TD BANK NA v. ESTATE OF BRUCE H WOODMAN et al

Filing 82

ORDER DEFERRING RULING ON MOTION FOR ATTORNEY'S FEES reserving ruling 78 Motion for Attorney Fees By JUDGE JOHN A. WOODCOCK, JR. (CCS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
TD BANK, N.A.,

)
)
Plaintiff,
)
)
v.
)
)
ESTATE OF BRUCE H. WOODMAN, )
through Stephanie Albert f/k/a
)
Stephanie Green, Special
)
Administrator, ANITA KENERSON )
PRICKETT, BONITA C. BUNKER,
)
LINDSAY ASHWORTH KRAUSS,
)
MARIAH FELLOW KRAUSE,
)
MATTHEW FREDERICK KRAUSS, )
COURTNEY KRAUSS, KATHERINE )
KRAUSS HINDS, STEPHEN ALLEN )
COULOMBE, PAMELA COULOMBE )
ROSS, KEVIN CARL COULOMBE, )
VALERIE M. BERNIER, BRIAN C. )
KENERSON, BRADLEY PAIGE
)
KENERSON SR., ERIC RUNE
)
NORBERG, PAUL A. KENERSON, )
JR., LIZBETH KENERSON
)
VILLACARO, DAPHNE B. LAZOR, )
BRENDA E. COLLINS KENERSON, )
JODI PERROW, CRAIG D. PERROW, )
and FRANK B. KENERSON, JR.,
)
)
Defendants.
)

2:17-cv-00163-JAW

ORDER DEFERRING RULING ON MOTION FOR ATTORNEY’S FEES
Where plaintiff has brought both a foreclosure action and a partition action in
one lawsuit, the Court defers ruling on a motion for attorney’s fees to allow the
plaintiff to demonstrate that they have properly allocated between the legal services

chargeable pursuant to M.R.S. § 6101 and non-chargeable legal services and to
address the impact of a flat fee agreement on the fee award.
I.

BACKGROUND
On May 3, 2017, TD Bank, N.A. (TD Bank) filed in this Court a foreclosure

complaint against the Estate of Bruce Woodman and a partition action against both
the Estate and the Kenerson heirs.

Comp. (ECF No. 1).

The Estate of Bruce

Woodman answered the Complaint on May 15, 2017. Answer to Comp. (ECF No. 7).
TD Bank filed a motion to amend the Complaint on September 13, 2017, First Mot.
for Leave to File First Am. Compl. (ECF No. 11), and the Court granted the motion
on September 14, 2017. Order Granting Mot. to Am. Compl. (ECF No. 12). TD Bank
filed the Amended Complaint on September 19, 2017. First Am. Compl. (ECF No.
13).
Three of the Kenerson heirs answered the partition action. Answer of Eric
Rune Norberg (ECF No. 15); Answer to Am Compl. of Katherine Krauss Hinds (ECF
No. 36); Answer to Am. Compl. of Mariah Fellow Krauss (ECF No. 42). The others
have not answered and have been defaulted. Req. to Clerk to Enter Default Against
Defs. Anita Kenerson Prickett, Bonita C. Bunker, Lindsay Ashworth Krauss, Matthew
Frederick Krauss, Pamela Coulombe Ross, Kevin Carl Coulombe, Valerie M. Bernier,
Brian C. Kenerson, Bradley Paige Kenerson Dr., Paul A. Kenerson Jr., Lizbeth
Kenerson Villacaro, Daphne B. Lazor, Brenda E. Collins Kenerson and Jodi Perrow
(ECF No. 38); Order Granting Mot. for Entry of Default (ECF No. 39); Req. to Clerk to
Enter Default Against Defs. Courtney Krauss, Stephen Allen Coulombe, Craig D.

