U.S. Bank Trust, N.A. v. Dingman et al
Filing
21
OPINION AND ORDER re: 15 MOTION for Summary Judgment and Judgment of foreclosure and sale, filed by U.S. Bank Trust, N.A. Plaintiff's motion for summary judgment is GRANTED in part and DENIED in part. Plaintiff may renew the mot ion as to damages due under the Note and costs associated with this litigation (except for attorneys fees) as set forth in note 12 above. The Clerk of Court is respectfully directed to terminate the pending motion, (Doc. 15). SO ORDERED., (Motions due by 12/6/2016., Responses due by 12/20/2016) (Signed by Judge Cathy Seibel on 11/22/16) (yv)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------------------------x
U.S. BANK TRUST, N.A.,
as Trustee for LSF9 Master Participation Trust,
Plaintiff,
OPINION AND ORDER
- against -
No. 16-CV-1384 (CS)
JANICE DINGMAN and PETER DINGMAN,
Defendants.
----------------------------------------------------------------------x
Appearances:
Stephen Vargas
Gross Polowy, LLC
Westbury, New York
Counsel for Plaintiff
Janice Dingman
Peter Dingman
Poughkeepsie, New York
Defendants Pro Se
Seibel, J.
Before the Court is Plaintiff’s Motion for Summary Judgment seeking a Judgment of
Foreclosure and Sale and appointment of a referee to effectuate the sale. (Doc. 15.) For the
following reasons, Plaintiff’s motion is GRANTED in part and DENIED in part.
I.
BACKGROUND
The following facts, which are based on Plaintiff’s Local Rule 56.1 statement,1
supporting materials and the record in this case, are undisputed except where noted.
1
Plaintiff’s submission did not comply with Local Rule 56.1, which requires parties to cite to admissible evidence
following each statement of material fact. Plaintiff provided no such evidence in support of the statements asserted.
1
This is an action to foreclose a mortgage loan. Plaintiff U.S. Bank Trust, N.A. is a
national banking association with a principal place of business in Wilmington, Delaware. (P’s
56.1 Stmt. ¶ 1.)2 Defendants Janice and Peter Dingman are individuals residing in Dutchess
County, New York, and are the owners of property located at 20 Greenfield Street,
Poughkeepsie, New York (the “Property”). (Id. ¶¶ 2-4.)
On May 25, 2005, Defendants obtained a mortgage loan from Beneficial Homeowner
Service Corporation in the original principal amount of $310,896.19, which was memorialized in
a note dated May 25, 2005 (the “Note”), and secured by a mortgage on the Property, also dated
May 25, 2005 (the “Mortgage”). (Scott Aff. ¶¶ 3, 5.)3
Defendants defaulted on the mortgage loan by failing to make the payment due July 1,
2015, and all payments due thereafter. (Id. ¶ 6.) On August 18, 2015, Caliber Home Loans, Inc.
(“Caliber”), the servicer of Defendants’ loan, mailed a 90-day notice pursuant to New York Real
Property Actions and Proceedings Law (“RPAPL”) § 1304 to each of the Defendants at the
Property by certified and first-class mail. (Id. ¶ 7; see Vargas Affirm. Ex. E.)4
On October 20, 2015, Caliber mailed a notice of default to each of the Defendants by first
class mail. (See Vargas Affirm. Ex. D.) The notice instructed Defendants that they had a right to
cure the default, but that Caliber could require them to pay immediately the remaining unpaid
amount of the loan if they did not correct the default by November 24, 2015. (Id.)
Plaintiff’s counsel regularly appears in this Court and should know his obligations. Any future motions that are
similarly deficient will be summarily denied.
2
“P’s 56.1 Stmt.” refers to Plaintiff’s Statement of Material Facts Pursuant to Local Rule 56.1. (Doc. 18.)
3
“Scott Aff.” refers to Affidavit of Jennifer Scott. (Doc. 16 Ex. H.)
4
“Vargas Affirm.” refers to Affirmation of Regularity by Stephen Vargas. (Doc. 16.)
