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Bank of America, N.A. v. Falabella

Superior Court of Maine, Cumberland

January 25, 2016

BANK OF AMERICA, N.A., Plaintiff,
v.
DOUGLAS H. FALABELLA and LORI L. FALABELLA, Defendants.

SHECHTMAN, HALPERIN & SAVAGE, LLP. Counsel for Plaintiff

S.JAMES LEVIS, JR., ESQ LAW OFFICE OF S. JAMES LEVIS, JR., PA. Counsel for Defendant's

ORDER ON DEFENDANTS' MOTION FOR ATTORNEY'S FEES AND MOTION FOR SANCTIONS

Lance E. Walker Justice, Superior Court

Before the court are Defendants Douglas and Lori Falabella's motion for attorney's fees and their motion for sanctions. For the following reasons, Defendants' motion for attorney's fees is granted in part and denied in part, and Defendants' motion for sanctions is denied.

I. BACKGROUND

Plaintiff filed this action for foreclosure in August 2013. (Compl. 1.) Defendants sought referral to the Foreclosure Diversion Program. (P1. Objct. to Def. Mot. Att'y Fees ¶ 1.) The first mediation session was held in January 2014, but a resolution was not reached. (1/13/14 Med. Report 1.) At this mediation session, Defendants indicated that they wished to apply for a modification, and a deadline for Defendants to submit materials required for this application was set for February 20, 2014. (Id. at 2.) On March 14, 2014, Plaintiff moved to terminate mediation because it had not received the materials. (PI. Mot. Terminate Med. 1.) On April 1, 2014, Defendants submitted some of the required materials. (P1. Objct. to Def. Mot. Att'y Fees ¶ 8.) A second mediation session occurred on April 4, 2014, Defendants were given an extension of 30 days to provide the remaining materials, which they did on or about April 29, 2014. (4/4/14 Med. Report 1; Def. Mot. Refer to Med. 1.) Plaintiff declined Defendants' application for a modification on May 9, 2014. (PL 2d Mot. Terminate Med. ¶ 6, Ex. A.)

Neither party filed a request for additional mediation sessions by the June 4, 2014, deadline, and the clerk restored the case to the civil docket. On July 11, 2014, Defendants requested a return to mediation, stating that they had not been aware that their application was denied. (Def. Mot. Refer to Med. 1.) The court returned the matter to the Foreclosure Diversion Program in late August 2014. (8/28/14 Order 1.) Plaintiff then filed a second motion to terminate mediation on the basis that it had provided Defendants with a letter in May 2014 that informed them their application for a modification had been denied. (P1. 2d Mot. Terminate Med. 1.) The court granted the motion to terminate and returned the case to the civil docket in late October 2014. (10/28/14 Order 1.)

In March 2015, Plaintiff filed a motion to dismiss its complaint because it did not wish to prosecute this action until it further reviewed the impact of Bank of Am., N.A. v. Greenleaf, 2014 ME 89, 96 A.3d 700, and CitiMortgage, Inc. v. Chartier, 2015 ME 17, 111 A.3d 39, on this case. (PL Mot. Dismiss ¶¶ 2-3.) The court granted dismissal without prejudice. (5/5/15 Order 1.)

On May 4, 2015, Defendants filed a motion for attorney's fees. (Def. Mot. Arty's Fees 1.) Plaintiff filed an objection to Defendants' motion on May 21, 2015. (PL Objct. to Def. Mot. Arty's Fees 1.) Defendants then filed a motion for sanctions on May 29, 2015, arguing that Plaintiff impermissibly included matters that allegedly occurred in the mediation sessions in its objection. (Def. Mot. Sane. 1.) Plaintiff filed an objection to the motion for sanctions on June 22, 2015. (PL Objct. to Def. Mot. Sane. 1.)

II. ANALYSIS

A. Motion for Attorney's Fees

Defendants seek $10, 855.46 in attorney's fees. (Def. Mot. Arty's Fees 1.) Defendants' attorney, James Levis, Jr., asserts that he spent a total of 33.30 hours working on this case, at a rate of $325.00 per hour. (Def. Mot. Arty's Fees 5; Levis Aff. ¶ 5.) Plaintiff argues that Defendants' delays unnecessarily increased their attorney's fees, that one of Mr. Levis's charges was in error, and that the amounts charged for "trial preparation" in December 2014 are excessive. (P1. Objct. to Def. Mot. Arty's Fees ¶¶ 20-23, 26.)

The statute governing attorney's fees in foreclosure actions provides:

If the mortgagee does not prevail, or upon evidence that the action was not brought in good faith, 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 ...

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