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Perrow, and Frank B. Kenerson (ECF No. 51); Order Granting Mot. for Entry of
Default (ECF No. 52).
On December 21, 2018, TD Bank filed a motion to sever the foreclosure action
from the partition action and to stay the partition action pending resolution of the
foreclosure action. Combined Mot. to Sever and Mot. to Stay Partition Cls. Pending
Resolution of Foreclosure Cls. (ECF No. 67). None of the defendants responded, and
on January 24, 2019, the Court granted TD Bank’s motion. Order Granting Mot. to
Sever and Mot. to Stay Partition Proceeding (ECF No. 68).
TD Bank filed a consent motion for judgment on February 5, 2019, Consent
Mot. for J (ECF No. 69) along with a proposed consent judgment of foreclosure and
sale, Proposed Consent J. of Foreclosure and Sale (ECF No. 70). The Court granted
the consent motion for judgment and issued a judgment of foreclosure and sale on
February 7, 2019. J. of Foreclosure and Sale (ECF No. 72). On April 25, 2019, TD
Bank filed a motion for attorney’s fees and costs along with a bill of costs. Mot. for
Attorney Fees and Costs (ECF No. 78) (Pl.’s Mot.); Bill of Costs (ECF No. 79). The
Defendants has not responded to the motion. The Court issued an order granting in
part and denying in part TD Bank’s Bill of Costs. Order Granting in Part and
Denying in Part Bill of Costs (ECF No. 81).
II.

DISCUSSION
A.

Legal Standard
1.

Maine’s Foreclosure Statute

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Maine’s foreclosure statute allows a mortgagee who prevails in a foreclosure
action to charge reasonable attorney’s fees against the mortgaged estate. 14 M.R.S.
§ 6101. In light of the Judgment of Foreclosure and Sale granting the parties’ consent
motion for judgment, J., the Court agrees that TD Bank may charge reasonable
attorney’s fees on the mortgaged estate.

At the same time, TD Bank has not

contended that it is entitled to charge attorney’s fees against the mortgaged estate
for legal work made necessary by the partition action. Therefore, it is incumbent
upon the Court to make certain that TD Bank has properly separated out the
foreclosure work, which is chargeable against the mortgaged estate, from the
partition work, which is not.
2.

The First Circuit Analytic Approach

A second consideration is whether the proposed fees are reasonable. 14 M.R.S.
§ 6101 (“[T]he mortgagee . . . may charge a reasonable attorney’s fee”). The First
Circuit described the proper approach for determining whether the fees requested are
reasonable in Lipsett v. Blanco, 975 F.2d 934, 937 (1st. Cir. 1992). “Ordinarily, the
trial court’s starting point in fee-shifting cases is to calculate a lodestar; that is, to
determine the base amount of the fee to which the prevailing party is entitled by
multiplying the number of hours productively expended by counsel times a
reasonable hourly rate.” Id. at 937 (citing Hensley v. Eckerhart, 461 U.S. 424, 433
(1983)). A trial court should “compute the loadstar amount by ascertaining the time
counsel actually spent on the case ‘and then subtracting from that figure hours which
are duplicative, unproductive, excessive, or otherwise unnecessary.” Id. (quoting

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Grendel’s Den, Inc., v. Larkin, 749 F.2d 945, 950 (1st Cir. 1984)). The court “then
applies hourly rates to the constituent tasks, taking into account the ‘prevailing rates
in the community for comparably qualified attorneys.’” Id. (quoting United States v.
Metro. Dist. Comm’n, 847 F.2d 12, 19 (1st Cir. 1988)). “Once established, the lodestar
represents a presumptively reasonable fee, although it is subject to upward or
downward adjustment in certain circumstances.” Id.
The Defendants have not responded to TD Bank’s motion and put forth no
objection. Even in the absence of objection, “[i]t remains for the district court to
determine what fee is ‘reasonable.’” Hensley, 461 U.S. at 433 (1983); Foley v. City of
Lowell, Mass., 948 F.2d 10, 21 (1st Cir. 1991).
B.

Analysis
1.

