United States District Court, D. Maine
ORDER DEFERRING RULING ON MOTION FOR ATTORNEY'S
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
plaintiff has brought both a foreclosure action and a
partition action in one lawsuit, the Court defers ruling on a
motion for attorney's fees to allow the plaintiff to
demonstrate that they have properly allocated between the
legal services chargeable pursuant to M.R.S. § 6101 and
non-chargeable legal services and to address the impact of a
flat fee agreement on the fee award.
3, 2017, TD Bank, N.A. (TD Bank) filed in this Court a
foreclosure complaint against the Estate of Bruce Woodman and
a partition action against both the Estate and the Kenerson
heirs. Comp. (ECF No. 1). The Estate of Bruce
Woodman answered the Complaint on May 15, 2017. Answer to
Comp. (ECF No. 7). TD Bank filed a motion to amend the
Complaint on September 13, 2017, First Mot. for Leave to
File First Am. Compl. (ECF No. 11), and the Court
granted the motion on September 14, 2017. Order Granting
Mot. to Am. Compl. (ECF No. 12). TD Bank filed the
Amended Complaint on September 19, 2017. First Am.
Compl. (ECF No. 13).
of the Kenerson heirs answered the partition action.
Answer of Eric Rune Norberg (ECF No. 15); Answer
to Am Compl. of Katherine Krauss Hinds (ECF No. 36);
Answer to Am. Compl. of Mariah Fellow Krauss (ECF
No. 42). The others have not answered and have been
defaulted. Req. to Clerk to Enter Default Against Defs.
Anita Kenerson Prickett, Bonita C. Bunker, Lindsay Ashworth
Krauss, Matthew Frederick Krauss, Pamela Coulombe Ross, Kevin
Carl Coulombe, Valerie M. Bernier, Brian C. Kenerson, Bradley
Paige Kenerson Dr., Paul A. Kenerson Jr., Lizbeth Kenerson
Villacaro, Daphne B. Lazor, Brenda E. Collins Kenerson and
Jodi Perrow (ECF No. 38); Order Granting Mot. for
Entry of Default (ECF No. 39); Req. to Clerk to
Enter Default Against Defs. Courtney Krauss, Stephen Allen
Coulombe, Craig D. Perrow, and Frank B. Kenerson (ECF
No. 51); Order Granting Mot. for Entry of Default
(ECF No. 52).
December 21, 2018, TD Bank filed a motion to sever the
foreclosure action from the partition action and to stay the
partition action pending resolution of the foreclosure
action. Combined Mot. to Sever and Mot. to Stay Partition
Cls. Pending Resolution of Foreclosure Cls. (ECF No.
67). None of the defendants responded, and on January 24,
2019, the Court granted TD Bank's motion. Order
Granting Mot. to Sever and Mot. to Stay Partition
Proceeding (ECF No. 68).
filed a consent motion for judgment on February 5, 2019,
Consent Mot. for J (ECF No. 69) along with a
proposed consent judgment of foreclosure and sale,
Proposed Consent J. of Foreclosure and Sale (ECF No.
70). The Court granted the consent motion for judgment and
issued a judgment of foreclosure and sale on February 7,
2019. J. of Foreclosure and Sale (ECF No. 72). On
April 25, 2019, TD Bank filed a motion for attorney's
fees and costs along with a bill of costs. Mot. for
Attorney Fees and Costs (ECF No. 78) (Pl.'s
Mot.); Bill of Costs (ECF No. 79). The
Defendants has not responded to the motion. The Court issued
an order granting in part and denying in part TD Bank's
Bill of Costs. Order Granting in Part and Denying in Part
Bill of Costs (ECF No. 81).
Maine's Foreclosure Statute
foreclosure statute allows a mortgagee who prevails in a
foreclosure action to charge reasonable attorney's fees
against the mortgaged estate. 14 M.R.S. § 6101. In light
of the Judgment of Foreclosure and Sale granting the
parties' consent motion for judgment, J., the
Court agrees that TD Bank may charge reasonable
attorney's fees on the mortgaged estate. At the same
time, TD Bank has not contended that it is entitled to charge
attorney's fees against the mortgaged estate for legal
work made necessary by the partition action. Therefore, it is
incumbent upon the Court to make certain that TD Bank has
properly separated out the foreclosure work, which is
chargeable against the mortgaged estate, from the partition
work, which is not.
The First Circuit Analytic Approach
second consideration is whether the proposed fees are
reasonable. 14 M.R.S. § 6101 (“[T]he mortgagee . .
. may charge a reasonable attorney's
fee”). The First Circuit described the proper
approach for determining whether the fees requested are
reasonable in Lipsett v. Blanco, 975 F.2d 934, 937
(1st. Cir. 1992). “Ordinarily, the trial court's
starting point in fee-shifting cases is to calculate a
lodestar; that is, to determine the base amount of the fee to
which the prevailing party is entitled by multiplying the
number of hours productively expended by counsel times a
reasonable hourly rate.” Id. at 937 (citing
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). A
trial court should “compute the loadstar amount by
ascertaining the time counsel actually spent on the case
‘and then subtracting from that figure hours which are
duplicative, unproductive, excessive, or otherwise
unnecessary.” Id. (quoting Grendel's
Den, Inc., v. Larkin, 749 F.2d 945, 950 (1st Cir.
1984)). The court “then applies hourly rates to the
constituent tasks, taking into account the ‘prevailing
rates in the community for comparably qualified
attorneys.'” Id. (quoting United
States v. Metro. Dist. Comm'n, 847 F.2d 12, 19 (1st
Cir. 1988)). “Once established, the lodestar represents
a presumptively reasonable fee, although it is subject to
upward or downward adjustment in certain
Defendants have not responded to TD Bank's motion and put
forth no objection. Even in the absence of objection,
“[i]t remains for the district court to determine what
fee is ‘reasonable.'” Hensley, 461
U.S. at 433 ...