Dufour v. Nationstar Mortgage LLC et al

Filing 15

ORDER granting 10 Defendant's Motion for Attorney Fees in the amount of $3,750.00. Signed by Judge Frederick J Martone on 11/19/12.(DMT)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Judy Dufour,
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Plaintiff,
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vs.
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Nationstar Mortgage LLC, et al.,
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Defendants.
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No. CV-12-1579-PHX-FJM
ORDER

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On August 24, 2012, we entered an order granting defendants’ motions to dismiss

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(doc. 8). Plaintiff did not respond to the motions and because we concluded that any

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amendment to the complaint would be futile we dismissed the case with prejudice. We now

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have before us defendant Nationstar Mortgage’s motion for attorney’s fees (doc. 10) and

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memorandum in support (doc. 13). Again, plaintiff did not respond to the motion and the

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time for doing so has expired.

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Defendant contends that it is entitled to attorney’s fees as the prevailing party pursuant

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to the promissory note and A.R.S. § 12-341.01. The promissory note provides that “[i]f the

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Note Holder has required me to pay immediately in full as described above, the Note Holder

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will have the right to be paid back by me for all of its costs and expenses in enforcing this

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Note to the extent not prohibited by applicable law. Those expenses include, for example,

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reasonable attorneys’ fees.” Motion, ex. A. Here, plaintiff initiated this action in order to

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“[d]eclare the Deed of Trust to be null and void,” and “the promissory note to be declared

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fully discharged.” Complaint at 40. In defending this action, defendant sought to enforce

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the note and deed of trust. Therefore, attorney’s fees are proper under the parties’ contract.1

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Although the note provides that defendant is entitled to “all of its costs and expenses,”

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we retain discretion to limit any such award to a reasonable amount.

Defendant

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acknowledges that it is only entitled to “reasonable attorneys’ fees.” Motion for Fees at 3.

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Defendant seeks fees in the amount of $16,475.40. Under the circumstances of this case, we

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conclude that this request is not reasonable.

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This was a simple matter that was resolved on an unopposed motion to dismiss.

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Defendant employed three lawyers, with hourly rates ranging from $346.00 to $247.00 an

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hour—with those fees in the higher range exceeding prevailing Phoenix rates on this kind of

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matter. The lawyers spent more than 54 hours defending against what they viewed as a

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frivolous complaint based on “legal notions that have been debunked and rejected countless

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times in this jurisdiction.” Motion to Dismiss at 1. The legal questions presented, involving

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Arizona’s deed of trust statute, and claims based on “show me the note” and “vapor money”

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theories are not novel, but instead have been repeatedly rejected by state and federal courts.

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We think 15 hours at $250.00 per hour, for a total award of $3,750.00, would be reasonable

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to get this frivolous complaint dismissed.

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IT IS ORDERED GRANTING defendant’s motion for an award of attorney’s fees
(doc. 10) in the amount of $3,750.00.
DATED this 19th day of November, 2012.

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We note that whether we apply the parties’ contractual fee provision or A.R.S. § 12341.01, our conclusion with respect to the fee award would be the same.
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