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U.S. Bank, N.A. v. Lowell

Superior Court of Maine, Cumberland

July 9, 2014

U.S. BANK, N.A., Plaintiff
v.
PENNY LOWELL, Defendant

ORDER ON DEFENDANT'S MOTION FOR ATTORNEY'S FEES

Nancy Mills, Justice, Superior Court.

Defendant prevailed in this foreclosure action after the court found plaintiff's witness was not qualified to testify regarding plaintiff's business records. Defendant moves for attorney's fees pursuant to 14 M.R.S. § 6101, which provides:

If the mortgagee does not prevail . . . the court may order the mortgagee to pay the mortgagor's reasonable court costs and attorney's fees incurred in defending against the foreclosure or any proceeding within the foreclosure action and deny in full or in part the award of attorney's fees and costs to the mortgagee.

14 M.R.S. § 6101 (2013). Plaintiff argues that defendant should not receive all of the requested fees for three reasons: (1) the loan modification work is not a " proceeding" within the meaning of the statute, (2) loan modification work is not legal in nature, and (3) defendant has requested fees for duplicative work.

1. Proceeding

Plaintiff first argues that the loan modification work performed by Attorney Bopp Stark does not constitute work performed in a proceeding within the foreclosure action. Plaintiff relies on Fenneman v. Town of Gorham, which involved a claim for attorney's fees under the federal Individuals with Disabilities Education Act. Fenneman v. Town of Gorham, 802 F.Supp. 542, 543 (D. Me. 1992). At issue in Fenneman was whether the plaintiffs could recover fees for work their attorney performed for a Pupil Evaluation Team (PET) meeting used to develop an Individualized Education Plan (IEP) for their disabled son. Id. at 544. The court interpreted the language of the statute, which authorizes attorney's fees " [i]n any action or proceeding brought under this subsection ... ." Id. at 545 (quoting 20 U.S.C. § 1415(e)(4)(B)). The court determined that PET meetings, which are informal meetings used to develop IEPs by consensus if possible, were not part of the litigation process and therefore awarded no fees for work on the PET meeting. Id. at 545-46.

Attorney Bopp Stark's work on the loan modification is distinguishable from the PET meeting in Fenneman. Defendant pursued a loan modification as a defense to the foreclosure action, just as an attorney in any other case would pursue settlement options. See, e.g., Quint v. A.E. Staley Mfg. Co., 245 F.Supp.2d 162, 177 (D. Me. 2003). Further, loan modification is an explicit part of the mediation process in foreclosure cases. See M.R. Civ. P. 93(g). Defendant's attorney was required to appear in person for mediation. M.R. Civ. P. 93(h)(1)(B). Finally, the court in Fenneman was concerned about encouraging adversarial conduct in the PET meetings, which are meant to be cooperative and informal. See Fenneman, 802 F.Supp.2d at 545-46. By contrast, awarding fees for work performed on loan modifications may encourage settlement.

2. Legal Work

Plaintiff argues next that the work performed by Attorney Bopp Stark on the loan modification was not legal work and therefore not compensable. Plaintiff cites two cases to support its argument. First, in Raymond v. Raymond, plaintiff correctly points out that the Superior Court distinguished between " lawyering" and " non-lawyering" time. Raymond v. Raymond, (May 26, 1983). By " non-lawyering" time, the court was referring to " periods when counsel are waiting around or spending time in their motor vehicles traveling to or from a particular location." Id. Second, in Adams v. Bowater, Inc., the court disallowed certain administrative hours billed by attorneys. Adams v. Bowater, Inc., 2004 WL 1572697, at *8 (D. Me. May 19, 2004.). The court concluded the claimed time was unreasonable and reduced the number of hours billed. Id.

Defendant's request for fees for legitimate work on a loan modification agreement is not the type of work the Raymond court disallowed. As discussed, defendant's attorney performed the loan modification work in an effort to settle the case and prevent foreclosure. As attorney's fees cases make clear, the proper inquiry is whether the billed time is reasonable. See Poussard v. Commercial Credit Plan, Inc. of Lewiston, 479 A.2d 881, 886 (Me. 1984) (noting " the difficulty in measuring hours reasonably expended in advancing the client's interests"); see also Adams, 2004 WL 1572697, at *8.

3. Duplicative Hours

Plaintiff argues finally that certain hours billed by defendant's attorneys are duplicative.[1] The fact that an attorney and a paralegal worked on the same matters does not preclude payment for that work. The case cited by plaintiff does not suggest otherwise. See Mowles v. Me. Comm'n on Governmental Ethics & Election Practices, 2009 WL 1747859, at *17 (Me. Super. April 10, 2009) (disallowing hours because there was " no need for two attorneys to attend oral argument when only one attorney has the opportunity to present").

4. Affidavits of Counsel

Neither Attorney D'Alessandro nor Attorney Bopp Stark has provided the nature of the fee agreement each had with defendant. Additional information, particularly from Attorney D'Alessandro, will be helpful to the determination of reasonable fees. See M.R. Prof. Conduct 1.5; Nadeau v. Nadeau, 2008 ME 147, I 59, 957 A.2d 108; see Coutin v. Young and Rubicam P.R., Inc., 124 F.3d 331, 337 (1st Cir. 1997); D'Alessandro Aff.; Bopp Stark Aff. They will be given an opportunity to file amended affidavits.

The entry is

Attorney D'Alessandro and Attorney Bopp Stark will submit revised affidavits that comply with the authorities cited above within 20 days of the date of this order. Plaintiff will have 10 days after receipt of the affidavits to file any response.

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