2
On January 4, 2016, after a series of transfers, Plaintiff became the owner of the
mortgage loan.5 (Id. Ex. B, at 27.) Despite the notices of default and opportunities to cure,
Defendants failed to cure their default on the mortgage loan. (Scott Aff. ¶ 6.) Plaintiff elected to
call due the entire unpaid balance, together with interest and disbursements, allowable under the
terms of the Note and Mortgage. (Id. ¶ 9.) The loan remains in default, (id. ¶ 12), with an
unpaid principal balance of $267,415.74, plus interest and fees, owing to Plaintiff, (id. ¶ 10).
Plaintiff filed the Complaint against Defendants on February 23, 2016, (Doc. 1), and
Defendants answered, (Doc. 7). This motion followed.
II.
LEGAL STANDARD
Summary judgment is appropriate when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). “[T]he dispute about a material fact is ‘genuine’ . . . if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A fact is “material” if it “might affect the outcome of the suit
under the governing law . . . . Factual disputes that are irrelevant or unnecessary will not be
counted.” Id. On a motion for summary judgment, “[t]he evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255. The movant
bears the initial burden of demonstrating the absence of a genuine issue of material fact, and, if
satisfied, the burden then shifts to the non-movant to present evidence sufficient to satisfy every
element of the claim. Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008) (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)). “The mere existence of a scintilla of evidence in
5
Beneficial Homeowner Service Corporation first transferred the Mortgage to LSF9 Master Participation Trust by
assignment dated March 10, 2015, which was recorded on March 26, 2015. (Vargas Affirm. Ex. B, at 26.) LSF9
Master Participation Trust then assigned the Mortgage to Plaintiff on January 4, 2016. (Id. at 27.)
3
support of the [non-movant’s] position will be insufficient; there must be evidence on which the
jury could reasonably find for the [non-movant].” Anderson, 477 U.S. at 252. Moreover, the
non-movant “must do more than simply show that there is some metaphysical doubt as to the
material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986),
and he “may not rely on conclusory allegations or unsubstantiated speculation,” Fujitsu Ltd. v.
Fed. Express Corp., 247 F.3d 423, 428 (2d Cir. 2001) (internal quotation marks omitted).
“A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by . . . citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations (including
those made for purposes of the motion only), admissions, interrogatory answers, or other
materials . . . .” Fed. R. Civ. P. 56(c)(1)(A). Where an affidavit is used to support or oppose the
motion, it “must be made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant . . . is competent to testify on the matters stated.” Fed. R.
Civ. P. 56(c)(4); see Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d
Cir. 2008). In the event that “a party fails . . . to properly address another party’s assertion of
fact as required by Rule 56(c), the court may,” among other things, “consider the fact undisputed
for purposes of the motion” or “grant summary judgment if the motion and supporting materials
– including the facts considered undisputed – show that the movant is entitled to it.” Fed. R. Civ.
P. 56(e)(2), (3).
III.
DISCUSSION
A. Motion for Summary Judgment
“‘It is settled that in moving for summary judgment in an action to foreclose a mortgage,
a plaintiff establishes its case as a matter of law through the production of the mortgage, the
4
unpaid note, and evidence of default.’” Capital One Nat’l Ass’n v. 48-52 Franklin, LLC, No. 12CV-3366, 2014 WL 1386609, at *4 (S.D.N.Y. Apr. 8, 2014) (quoting Village Bank v. Wild Oaks
Holding, Inc., 601 N.Y.S.2d 940, 941 (N.Y. App. Div. 1993)).6 “Once the plaintiff has
established its prima facie case by presenting the [n]ote, [m]ortgage, and proof of default, the
[m]ortgagee has a presumptive right to foreclose, which can only be overcome by an affirmative
showing” by the mortgagor that the mortgagee has engaged in “fraud, duress, oppressive or
unconscionable actions, or bad faith.” Regency Sav. Bank, F.S.B. v. Merritt Park Lands Assocs.,
139 F. Supp. 2d 462, 465-66 (S.D.N.Y. 2001) (citing First Nat’l Bank of Highland v. J. & J.
Milano, Inc., 160 A.D.2d 670, 671 (N.Y. App. Div. 1990)). “The lender is entitled to summary
judgment if it establishes by documentary evidence the facts underlying its cause of action and
the absence of a triable fact.” U.S. Bank, N.A. v. Squadron VCD, LLC, 504 F. App’x 30, 32 (2d
Cir. 2012) (summary order).
