Russell v. OneWest Bank FSB et al

Filing 72

ORDER GRANTING defendants' motion for an award of attorneys' fees in the amount of $5,000.00. (Doc. 40 ). Signed by Judge Frederick J Martone on 5/21/2012.(KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Thomas E. Russell,
Plaintiff,

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vs.

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OneWest Bank, FSB, et al.,
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Defendants.
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No. CV 11-01463-PHX-FJM
ORDER

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We have before us defendants' motion for attorneys' fees (doc. 40), memorandum of

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points and authorities in support (doc. 46), plaintiff's opposition (doc. 57), and defendants'

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reply (doc. 62). Defendants OneWest Bank, FSB ("OneWest"), Deutsche Bank National

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Trust Company as Trustee for IndyMac INDX Mortgage Loan Trust 2006-AR31, and Merrill

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Lynch Mortgage Lending, Inc. (collectively, the "OneWest defendants") request $18,380.00

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in attorneys' fees based on 69.10 hours of work at rates between $190 and $425 per hour.

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Plaintiff refinanced his Cave Creek home in 2006 by borrowing $1,000,000 from

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Fairway Independent Mortgage Corp. The loan was secured by a deed of trust. The

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beneficial interest in the note and deed of trust were later assigned to OneWest. Plaintiff

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defaulted on his loan payments and a notice of trustee's sale was recorded.

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Plaintiff's first amended complaint alleged quiet title against the OneWest defendants

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and breach of good faith and fair dealing, violation of A.R.S. § 33-420, and negligent

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performance of an undertaking against OneWest. (Doc. 13). We granted defendants' motion

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to dismiss on October 20, 2011. (Doc. 30). We denied plaintiff's motion for reconsideration

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on November 15, 2011. (Doc. 34).

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II

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Defendants contend they are entitled to fees under the deed of trust, which provides

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that "Lender shall be entitled to collect all expenses incurred in pursuing the remedies

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provided in this Section 22, including, but not limited to, reasonable attorneys' fees and costs

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of title evidence." (Doc. 1, ex. A at 47). Plaintiff claims that none of the moving defendants

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is listed as lender on his deed of trust and therefore this provision does not apply. But

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plaintiff repeatedly claimed elsewhere that defendants were in privity with the original

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lender. He alleged that the OneWest defendants asserted an ownership interest in the deed

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of trust. And the lender assigned the deed of trust to OneWest. (Doc. 1, ex. A at 150).

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Plaintiff also claims that the fees requested were not incurred "in pursuing the remedies

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provided" by section 22 of the deed of trust. But the actions of defendants were necessary

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to pursue their foreclosure remedy. They are entitled to fees under the deed of trust. In the

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alternative, even if privity were not sufficient, defendants would be entitled to fees under

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A.R.S. § 12-341.01(A).

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The deed of trust allows for recovery of "reasonable" fees. Defendants seek

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$18,380.00 for a simple matter decided on a motion to dismiss. The hourly rate of $425 per

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hour exceeds prevailing Phoenix rates for this kind of case and its reasonableness is not

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supported by defendants' affidavit. We think 20 hours at $250.00 per hour would be

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sufficient to get a non-meritorious complaint dismissed.

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Therefore, IT IS ORDERED GRANTING defendants' motion for an award of
attorneys' fees in the amount of $5,000.00. (Doc. 40).
DATED this 21st day of May, 2012.

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