In the Matter of the Trusts established under the Pooling and Servicing Agreements

Filing 419

ORDER: Accordingly, the Court invites the parties to discuss proposing a schedule by which motions for attorneys' fees and expenses would follow resolution of any appeal from the judgment in this case. (Signed by Judge Katherine Polk Failla on 4/27/2020) (rro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
In the Matter of the Trusts Established under the
Pooling and Servicing Agreements relating to the
Wachovia Bank Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates,
Series 2007-C30; COBALT CMBS Commercial
Mortgage Trust 2007-C2 Commercial Mortgage
Pass-Through Certificates, Series 2007-C2;
Wachovia Bank Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates,
Series 2007-C31; ML-CFC Commercial Mortgage
Trust 2007-5 Commercial Mortgage Pass-Through
Certificates, Series 2007-5; and ML-CFC
Commercial Mortgage Trust 2007-6 Commercial
Mortgage Pass-Through Certificates, Series 2007-6

17 Civ. 1998 (KPF)
ORDER

KATHERINE POLK FAILLA, District Judge:
On March 19, 2020, the Court issued an Opinion and Order on the
parties’ cross-motions for summary judgment. (Dkt. #412). Specifically, the
Court granted CWC’s and the GSEs’ motions for summary judgment and
denied Appaloosa’s motion for partial summary judgment. (See id.). The Court
also resolved the parties’ competing motions to exclude. (See id.). On April 24,
2020, the parties submitted proposed final orders and judgments. (Dkt. #418).
The parties largely agree on the language, but diverge as to whether the final
order and judgment should include a provision preserving Appaloosa’s ability
to move for attorneys’ fees and costs. (See id. at 1). Both CWC and the GSEs
state that the issue of attorneys’ fees and costs should not be addressed in the
final order and judgment. (See id. at 2).
The Court has reviewed the parties’ submission and has concluded that
the final order and judgment need not include a provision preserving

Appaloosa’s right to seek attorneys’ fees and costs. See Fed. R. Civ. P. 58(e)
(“the entry of judgment may not be delayed, nor the time for appeal extended,
in order to tax costs or award fees”). As the parties are aware, the Court
retains residual jurisdiction over this case for the purpose of resolving an
attorneys’ fee motion while the appeal is pending. See Tancredi v. Metropolitan
Life Ins. Co., 378 F.3d 220, 225-26 (2d Cir. 2004). The Court does not
contemplate resolving any fee petition in a manner that would permit its
consideration with the underlying merits appeal, as permitted by Rule 58(e).
The question remains as to when it would be appropriate for Appaloosa,
or any party, to file a motion for attorneys’ fees and expenses. Under the law,
such a motion could be filed within two weeks after the filing of the judgment.
See Fed. R. Civ. P. 54(d)(2)(B)(i) (stating that motion for attorneys’ fees shall be
filed no later than 14 days after the entry of judgment). However, the Court
recognizes that this schedule can be modified by statute or court order. Fed.
R. Civ. P. 54(d)(2)(B). The Court observes that any motion for attorneys’ fees
and expenses would very likely be clarified by resolution of the underlying
merits appeal. Indeed, in at least one recent case before the Court, the parties
specifically agreed to defer the question of attorneys’ fees until after resolution
of an appeal. Accordingly, the Court invites the parties to discuss proposing a
schedule by which motions for attorneys’ fees and expenses would follow
resolution of any appeal from the judgment in this case.

SO ORDERED.
Dated:

April 27, 2020
New York, New York

__________________________________
KATHERINE POLK FAILLA
United States District Judge