.

Ann. § 50-636(a)], whichever is greater.” Kan. Stat. Ann. § 50-634(b). Section

50-636(a) authorizes a civil penalty not to exceed $10,000 for each violation.

Kan. Stat. Ann. § 50-636(a).

       Plaintiffs argue that the district court was required to choose an amount for

a penalty and then decide whether to order AGF to pay it. Relying on Bell v.

Kent-Brown Chevrolet Co., 561 P.2d 907, 911 (Kan. Ct. App. 1977), superseded

by statute on other grounds, Kan. Stat. Ann. § 50-626, they assert that because a

successful consumer is to be awarded the greater amount of the penalty or the

damages award, the court is required to set a penalty amount. In a related

argument, plaintiffs assert that even though section 50-634(b) provides that a

consumer may recover damages or a civil penalty, the legislative intent was to

require the court to set a penalty amount. We are not persuaded. Neither the

statute nor Bell requires this and we see no indication that the Kansas legislature

intended such a requirement or that the Kansas appellate courts would impose

one.

                                          -7-
      Plaintiffs also contend that imposing a $10,000 civil penalty would serve

the KCPA’s purpose of “encourag[ing] aggrieved consumers with small claims to

file suit,” Equitable Life Leasing Corp. v. Abbick, 757 P.2d 304, 307 (Kan. 1988).

This may be so, but whether to impose a penalty and the amount are discretionary

with the court. Here, contrary to plaintiffs’ assertion that the district court did not

exercise its discretion at all, the court stated that it had reviewed its notes

regarding the trial and its instructions to the jury, and was “satisfied that the jury

adequately appraised defendant’s conduct as well as plaintiffs’ damages.” Aplt.

App. (appeal No. 06-3086), at 80. The record on appeal does not include the jury

instructions or trial transcripts; therefore, we cannot review the district court’s

determination that the jury adequately appraised the parties’ conduct. See Scott v.

Hern, 216 F.3d 897, 912 (10th Cir. 2000) (“Where the record is insufficient to

permit review we must affirm.”). Moreover, plaintiffs do not argue that the jury’s

conclusion was erroneous. Consequently, having reviewed the parties’

arguments, the applicable law, and the record provided, we cannot say that the

district court abused its discretion in deciding against imposing a civil penalty

under the KCPA.




                                           -8-
                     Appeal No. 06-3358 – Attorney Fee Award

      In this appeal, plaintiffs challenge the district court’s attorney-fee award of

$200.00 on their KCPA claim. 2 Attorney fees may be awarded under the KCPA

“if, inter alia, a supplier is found to have violated the act through judgment.”

Dodson, 96 P.3d at 673 (citing Kan. Stat. Ann. § 50-634(e)). The district court

noted that plaintiffs were successful due to their attorney’s efforts on one minor

KCPA claim, but their attorney did not segregate his time spent on the KCPA

claims from claims for which an attorney-fee award is not authorized. Therefore,

the court determined that an attorney fee of $200 was reasonable because it was

“consistent with a contingent fee following a trial and successful recovery.” Aplt.

App. (appeal No. 06-3358), at 73.

      Plaintiffs argue that a $200 fee is patently unreasonable, considering their

counsel’s time spent preparing their case and conducting a two-day trial. They

maintain that it is unreasonable to expect their attorney to keep separate time

records. In addition, they argue that their KCPA claims were inseparable from




2
       Plaintiffs’ attorney characterizes himself as the appellant in this appeal, but
he does not have standing to appeal the attorney-fee award. Weeks v. Indep. Sch.
Dist. No. I-89, 230 F.3d 1201, 1213 (10th Cir. 2000). We construe the
attorney-fee appeal as part of the merits appeal brought by plaintiffs since they
are parties to the appeal. Cf. Uselton v. Commercial Lovelace Motor Freight,
Inc., 9 F.3d 849, 854-55(10th Cir. 1993) (holding attorney lacked standing to
challenge amount of attorney fees awarded; plaintiffs not parties to the appeal).
Accordingly, this court has jurisdiction.

                                          -9-
their conversion claims, so they were entitled to their requested fees for the

claims on which the case went to trial.

      We apply an abuse-of-discretion standard of review to the district court’s

decision on attorney fees. Dodson, 96 P.3d at 673. “Where several causes of

action are joined and only some of them permit the award of attorney fees, the

work on several causes must be segregated in determining an attorney fee award.”

DeSpiegelaere v. Killion, 947 P.2d 1039, 1044 (Kan. Ct. App. 1997). If, however,

the KCPA claims are “inextricably intertwined” with other claims, the district

court need not separate attorney fees for each claim. York v. Intrust Bank, N.A.,

962 P.2d 405, 430 (Kan. 1998). But counsel assumes a risk if he does not

segregate his time, because “if [he has] made no attempt in [his] time records to

segregate [his] time as to different causes of action that are not mutual in their

facts and impossible of segregation, it could well be that a court could find a

failure of proof and award no attorney fees.” DeSpiegelaere, 947 P.2d at 1044-45.

      Plaintiffs press for a rule requiring an award of a reasonable attorney fee in

every KCPA case in order to encourage attorneys to pursue KCPA claims. They

rely on York, 962 P.2d at 430, for the proposition that segregation of time is not

required. In York, the trial court based the attorney-fee award on an expert

witness’s review of the attorneys’ time entry logs to calculate how much time the

attorneys spent prosecuting the KCPA claim. Id. Therefore, the attorney-fee

award in York was based on the time spent on the KCPA claim, even though the

                                          -10-
court found that the KCPA claim was inextricably intertwined with other claims.

See id. Plaintiffs have not cited any legal authority authorizing a departure from

established Kansas law requiring attorneys to segregate their time. DeSpiegelaere,

947 P.2d at 1044.

      Next, although plaintiffs do not argue that their attorney segregated his time

records, they contend that their KCPA claims were inextricably intertwined with

their conversion claim. 3 The conversion claim concerned the disability insurance

proceeds, while the successful KCPA claim was based on how plaintiffs’ payments

were applied to the two loan accounts. We conclude that plaintiffs have not

demonstrated that the two types of claims were inextricably intertwined to warrant

an award of attorney fees on the conversion claim. Based on this record, we find

no abuse of discretion in the district court’s attorney-fee award.




3
       Plaintiffs do not argue that their KCPA claims were inextricably
intertwined with their other claims, including those for a declaratory judgment for
an accounting, intentional infliction of emotional distress, and RESPA violations.
Although not made clear on appeal, we assume plaintiffs are requesting only
those fees generated on the KCPA and conversion claims, as discussed in their
attorney’s offer of proof to the district court to support an allowance of attorney
fees. Aplt. App. (appeal No. 06-3358), at 62-65.

                                         -11-
                            Conclusion

The judgment of the district court is AFFIRMED.


                                          Entered for the Court



                                          Stephen H. Anderson
                                          Circuit Judge




                                -12-