Plaintiff has produced the Note, (Vargas Affirm. Ex. B, at 4-6), the Mortgage, (id. at 1113), and notices of default, (id. Exs. D, E), and Defendants have not disputed Plaintiff’s showing
(by affidavit of its representative, id. Ex. H), that the mortgage loan is in default. Plaintiff has
thus established a prima facie case. Defendants have not argued that Plaintiff engaged in fraud,
duress, oppression, unconscionable conduct, or bad faith. Indeed, they have not presented any
arguments in opposition. Nevertheless, the Court must scrutinize even an unopposed summary
judgment motion to satisfy itself that no material issue of fact remains for trial. Vt. Teddy Bear
Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004). Further, “special solicitude” is
owed to pro se litigants. Shibeshi v. City of N.Y., 475 F. App’x 807, 808 (2d Cir. 2012)
(summary order) (internal quotation marks omitted).
6
The Court will send Defendants copies of all unpublished decisions cited in this Opinion and Order.
5
Accordingly, I have examined the record to determine if any material issues of fact
remain for trial, see Buckley v. Cty. of Suffolk, No. 10-CV-1110, 2013 WL 122972, at *1
(E.D.N.Y. Jan. 9, 2013) (citing Vt. Teddy Bear Co., 373 F.3d at 244), and have found none. The
record reflects that Plaintiff provided Defendants with sufficient notice of default and
opportunities to cure, after which it exercised its right to call due the outstanding unpaid balance.
Defendants did not allege any affirmative defenses in their answer, (Doc. 7), and the record does
not otherwise reveal any triable issues of fact with respect to any such defenses, so summary
judgment is appropriate. See E. Sav. Bank, FSB v. Ferro, No. 13-CV-5882, 2015 WL 778345, at
*6 (E.D.N.Y. Feb. 24, 2015) (lender entitled to summary judgment in foreclosure action where
pro se defendant did not oppose, provide evidence in support of affirmative defenses, or
otherwise raise triable issue of fact); RTC Mortg. Trust 1995-S/N1 v. Polmar Realty, Inc., No.
91-CV-6685, 1996 WL 689281, at *4 (S.D.N.Y. Nov. 27, 1996) (granting summary judgment in
foreclosure action where defendants offered neither opposition nor evidence to defeat motion,
and therefore any purported affirmative defenses, “without any additional supporting evidence,
[were] legally insufficient to preclude the imposition of summary judgment”).
Accordingly, summary judgment as to Plaintiff’s right to foreclose is granted.
B. Motion for a Judgment of Foreclosure and Sale
Plaintiff further moves for a judgment of foreclosure and sale, and requests that the Court
appoint a referee to oversee a sale of the property and disburse the funds from that sale. (P’s
Mem. 17; see Vargas Damages Aff.)7 Plaintiff proposes Christopher B. Meagher, Esq., (Vargas
Damages Aff. Ex. L, at 2), whose appointment Defendants have not opposed.
7
“P’s Mem.” refers to Memorandum of Law in Support of Plaintiff’s Motion for Summary Judgment and Default
Judgment. (Doc. 17.) “Vargas Damages Aff.” refers to Statement of Damages. (Vargas Affirm. Ex. K.)
6
1. Appointment of Referee
RPAPL section 1321 states in relevant part: “If the defendant fails to answer within the
time allowed or the right of the plaintiff is admitted by the answer, upon motion of the plaintiff,
the court shall ascertain and determine the amount due, or direct a referee to compute the amount
due to the plaintiff . . . .” N.Y. Real Prop. Acts. Law § 1321. Although section 1321
contemplates a situation where the defendant fails to answer or the right of the plaintiff is
admitted, because the Court granted summary judgment in favor of Plaintiff based on an
undisputed showing of default on the mortgage, the procedural posture of the case now is as if
the right of Plaintiff has been admitted. See Greystone Bank v. Skyline Woods Realty, LLC, 817
F. Supp. 2d 57, 65 (N.D.N.Y. 2011) (despite answering complaint and opposing summary
judgment, defendants had “not produced sufficient evidence to establish a genuine issue of
material fact for trial relating to the Mortgage foreclosure,” and pursuant to Federal Rule of Civil
Procedure 53(a) and RPAPL section 1321, court “appoint[ed] a Referee to ascertain and compute
the amount due to plaintiff under the Note and Mortgage”).
