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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Thomas E. Russell, Plaintiff, 10 11 vs. 12 OneWest Bank, FSB, et al., 13 Defendants. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV 11-01463-PHX-FJM ORDER 15 16 We have before us defendants' motion for attorneys' fees (doc. 40), memorandum of 17 points and authorities in support (doc. 46), plaintiff's opposition (doc. 57), and defendants' 18 reply (doc. 62). Defendants OneWest Bank, FSB ("OneWest"), Deutsche Bank National 19 Trust Company as Trustee for IndyMac INDX Mortgage Loan Trust 2006-AR31, and Merrill 20 Lynch Mortgage Lending, Inc. (collectively, the "OneWest defendants") request $18,380.00 21 in attorneys' fees based on 69.10 hours of work at rates between $190 and $425 per hour. 22 I 23 Plaintiff refinanced his Cave Creek home in 2006 by borrowing $1,000,000 from 24 Fairway Independent Mortgage Corp. The loan was secured by a deed of trust. The 25 beneficial interest in the note and deed of trust were later assigned to OneWest. Plaintiff 26 defaulted on his loan payments and a notice of trustee's sale was recorded. 27 Plaintiff's first amended complaint alleged quiet title against the OneWest defendants 28 and breach of good faith and fair dealing, violation of A.R.S. § 33-420, and negligent 1 performance of an undertaking against OneWest. (Doc. 13). We granted defendants' motion 2 to dismiss on October 20, 2011. (Doc. 30). We denied plaintiff's motion for reconsideration 3 on November 15, 2011. (Doc. 34). 4 II 5 Defendants contend they are entitled to fees under the deed of trust, which provides 6 that "Lender shall be entitled to collect all expenses incurred in pursuing the remedies 7 provided in this Section 22, including, but not limited to, reasonable attorneys' fees and costs 8 of title evidence." (Doc. 1, ex. A at 47). Plaintiff claims that none of the moving defendants 9 is listed as lender on his deed of trust and therefore this provision does not apply. But 10 plaintiff repeatedly claimed elsewhere that defendants were in privity with the original 11 lender. He alleged that the OneWest defendants asserted an ownership interest in the deed 12 of trust. And the lender assigned the deed of trust to OneWest. (Doc. 1, ex. A at 150). 13 Plaintiff also claims that the fees requested were not incurred "in pursuing the remedies 14 provided" by section 22 of the deed of trust. But the actions of defendants were necessary 15 to pursue their foreclosure remedy. They are entitled to fees under the deed of trust. In the 16 alternative, even if privity were not sufficient, defendants would be entitled to fees under 17 A.R.S. § 12-341.01(A). 18 The deed of trust allows for recovery of "reasonable" fees. Defendants seek 19 $18,380.00 for a simple matter decided on a motion to dismiss. The hourly rate of $425 per 20 hour exceeds prevailing Phoenix rates for this kind of case and its reasonableness is not 21 supported by defendants' affidavit. We think 20 hours at $250.00 per hour would be 22 sufficient to get a non-meritorious complaint dismissed. 23 24 25 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. 26 27 28 -2-

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