Lima v. Wachovia Mortgage Corporation et al

Filing 42

ORDER for Supplemental Briefing re 28 MOTION for Attorney Fees filed by Wachovia Mortgage Corporation. (tehlc4, COURT STAFF) (Filed on 4/26/2010)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

OSVALDINA LIMA, Plaintiff, v. WACHOVIA MORTGAGE CORPORATION, et al., Defendants. NO. C09-04798 TEH ORDER FOR SUPPLEMENTAL BRIEFING RE DEFENDANT'S MOTION FOR ATTORNEYS' FEES

United States District Court

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For the Northern District of California

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This matter is before the Court on the motion for attorneys' fees filed by Defendant

13 Wachovia Mortgage FSB ("Wachovia"). Wachovia asserts that it is entitled to attorneys' 14 fees as the prevailing party in this action pursuant to provisions of the promissory note and 15 deed of trust entered into by Plaintiff Osvaldina Lima ("Lima"). Wachovia argues that state 16 law governs a party's right to attorneys' fees for state law claims, MRO Commc'ns, Inc. v. 17 AT&T Co., 197 F.3d 1276, 1280-82 (9th Cir. 1999), and that California law allows for the 18 award of attorneys' fees where authorized by contract, Cal. Code Civ. Proc. §§ 1021 & 19 1033.5(a)(10). 20 However, Lima's complaint asserted violations of two federal statutes: the Truth in 21 Lending Act ("TILA"), 15 U.S.C. §§ 1635, 1640, and the Real Estate Settlement Procedures 22 Act ("RESPA"), 12 U.S.C. § 2603. Jurisdiction was premised on the existence of a federal 23 question, and no claims were asserted under state law. The basis for Wachovia's assertion 24 that state law governs this motion is therefore unclear. If state law is inapplicable, Wachovia 25 has provided no federal authority that would justify the attorneys' fee award it requests on 26 this motion. 27 The Court therefore VACATES the hearing that had been set for May 3, 2010, and 28 requests supplemental briefing on this issue. No later than May 3, 2010, Wachovia shall file

1 a brief not to exceed seven pages explaining the basis for its contention that California law 2 governs this motion. If Wachovia concedes that California law is inapplicable, the 3 supplemental brief shall set out the appropriate standard under federal law, and apply that 4 standard to the instant motion. Lima shall file a response to Wachovia's supplemental brief, 5 not to exceed seven pages, by May 10, 2010. 6 7 IT IS SO ORDERED. 8 9 Dated: 4/26/10 10 THELTON E. HENDERSON, JUDGE UNITED STATES DISTRICT COURT

United States District Court

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For the Northern District of California

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