RPAPL section 1351(1) states that a Judgment of Sale “shall direct that the mortgaged
premises . . . be sold by or under the direction of the sheriff of the county, or a referee.” N.Y.
Real Prop. Acts. Law § 1351(1); see Charles F. Curry Co. v. Yodah Grp., Inc., 617 N.Y.S.2d
264, 265 (N.Y. Sup. Ct. 1994) (“[RPAPL] § 1351(1) requires the judgment of sale to direct the
mortgaged premises be sold by or under the direction of the sheriff of the county or a referee.”).
RPAPL section 1611 also states: “When the final order authorizes a mortgage, lease or sale
upon the application of a person who is not trustee, the court in such final order must appoint a
referee to execute the authorized transaction.” Further, “[c]ourts in this Circuit have permitted
7
such appointments where the plaintiff ‘established a prima facie case by presenting a note, a
mortgage, and proof of default.’” Cit Bank v. Dambra, No. 14-CV-3951, 2015 WL 7422348, at
*7 (quoting E. Sav. Bank, FSB v. Evancie, No. 13-CV-878, 2014 WL 1515643, at *4 (E.D.N.Y.
Apr. 18, 2014)), report and recommendation adopted, 2015 WL 7430006 (E.D.N.Y. Nov. 20,
2015). As discussed above, Plaintiff has established a prima facie case by presenting the Note,
Mortgage and proof of default. The appointment of a referee is therefore appropriate to oversee
the sale of the property and ensure the proceeds from the sale are distributed in accordance with
the Court’s computation discussed below.
2. Computing Costs Owed
Pursuant to section 1321 of the RPAPL, the trial court has the authority to compute the
amount owed or appoint a referee to do the same. Defendants have not challenged the same.8
a. Damages Due on the Note
Plaintiff states that the amount due on the Note is $353,071.87, which includes the
remaining principal balance, interest (calculated at 8.130%), property inspection and
preservation fees, and escrow balance. (Vargas Damages Aff. 1.) “Any determination of
damages in an action for foreclosure and sale should be determined under the terms of the Notes
and Mortgages, the governing instruments . . . .” E. Sav. Bank, FSB v. Rabito, No. 11-CV-2501,
2014 WL 4804872, at *1 (E.D.N.Y. Sept. 10, 2014) (internal quotation marks omitted), report
and recommendation adopted, 2014 WL 4804901 (E.D.N.Y. Sept. 26, 2014). A referee, and
8
Although an evidentiary hearing to compute damages may be held and may be helpful to determine the amount
owed, it is not necessary for a court to conduct such a hearing in order to compute damages when there is an
otherwise adequate basis for the award, see Onewest Bank, N.A. v. Cole, No. 14-CV-3078, 2015 WL 4429014, at *3
(E.D.N.Y. July 17, 2015) (“An evidentiary hearing is not required so long as there is a basis for the damages
awarded. Detailed affidavits and other documentary evidence can provide this basis.”) (citation omitted); Adelman
v. Fremd, 651 N.Y.S.2d 604, 605 (App. Div. 1996) (“Because the appellant was not otherwise prejudiced by his
inability to submit evidence directly to the Referee, a hearing on the issue of the principal sum due is not
necessary.”).
8
thus similarly a court, may consider “both documentary and oral evidence in computing the
amount due on the mortgage.” Isaacson v. Karpe, 445 N.Y.S.2d 37, 38 (App. Div. 1981).
