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Homeward Residential, Inc. v. Gregor

Supreme Court of Maine

June 22, 2017


          Argued: December 13, 2016

          Andrew C. Feldman, Esq. (orally), Houser & Allison, APC, Boston, Massachusetts, for appellant Homeward Residential, Inc.

          Thomas A. Cox, Esq. (orally), Portland, for appellee Marianne A. Gregor.


          HUMPHREY, J.

         [¶l] Homeward Residential, Inc., (Homeward) appeals from a judgment entered in the District Court (Belfast, R. Murray, /.) ordering it to pay Marianne A. Gregor's legal fees and costs pursuant to 14 M.R.S. § 6101 (2016) after dismissal of Homeward's foreclosure action against Gregor without prejudice. Homeward argues that because it did not have standing to bring the foreclosure action, it is not "the mortgagee" within the meaning of section 6101, and the court therefore could not order it to pay Gregor's attorney fees pursuant to that statute. In the alternative, Homeward argues that the court abused its discretion in setting the amount of fees owed and by including in that amount fees Gregor incurred pursuing an appeal. Gregor cross-appeals, urging us, in the event that the case is remanded, to review the court's decision not to apply a fee enhancement. We affirm the judgment.

         I. BACKGROUND

         [¶2] This is the second appeal to us arising out of a foreclosure action instituted against Gregor[1] in October 2011. See Homeward Residential, Inc. v. Gregor, 2015 ME 108, 122 A.3d 947. As we explained in Gregor, after a trial, the court determined that Homeward had not established the requisite ownership interest in the mortgage to have standing to foreclose, entered a judgment in Gregor's favor, made findings regarding an amount owed by Gregor on the relevant promissory note, and stated that "[t]he parties may relitigate issues discussed herein in a future action." Id. ¶¶ 1, 11-12. Gregor appealed, and we concluded that because Homeward lacked standing to pursue the foreclosure claim, the court could not decide the merits of the case. See id. ¶¶ 22-24. We therefore vacated the judgment in its entirety and remanded for the entry of a dismissal without prejudice.[2] Id. ¶ 26.

          [¶3] On remand, in October 2015, Gregor moved in the trial court for an award of legal fees and costs, arguing that the court should order Homeward to pay the attorney fees that she incurred in the litigation pursuant to 14 M.R.S. § 6101.[3] Homeward opposed Gregor's motion, contending that it was unable to respond adequately-and that the court would be unable to set a proper fee award-because Gregor had not provided affidavits or other details describing the specific legal fees she had incurred. Homeward did not argue that section 6101 could not apply because it was not "the mortgagee"; instead, it suggested that the court should limit any award based on various factual circumstances unrelated to its status regarding the mortgage. Gregor replied, stating,

What Gregor seeks first is a determination by the court that it will exercise its discretion to award her legal fees and costs under 14 M.R.S. §6101 due to the fact that Plaintiff did not prevail in this action. Once the court determines that Gregor should recover her fees and costs, only then it will become necessary and appropriate to determine the amount of fees and costs to be awarded.

         Gregor attached a proposed order setting forth a process by which (1) the court would decide that it had the authority to order Homeward to pay Gregor's legal fees; (2) Gregor's attorney would submit a fee affidavit; (3) the parties would attempt to agree on the amount of fees owed; and (4) if the parties could not agree, Gregor's attorney would submit the affidavit to the court and the court would determine what amount of fees to award. Homeward filed no reply to this proposal.

         [¶4] By order dated December 10, 2015, the court determined that it did have authority, pursuant to section 6101, to order Homeward to pay Gregor's "reasonable court costs and attorney fees."[4] The court stated that Homeward "shall be required to pay" the legal fees that Gregor incurred "in this matter, " and essentially adopted Gregor's proposed order setting forth the process by which the specific award would be calculated.[5] Homeward did not seek reconsideration of the court's order.

         [¶5] In accordance with the process the court outlined, Gregor filed a claim for fees and expenses along with her attorney's supporting affidavit and statement of time and expenses. In opposition, Homeward urged the court not to order Homeward to pay all of Gregor's fees and costs based on its view of various relevant factual circumstances. Homeward argued, for example, that any fee award should not include Gregor's appeal-related fees and that no enhancement was appropriate. Homeward did not raise the argument that section 6101 did not apply because, due to its lack of standing, it was not "the mortgagee."

         [¶6] In an order dated March 3, 2016, the court reiterated its determination that it had the authority to award Gregor attorney fees according to section 6101. After considering the factors involved in determining the amount of the award, the court ordered Homeward to pay attorney fees in the amount of $59, 115.[6] This figure represented the total number of hours Gregor's attorney worked on the case-including time spent working on the appeal-multiplied by the attorney's hourly rate. The court declined Gregor's request to impose a fee enhancement and Homeward's request to reduce the fee award. The court discussed and rejected Homeward's argument regarding the inclusion of Gregor's appeal-related fees and noted that ...

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