Foreclosure and Partition Action

This case involves two distinct claims: (1) the foreclosure and sale of the
mortgaged property; and (2) the mortgaged property’s partition. TD Bank requested
that the claims be severed to allow it “to fully resolve its Foreclosure Claims against
the Woodman estate and provide certainty with respect to the amounts due to
Plaintiff pursuant to its mortgage prior to a sale of the entire Property via the
Partition Claims.” Pl.’s Mot. to Sever and Mot. to Stay Partition Claims Pending
Resolution of Foreclosure Claims at 2 (ECF No. 67); Order Granting Mot. to Sever
(ECF No. 68).
Plaintiff’s counsel concedes that attorney’s fees are only authorized with
respect to the foreclosure action. Pl.’s Mot. at 1; 14 M.R.S. § 6101. The Court

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reviewed the hours billed by Plaintiff’s counsel for legal services outside the flat fee
agreement and finds that TD Bank has not demonstrated a sufficient demarcation
between legal services relating to the foreclosure and those relating to the partition
action. For example, Attorney Messinger included an entry for 1.4 hours with the
description: “research: bringing partition action in Maine and foreclosing against a
partial interest.” Pl.’s Mot., Ex. 1 at 15 (ECF No. 78-1). Although the work performed
appears to relate in part to the foreclosure action, at least part of the entry reflects
research on bringing a partition action in Maine, an issue unrelated to the foreclosure
claim. Because the tasks were grouped under a single time entry, rather than being
properly divided between partition-related and foreclosure-related tasks, the Court
cannot award a fee based on these hours in the absence of an amended bill properly
delineating between tasks for each claim.
2.

Flat Fee Agreement

According to Plaintiff’s counsel, Duane Morris and TD Bank entered into a flat
fee agreement for the foreclosure. The agreement set forth a fixed legal fee of $3,100
“charged to Plaintiff for reviewing all loan documents and the title report, drafting
revising the Complaint in Foreclosure and Clerk’s Certificate, completing service of
process, negotiating and drafting the consent judgment of foreclosure and sale, [and]
filing of the report of sale and conveyance to the highest bidder.” Pl.’s Mot. at 1-2.
Plaintiff’s counsel states that additional fees outside of the flat fee agreement were
incurred by TD Bank: $2,090.50 for “researching and addressing a significant title

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issue impacting Plaintiff’s mortgage” and $422.50 “to monitor and coordinate the
discharge of unpaid tax liens.” Id. at 2.
Although some circuits prohibit the collection of attorney’s fees on flat fee
agreements, the First Circuit has not reached the issue, Domegan v. Ponte, 972 F.2d
401, 420 n.35 (1st Cir. 1992), cert. granted, judgment vacated, 507 U.S. 956, 113
(1993), and the Court is unaware of Maine caselaw addressing the issue. Other courts
have required the moving party to provide evidence of hourly billing, rates, and tasks
in support of a flat fee agreement so that the court can determine whether the flat fee
is reasonable for the services performed. Hill v. Allianz Life Ins. Co. of N. Am., No.
614-cv-950-ORL-41-KRS, 2018 WL 6983647, at *5 (M.D. Fla. Dec. 10, 2018); CIT
Bank, N.A. v. Ayers, No. 15-cv-7256-JFBSIL, 2017 WL 6816486, at *3 (E.D.N.Y. Dec.
5, 2017); Mack Fin. Servs. v. Poczatek, No. 10-cv-3799, 2011 WL 4628695, at *10
(E.D.N.Y. Aug. 30, 2011); Broad. Music, Inc. v. R Bar of Manhattan, Inc., 919 F. Supp.
656, 661 (S.D.N.Y. 1996).
The First Circuit and the Maine Supreme Judicial Court have not expressly
required a party filing a motion for attorney’s fees on a flat fee agreement to be
accompanied by evidence of hours billed and specific tasks performed. However, the
Court assumes both courts would take a similar approach to that of the Second
Circuit to ensure an award of only “reasonable attorney’s fees against the mortgaged
estate” as required by section 6101.
Here, the only evidence of the flat rate agreement offered by Plaintiff’s counsel
is found in the affidavit of Andrea Holbrook and an attached copy of an invoice listing