Plaintiff has presented the Note and Mortgage, as well as evidence of default, which are
sufficient to make a prima facie case for foreclosure, and sufficient evidence to show the
principal and interest due under the Note. See Evancie, 2014 WL 1515643, at *4. The Note sets
forth the initial principal as $310,896.19 and the yearly interest rate at 8.13%.9 (Vargas
Damages Aff. 1.) Plaintiff claims to be owed $267,415.74 in outstanding principal as of June 17,
2016, (id.), because Defendants failed to make a mortgage payment due on July 1, 2015 and all
payments due thereafter, (Scott Aff. ¶ 6). Defendants have not disputed that this is the amount of
principal due under the Note. Plaintiff is thus entitled to the outstanding $267,415.74 principal
plus interest calculated at 8.13% per annum from June 19, 2015 to June 17, 2016 ($21,653.99),
totaling $289,069.73. Plaintiff is also owed $59.56 per diem for interest accruing after June 17,
2016 and until the entry of judgment.10
Plaintiff also requests other amounts allowed by the Note and Mortgage, such as “BPO,”
late charges, and escrow payments, and lists the amounts it claims it is owed.11 (Vargas
Damages Aff. 1.) Plaintiff, however, has not submitted any records or underlying documents.
With respect to these claims, the Court is not “satisfied that the documents submitted . . .
9
Although the original Note, (Vargas Affirm. Ex. B), specified an annual interest rate of 8.380%, Plaintiff seeks
interest at the rate of 8.130%, (Vargas Damages Aff. 1) – perhaps as a result of the “Adjustment to Contract Rate”
provision included in the Note’s additional contract terms, (Vargas Affirm. Ex. B, at 5) – so the Court will use that
rate.
10
The Court derived the amount of per diem interest by calculating the amount of interest accrued under the Note in
one year – $21,740.90, or 8.13% of $267,415.74 – and dividing that figure by 365 (i.e., the number of days in a
year), producing a result of $59.56 in interest accrued each day.
11
The Mortgage entitles lender to repayment of “reasonable attorney’s fees and other expenses incurred in
connection with foreclosure as permitted by applicable law.” (Vargas Affirm. Ex. B, at 11.) Further, the Note
instructs that “in the event of default under the Mortgage. . . . any judgment in our favor may include our reasonable
attorney’s fee and court costs as determined by the court.” (Id. at 6.)
9
sufficiently demonstrate, by competent proof,” that the amounts claimed are owed to Plaintiff.
Onewest Bank, N.A. v. Shepherd, No. 13-CV-1104, 2015 WL 1957284, at *1 (N.D.N.Y. Apr. 29,
2015), and Plaintiff’s affidavits do not provide an “adequate basis” that is required for the
amounts requested by Plaintiff, Cole, 2015 WL 4429014, at *4; cf. Isaacson, 445 N.Y.S.2d at 38
(evidence, including “several receipts for payment of real property taxes by plaintiff” and
testimony under oath sufficient for court to determine amount owed). If Plaintiff wishes to
recover damages due on the Note, other than the outstanding principal and interest payments, it
must renew its motion and produce the underlying business records showing the amounts
claimed.12
b. Costs
Plaintiff also requests $1,132.06 in additional costs associated with the foreclosure,
including Plaintiff’s federal court filing fee, Notice of Pendency filing fee, and expenses
associated with searches under N.Y. C.P.L.R. § 8301(a)(10) and the service of copies of the
Summons and Complaint. (Vargas Damages Aff. 2.) Although “[r]easonable and identifiable
out-of-pocket disbursements ordinarily charged to clients are recoverable,” Cole, 2015 WL
4429014, at *7, and although such disbursements are provided for in the Note, (Vargas Affirm.
Ex. B, at 5), the Court has (with the two exceptions noted below) no way of verifying these
expenditures without documentation, cf. Cole, 2015 WL 4429014, at *7 (award of costs proper
where “[p]laintiff [had] submitted adequate documentation in support of . . . payment”). The
$400 requested for the federal court filing fee is warranted and documented on the docket for this
12
Any renewed motion must be filed by December 6, 2016. Defendants may respond by December 20, 2016. If
Plaintiff prefers not to renew the motion and would rather have the Court enter judgment in the amounts approved in
this Order and Opinion, it may so notify the Court.
