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TD Bank, N.A. v. Estate of Woodman

United States District Court, D. Maine

June 21, 2019

TD BANK, N.A., Plaintiff,
v.
ESTATE OF BRUCE H. WOODMAN, through Stephanie Albert f/k/a Stephanie Green, Special Administrator, ANITA KENERSON PRICKETT, BONITA C. BUNKER, LINDSAY ASHWORTH KRAUSS, MARIAH FELLOW KRAUSE, MATTHEW FREDERICK KRAUSS, COURTNEY KRAUSS, KATHERINE KRAUSS HINDS, STEPHEN ALLEN COULOMBE, PAMELA COULOMBE ROSS, KEVIN CARL COULOMBE, VALERIE M. BERNIER, BRIAN C. KENERSON, BRADLEY PAIGE KENERSON SR., ERIC RUNE NORBERG, PAUL A. KENERSON, JR., LIZBETH KENERSON VILLACARO, DAPHNE B. LAZOR, BRENDA E. COLLINS KENERSON, JODI PERROW, CRAIG D. PERROW, and FRANK B. KENERSON, JR., Defendants.

          ORDER DEFERRING RULING ON MOTION FOR ATTORNEY'S FEES

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

         Where 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.

         I. BACKGROUND

         On May 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).

         Three 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).

         On 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).

         TD Bank 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).

         II. DISCUSSION

         A. Legal Standard

         1. Maine's Foreclosure Statute

         Maine's 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.

         2. The First Circuit Analytic Approach

         A 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 circumstances.” Id.

         The 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 ...


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