HOMEWARD RESIDENTIAL, INC.
MARIANNE A. GREGOR
Argued: December 13, 2016
C. Feldman, Esq. (orally), Houser & Allison, APC, Boston,
Massachusetts, for appellant Homeward Residential, Inc.
A. Cox, Esq. (orally), Portland, for appellee Marianne A.
ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
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.
This is the second appeal to us arising out of a foreclosure
action instituted against Gregor 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. Id.
[¶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. 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.
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
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." 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. Homeward did not
seek reconsideration of the court's order.
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."
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. 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 ...