Cordero v. Bank of America, N.A. et al

Filing 27

MEMORANDUM DECISION AND ORDER granting in part and denying in part 24 Motion for Attorney Fees. Defendant Fidelity National Title Insurance Company is entitled to an award of attorney fees in the amount of $1,966.25. An amended form of judgment may be submitted by Fidelity. Signed by Judge Candy W Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) (mailed by jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

KRISTIN CORDERO,
Case No. 1:12-cv-00099-CWD
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
AMERICA’S WHOLESALE LENDER
AKA COUNTRYWIDE HOME
LOANS INC. AKA BAC HOME
LOAN SERVICING INC. LP AKA
BANK OF AMERICA HOME LOANS,
N.A.; FIDELITY NATIONAL TITLE
INSURANCE CO.; MORTGAGE
ELECTRONIC REGISTRATION
SYSTEMS INC. (MERS);
RECONTRUST COMPANY, N.A.;
FANNIE MAE/FREDDIE MAC; John
and Jane Does, 1-thru-20, individuals
working for above Defendants;
Unknown Business 1-thru Entities 20,
Defendants.

Fidelity National Title Insurance Company filed a timely motion for attorney fees
on November 6, 2012. (Dkt. 24.) Fidelity seeks its attorney fees under Fed. R. Civ. P.
54(d), and Idaho Code § 12-121, claiming Plaintiff Kristin Cordero pursued her lawsuit
against Fidelity without foundation.
The parties have fully briefed the motion and it is now ripe for the Court’s
consideration. Having reviewed the record herein, the Court finds that the facts and legal
MEMORANDUM DECISION AND ORDER - 1

arguments are adequately presented in the briefs and record. Accordingly, in the interest
of avoiding delay, and because the Court conclusively finds that the decisional process
would not be significantly aided by oral argument, the motion will be decided on the
record before this Court without oral argument. Dist. Idaho L. Rule 7.1(d).
BACKGROUND
On October 28, 2011, Cordero filed a Complaint in the Fourth Judicial District of
the State of Idaho, identifying Fidelity as a party defendant. On March 1, 2012, the case
was removed to this Court by Defendant Bank of America. On March 14, 2012, Fidelity
filed a Motion to Dismiss. Cordero failed to timely respond, and on August 1, 2012, the
Court entered an order denying the Cordero’s Notice of Intent to Respond to Defendant’s
Motion to Dismiss. On October 15, 2012, the Court filed a Memorandum Decision and
Order, granting Fidelity’s requested relief, and on October 23, 2012, the Court entered
judgment against Cordero, dismissing her Complaint with prejudice in its entirety without
leave to amend.
Fidelity was named as the trustee in the Deed of Trust when the loan was
originated on March 9, 2006. However, ReconTrust was appointed as successor trustee
and initiated foreclosure proceedings by sending a Notice of Default on May 1, 2009.
Cordero’s first cause of action alleged that Fidelity and the Bank Defendants breached
their fiduciary duties owed to Cordero by “refusing to cooperate with Plaintiff’s efforts”
at a loan modification. The Court dismissed these claims as asserted against Fidelity,
because Fidelity was not the trustee at the time of foreclosure, and therefore did not owe
Cordero any duty related to the foreclosure proceedings. Moreover, Cordero alleged no
MEMORANDUM DECISION AND ORDER - 2