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a March 15, 2016 disbursement for “Professional Services Rose as Special
Administrator in the [Estate] of Bruce Woodman (Professional Services)” submitted
along with the motion for attorney’s fees. Pl.’s Mot., Attach. 1, Affidavit of Counsel
Andrea T. Holbrook in Support of Award of Legal Fees and Costs at 1-2, 11 (ECF No.
78). Attorney Holbrook states:
Plaintiff has incurred $3,100.00 in attorney’s fees for the legal services
performed to date pursuant to its flat fee agreement with Duane Morris.
Legal fees were charged to Plaintiff for reviewing all loan documents
and the title report, drafting revising and filing the Complaint in
Foreclosure and Clerk’s Certificate, completing service of process,
negotiating and drafting the consent agreement of foreclosure and sale,
filing of the report of sale and conveyance to the highest bidder.
Id. ¶ 3.
Attorney Holbrook further writes:
Additional legal fees outside of the flat fee agreement in the amount of
$2,090.50 were incurred by Plaintiff . . . for the researching and
addressing a significant title issue impacting Plaintiff’s mortgage, and
in the amount of $442.50 to monitor and coordinate the discharge of
unpaid tax liens.
Id. ¶ 4.
The evidence submitted does not comply with the Second Circuit requirements.
The Court, therefore, requires TD Bank provide additional evidence of the hours
billed and tasks performed under the flat fee agreement in an amended bill if it
wishes to pursue attorney’s fee on the flat fee it charged for the foreclosure action. If
TD Bank contends that either the Maine Supreme Judicial Court or the First Circuit
would not adopt the Second Circuit’s view of flat fee arrangements, TD Bank is free
to make that alternative argument.

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3.

Hourly Rate

To conduct the proper lodestar analysis for the portion of legal services outside
the scope of the flat fee agreement, the Court must determine the reasonable hourly
rate. Lipsett, 975 F.2d at 937 (citing Hensley, 461 U.S. at 433). Plaintiff’s counsel
states that TD Bank incurred the following fees outside the flat fee agreement:
$2,090.50 for “researching and addressing a significant title issue impacting
Plaintiff’s mortgage” and $422.50 “to monitor and coordinate the discharge of unpaid
tax liens.” Pl.’s Mot. at 2.
Attorney Holbrook’s affidavit confirms that TD Bank’s attorneys are billing at
the following hourly rates: (1) Brent Messinger, Partner--$450--; (2) Stephanie
Williams, Special Counsel--$395--; (3) Andrea Holbrook, Special Counsel--$395.
Plaintiff’s counsel is also billing paralegals at an hourly rate of $190. According to
Plaintiff’s counsel, these rates are its standard hourly rates (“$450 per hour for
partners, $395 per hour or less for associates and special counsel, and $190 per hour
for paralegal services.”). Id.
The Court last addressed the reasonableness of attorney’s hourly rates in 2018
in Coastal Counties Workforce., Inc. v. Lepage, No. 1:17-cv-00417-JAW, 2018 WL
6438743, at *4 (D. Me. Dec. 7, 2018). Using the rates it fixed in Maine People’s
Alliance as a guide and adjusting for “inflationary pressure on the hourly rates for
Portland, Maine legal services” as well as the increase in the consumer price index,
the Court determined the following hourly rates applied: $367.50 for exceptionally
experienced counsel; $315 for most highly experienced counsel; $262.50 for most

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reasonably experienced counsel; $183.75 for associates; and $99.75 for paralegals. Id.
(citing Maine People's, 2016 U.S. Dist. LEXIS 135301 at *19-22, 2016 WL 5676887.
Coastal Ctys. Workforce, Inc. v. LePage, No. 1:17-CV-00417-JAW, 2018 WL 6438743,
at *4 (D. Me. Dec. 7, 2018). As Coastal Counties and this case involve overlapping
periods for work performed, the Court applies the rates it calculated in Coastal
Counties to the Duane Morris bill here. Based on an extrapolation of the Duane
Morris charged rates to the level of attorney experience, the Court applies the
following rates to each lawyer: Brett Messinger: $367.50; Andrea Holbrook and
Stephanie Anderson: $262.50.

Similarly, the Court reduces the Duane Morris

paralegal hourly rate from $190 to $99.75.
III.

CONCLUSION
The Court defers ruling on TD Bank’s motion for attorney’s fees to allow TD

Bank to respond to this order. The Court allows TD Bank ten days from the date of
this order to file any additional information that the Court requires. If additional
time beyond the ten-day period is required, TD Bank may so move.
SO ORDERED.

s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 21th day of June, 2019

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