10
case, as is $35 for the clerk’s fee for filing a Notice of Pendency.13 Without further
documentation, however, the Court cannot determine the reasonableness of the other costs
requested. See Dambra, 2015 WL 7422348, at *9 (declining to award certain fees and costs
where plaintiff failed to present proper documentation). Plaintiff is thus entitled to only $435 in
costs at this time. If Plaintiff wishes to collect the remaining amounts, it must produce the
underlying records that support its claims in a renewed motion. (See note 12 above.)14
c. Attorney’s Fees
Plaintiff requests $2,900 in attorney’s fees incurred in connection with the foreclosure of
the property, (Vargas Damages Aff. 2), for which the mortgage terms provide in the event of a
lawsuit for foreclosure and sale, (Vargas Affirm Ex. B, at 11.) “[C]ontemporaneous time records
are a prerequisite for attorney’s fees in this Circuit.” N.Y. State Ass’n for Retarded Children, Inc.
v. Carey, 711 F.2d 1136, 1147 (2d Cir. 1983). Even where the attorney charges the client a flat
fee, courts have permitted “such awards where the attorney also presented contemporaneous time
records” but have denied these awards “where the attorney failed to maintain and produce
contemporaneous time records.” Dambra, 2015 WL 7422348, at *8 (collecting cases); see Cole,
2015 WL 4429014, at *7 (denying attorney’s fees where no contemporaneous time reports
produced).
13
Plaintiff in its affidavit states that the Notice of Pendency fee is $35.50, (Vargas Damages Aff. 2), but the
Westchester County Clerk’s website lists the fee for “Lis Pendens” as $35.00, see Legal Fees, Westchester County
Clerk, http://www.westchesterclerk.com/index.php?option=com_content&view=article&id=12&Itemid=6 (last
visited November 21, 2016).
14
I previously denied Plaintiff’s request for costs in another case for similarly failing to provide documentation that
would allow me to verify counsel’s expenditures. (See OneWest Bank, N.A. v. Rubio, No. 14-CV-3800, Doc. 91.)
Counsel has experienced the same result in other cases within this district. See, e.g., Onewest Bank, N.A. v. Louis,
No. 15-CV-597, 2016 WL 3552143, at *10 (S.D.N.Y. June 22, 2016) (denying plaintiff’s request for costs because it
did “not suppl[y] any receipts or invoices”), report and recommendation adopted, 2016 WL 4059214 (S.D.N.Y. July
28, 2016). Counsel should heed the well-established principle requiring documentation if he cares to recoup the
costs associated with these litigations.
11
Here Plaintiff’s counsel admittedly did not maintain “individual time sheets” because the
firm charges a flat fee for foreclosure work. (Att’y Fee Affirm. ¶ 4.)15 Although the $2,900
requested by Plaintiff’s counsel seems reasonable for the amount of work involved in connection
with this foreclosure, the lack of contemporaneous time sheets precludes any such award. See
Carey, 711 F.2d at 1147; Dambra, 2015 WL 7422348, at *8.16 Although counsel apparently
attempted to retroactively create time records by breaking the total requested award into tasks of
attorneys and paralegals, (Att’y Fee Affirm. ¶ 6), this is insufficient under the Second Circuit’s
mandate set forth in Carey, see Carey, 711 F.2d at 1148 (“[Contemporaneous time] records
should specify, for each attorney, the date, the hours expended, and the nature of the work
done.”). Accordingly, Plaintiff’s request for attorney’s fees is denied.
IV.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for summary judgment is GRANTED in
part and DENIED in part. Plaintiff may renew the motion as to damages due under the Note and
costs associated with this litigation (except for attorney’s fees) as set forth in note 12 above. The
Clerk of Court is respectfully directed to terminate the pending motion, (Doc. 15).
SO ORDERED.
Dated: November 22, 2016
White Plains, New York
15
______________________________
CATHY SEIBEL, U.S.D.J.
“Att’y Fee Affirm.” refers to Attorney Fee Affirmation. (Vargas Affirm. Ex. J.)
16
The law firm that requested fees in Dambra is the same firm representing Plaintiff here. I have previously denied
fees to Plaintiff’s firm on the basis of lack of contemporaneous records. (See OneWest Bank, N.A. v. Rubio, No. 14CV-3800, Doc. 91.) Counsel should realize that he must maintain contemporaneous time sheets to be awarded
attorney’s fees in this Circuit, and should refrain from seeking fees unless he either has maintained contemporaneous
records or has a legal basis to argue that the requirement for such records should not apply.
12
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