facts that Fidelity owed or breached any duty prior to ReconTrust’s appointment as
successor trustee.
Cordero’s third cause of action alleged violation of TILA and RESPA against
Fidelity and the Bank Defendants. The Court found the applicable statute of limitations
barred the TILA and RESPA claims. All of Cordero’s remaining claims were asserted
against other defendants.
Fidelity argues the claims against it were asserted without foundation or factual
support, and as the prevailing party, it is entitled to fees under both Fed. R. Civ. P. 54 and
Idaho Code § 12-121. The amount of fees total $3,932.50 for 20.5 hours of attorney
time. 1 Cordero, who appeared pro se in this matter, filed an objection. She claims her
case clearly stated a claim, and she did not file any claims that were frivolous, malicious,
harassing or unreasonable. In response, Fidelity notes that, although Cordero filed her
complaint, she took no further action to support or prosecute her claims. Further, Fidelity
reiterates that Cordero compelled it to appear and defend without foundation, because
Fidelity was no longer the trustee at the time of foreclosure. Fidelity complains that
Cordero’s sole purpose in filing her complaint was to delay the foreclosure.
ANALYSIS
Under the Federal Rules of Civil Procedure, “a claim for attorney’s fees and
related nontaxable expenses must be made by motion.” Fed. R. Civ. P. 54(d)(2)(A). The
motion “must specify the judgment and the statute, rule or other grounds entitling the
movant to the award.” Fed. R. Civ. P. 54(d)(2)(B)(ii). Pursuant to Dist. Idaho L. Civ. R.
1

Attorney Clayton Gill, a shareholder with Moffat Thomas, billed 11.5 hours at an hourly rate of $205.00. Associate
Matthew McGee billed 9 hours at an hourly rate of $175.00.

MEMORANDUM DECISION AND ORDER - 3

54.2, “[c]laims for attorney fees will not be treated as routine items of costs. Attorney
fees will only be allowed upon an order of the judge of the Court after such fact-finding
process as the judge orders.” Dist. Idaho L. Rule 54.2(a).
An award of attorney fees incurred in a lawsuit based on state substantive law
generally is governed by state law. Champion Produce, Inc. v. Ruby Robinson Co., Inc.,
342 F.3d 1016, 1024 (9th Cir. 2003). Fidelity’s alternative basis for an award of attorney
fees is Idaho Code § 12-121. Attorney fees may be awarded under this statute if the case
was brought, pursued, or defended frivolously, unreasonably, or without foundation.
Ackerman v. Bonneville County, 92 P.3d 557, 563 (Idaho Ct. App. 2004); Idaho R. Civ.
P. 54(e)(1). The applicable legal standard is whether “all claims brought or all defenses
asserted are frivolous and without foundation.” Rockefeller v. Grabow, 39 P.3d 577, 585
(2001) (internal quotation marks and citation omitted). An award of attorney’s fees under
this section is a discretionary decision. Lohman v. Flynn, 78 P.3d 379, 388 (2003).
Cordero asserted claims against Fidelity based upon federal law, as well as a claim
under state law for breach of fiduciary duty. However, Fidelity did not cite the Court to
any fee provision under TILA or RESPA, or another federal statute, which would entitle
Fidelity to attorney fees as the prevailing party on those claims, as required by Rule
54(d)(2)(B)(ii). State law does not provide a basis for an award of attorney fees for the
federal claims, only for the state law breach of fiduciary duty claim.
The Court finds that Cordero’s breach of fiduciary duty claim against Fidelity rose
to the level of being unreasonable and frivolous. There were no factual allegations in the
Complaint giving rise to conduct that would support a claim against Fidelity. Fidelity was
MEMORANDUM DECISION AND ORDER - 4

simply named in the complaint. Cordero failed to respond to the motions to dismiss, or
otherwise defend against the motions. Given the circumstances, the Court finds that the
breach of fiduciary duty claim was pursued frivolously, without merit, and without hope
for success. The Court will award Fidelity attorney fees for having to defend against the
breach of fiduciary duty claim.
In reviewing the fee affidavit, the Court finds that the time spent by both senior
and junior counsel was appropriate and reasonable, as were the respective hourly rates of
$205 and $175. In the exercise of its discretion, the Court will award one-half of the
attorney fees requested, considering there is a statutory basis for an award of fees for only
one of the two claims asserted against Fidelity. Fidelity is therefore awarded attorney fees
in the amount of $1,966.25.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
Defendant Fidelity National Title Insurance Company’s Motion for Award of
Attorney Fees (Dkt. 24) is GRANTED in part and DENIED in part. Defendant is
entitled to an award of attorney fees in the amount of $1,966.25. An amended form of
judgment may be submitted by Fidelity.
January 14, 2013

MEMORANDUM DECISION AND ORDER - 5