Deutsche Bank National Trust Company, Trustee v. Pike

Filing 87

ORDER granting in part and denying in part 85 Motion for Attorney Fees. Motion is granted as to an award of costs in the amount of $89.66 and is denied as to an award of attorney's fees. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Deutsche Bank National
Trust Company, Trustee
v.

Civil No. 15-cv-304-JD
Opinion No. 2017 DNH 180

Jennifer L. Pike
O R D E R
Jennifer Pike moves for an award of attorney’s fees and
costs under Federal Rule of Civil Procedure 54(d).
total of $89.66 in costs and $24,988.75 in fees.

Pike seeks a

Deutsche Bank

objects to Pike’s request for attorney’s fees.
Deutsche Bank filed a notice of appeal on August 10, 2017,
after judgment was entered but before Pike filed her motion for
fees and costs.

Generally, “the entry of a notice of appeal

divests the district court of jurisdiction to adjudicate any
matters related to [the] appeal.”

United States v. Martin, 520

F.3d 87, 97 (1st Cir. 2008) (internal quotation marks omitted).
The issue of costs and attorney’s fees, however, is not related
to the appeal and may be decided despite the notice of appeal.
United States v. Hurley, 63 F.3d 1, 23 (1st Cir. 1995).
Background
William and Jennifer Pike were married in 2000.

William

bought property at 34 Dogwood Lane, New London, New Hampshire,

in 2001.

In 2003, William obtained a loan from New Century

Mortgage Corporation that was secured by a mortgage on the New
London property.

Although Jennifer’s signature appears on the

mortgage document, she asserts that she did not know about the
loan or the mortgage and did not sign the mortgage.
In 2004, William obtained a second mortgage loan, secured
by the New London property, from First Franklin Financial
Corporation.

Jennifer did not sign the note or the mortgage.

The First Franklin mortgage was transferred by assignment to
Deutsche Bank on May 26, 2009.
The Pikes were divorced on July 3, 2013.

Under the terms

of the divorce decree, Jennifer was awarded the property with
certain other conditions.

William transferred the property to

Jennifer by deed on July 26, 2013.
at the property.

Jennifer continues to live

As has been decided in this case, Deutsche

Bank’s mortgage is subject to Jennifer’s homestead interest in
the property.
Discussion
Pike seeks an award of costs and attorney’s fees.

In

support of her request for attorney’s fees, Pike relies on RSA
361-C:2.

Deutsche Bank does not object to Pike’s request for

costs but contends that neither the attorney’s fees provision in
the mortgage nor RSA 361-C:2 apply in this case.
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A.

Costs
Rule 54(d)(1) provides that unless federal law or a court

order states otherwise, a prevailing party is entitled to her
costs other than attorney’s fees.

Deutsche Bank does not

dispute that Pike is entitled to $89.66 in costs as she
requests.
B.

Attorney’s Fees
Pike also asserts that she is entitled to an award of

attorney’s fees under RSA 361-C:2.

RSA 361-C:2 provides for an

award of attorney’s fees in an action, suit, or proceeding to a
“buyer, borrower or debtor” who prevails in a suit against a
“seller, lender or creditor” if the “retail installment contract
or evidence of indebtedness” requires the “buyer, borrower or
debtor” to pay the attorney’s fees of the “seller, lender or
creditor” under the same circumstances.

In other words, RSA

361-C:2 makes a mortgage provision in favor of the mortgagee,
the bank or lender, reciprocal for the mortgagor, the borrower
or debtor.

Therefore, application of the statute is limited to

cases in which a buyer, borrower, or debtor prevails against a
seller, lender, or creditor in a suit brought under a retail
installment contract, such as a mortgage, or evidence of
indebtedness, such as a loan note.
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Pike contends that a provision in the First Franklin
mortgage pertaining to attorney’s fees, paragraph 25, triggers
the application of RSA 361-C:2 to award her fees.

Paragraph 25

provides as follows:
25. Attorney’ Fees. Pursuant to New Hampshire Revised
Statutes Annotated § 361-C:2, in the event that Borrower
shall prevail in (a) any action, suit or proceeding,
brought by Lender, or (b) an action brought by Borrower,
reasonable attorneys’ fees shall be awarded to Borrower.
Further, if Borrower shall successfully assert a partial
defense or set-off, recoupment or counterclaim to an action
brought by Lender, a court may withhold from Lender the
entire amount or such portion of its attorneys’ fees as the
court shall consider equitable.
First Franklin mortgage, doc. 1-3.

Pike asserts that she is a

borrower within the meaning of paragraph 25 and RSA 361-C:2 and
that Deutsche Bank is the lender.
Deutsche Bank objects, arguing that because Pike is not a
party to the mortgage, she is not the borrower for purposes of
the mortgage or RSA 361-C:2.

Deutsche Bank also contends that

paragraph 25 does not apply here because the parties sought a
determination of Pike’s homestead interest in the property but
did not bring claims under the mortgage or the note.
Paragraph 25 in the mortgage and RSA 361-C:2 provide for an
award of fees to the borrower under the note and mortgage.

Pike

did not sign the note to First Franklin or the mortgage securing
the note.

As a result, Pike is not the borrower.

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Pike argues that she is a debtor for purposes of
RSA 361-C:2 because she owns the property and Deutsche Bank has
tried to enforce the mortgage against her.

She relies on the

definition of debtor used for purposes of secured transactions
in New Hampshire’s Uniform Commercial Code, RSA 382-A:9102(a)(28)(A).
Even if that definition would apply to RSA 361-C:2,
contrary to Pike’s representation, Deutsche Bank did not bring
suit in this case for breach of the note or the mortgage.

Pike

does not dispute that she did not sign the mortgage or the note.
Therefore, Pike is not entitled to an award of fees under
paragraph 25 in the mortgage or under RSA 361-C:2.
Conclusion
For the foregoing reasons, the defendant’s motion for costs
and fees (document no. 85) is granted as to an award of costs in
the amount of $89.66 and is denied as to an award of attorney’s
fees.
SO ORDERED.

__________________________
United States District Judge
Joseph DiClerico, Jr.
September 6, 2017
cc: Stephen T. Martin, Esq.
Kevin P. Polansky, Esq.
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