Barrett et al v. Green Tree Servicing LLC

Filing 23

DECISION AND ENTRY DENYING PLAINTIFFS MOTION FOR ATTORNEYS FEES (DOC. 17 ) WITHOUT PREJUDICE TO REFILING WITHIN 30 DAYS FROM THE ENTRY OF THIS ORDER. Signed by Magistrate Judge Michael J. Newman on 5/4/16. (pb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
WILLIAM J. BARRETT, et al.,
Plaintiffs,

Case No. 3:14-cv-297

vs.
GREEN TREE SERVICING, LLC,

Magistrate Judge Michael J. Newman
(Consent Case)

Defendant.

DECISION AND ENTRY DENYING PLAINTIFFS’ MOTION FOR ATTORNEY’S FEES
(DOC. 17) WITHOUT PREJUDICE TO REFILING WITHIN 30 DAYS FROM THE ENTRY
OF THIS ORDER

This civil case is before the Court on Plaintiffs’ motion for attorney’s fees and costs. Doc.
17. Defendant filed a memorandum in opposition to Plaintiffs’ motion. Doc. 20. Thereafter,
Plaintiffs filed a reply. Doc. 22. The Court has carefully considered all of the foregoing documents,
and the motion for attorney’s fees and costs is now ripe.
I.
Plaintiffs William and Leah Barrett own a house located in Englewood, Ohio. See Barrett v.
Green Tree Servicing, LLC, No. 3:14-CV-297, 2014 WL 6809203, at *1 (S.D. Ohio Dec. 2, 2014).
The Englewood home was their primary residence until March of 2009, when they moved to Nevada
as the result of a job transfer. Id. Their mortgage loan on the Englewood house is financed through
GMAC Mortgage, LLC (“GMAC”), and serviced by Defendant Green Tree Servicing, LLC. Id. In
December 2013, GMAC filed a foreclosure action against Plaintiffs. Id. On February 28, 2014, at
the request of Plaintiffs’ attorney, GMAC provided a loss mitigation application from Defendant,
which Plaintiffs completed and submitted on May 19, 2014 to GMAC’s attorney. Id. Plaintiffs
allege that Defendant never acknowledged receipt of the application and never notified them whether

or not the application was complete. Id. On August 1, 2014, when Plaintiffs’ attorney called to
check on the status of the loss mitigation application, he was informed that Defendant never received
it. Id. As a result of Defendant’s alleged failure to process and consider their application, Plaintiffs
allege loss arising from additional fees, charges, and interest being applied to their mortgage loan
account. Id.
On September 5, 2015, Plaintiffs filed suit against Defendant alleging violations of the Real
Estate Settlement Procedures Act (“RESPA”) and its regulations, 12 C.F.R. § 1024.41(b)(2). Doc. 1.
They sought damages, attorney’s fees and costs. Id. Following the Court’s denial of Defendant’s
motion to dismiss (docs. 3, 10), the parties entered into a private settlement agreement whereby
Defendant would pay Plaintiffs damages in the amount of $1,000.00 and submit the issue of
attorney’s fees and costs to the Court for determination. See Doc. 17 at PageID 85. The parties
subsequently consented to the undersigned for final determination of the attorney’s fees issue. See
doc. 16.
II.
RESPA allows recovery of reasonable costs and attorney’s fees following “any successful
action” under the Act. 12 U.S.C. § 2605(f)(3). Courts have interpreted this language to permit
reasonable attorney’s fees to the “prevailing party.” See In re Nosek, No. 02-46025 JBR, 2006 WL
2700792, at *3 (Bankr. D. Mass. Sept. 19, 2006).

“‘Prevailing party’ is a legal term of art

designating ‘one who has been awarded some relief by the court[.]” Binta B. ex rel. S.A. v. Gordon,
710 F.3d 608, 620 (6th Cir. 2013) (citing Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of
Health and Human Res., 532 U.S. 598, 603 (2001)); see also Bridgeport Music, Inc. v. London
Music, U.K., 226 F. App’x 491, 493 (6th Cir. 2007) (stating that “only a party that has secured a
judgment on the merits or a court-ordered consent decree is ‘prevailing’ within the meaning of the
various federal fee-shifting statutes to use that term”); Andretti v. Borla Performance Indus., Inc.,
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426 F.3d 824, 835 (6th Cir. 2005) (stating that “for a party to be ‘prevailing there must be a
‘judicially sanctioned change in the legal relationship of the parties’”).
To determine reasonable attorney’s fees, “[i]t is well settled that the ‘lodestar’ approach is the
proper method[.]” Bldg. Serv. Local 47 Cleaning Contractors Pension Plan v. Grandview Raceway,
46 F.3d 1392, 1401 (6th Cir. 1995) (citations omitted). ‘In applying the lodestar approach, ‘[t]he
most useful starting point . . . is the number of hours reasonably expended on the litigation multiplied
by a reasonable hourly rate.’” Id. (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). A “strong
presumption” exists “that this lodestar figure represents a reasonable fee.” Id. (citations omitted).
Nevertheless, the Court may adjust the lodestar amount “upward or downward” in finally
determining the appropriate fee.

Id.

The Court can adjust the lodestar figure based upon

consideration of any of the following factors:
(1) the time and labor required; (2) the novelty and difficulty of the question;
(3) the skill requisite to perform the legal service properly; (4) the preclusion
of other employment by the attorney due to acceptance of the case; (5) the
customary fee; (6) whether the fee is fixed or contingent; (7) time limitations
imposed by the client or the circumstances; (8) the amount involved and the
results obtained; (9) the experience, reputation, and ability of the attorney;
(10) the “undesirability” of the case; (11) the nature and length of the
professional relationship with the client; and (12) awards in similar cases.
Geier v. Sundquist, 372 F.3d 784, 792 (6th Cir. 2004).
III.
According to Plaintiffs, when the parties settled their claims, they agreed to leave the “issue
of reasonable legal fees to be determined by the Court.” Doc. 17 at PageID 85. Plaintiffs now seek
attorney’s fees in the amount of $12,372.85. See id. at PageID 86. Defendant opposes the request
setting forth two arguments: (1) the amount of fees requested is unreasonable because Plaintiffs
delayed resolution of this case; and (2) the amount of fees requested far exceeds the result achieved
by Plaintiffs’ counsel. See doc. 20 at PageID 292-93. Notably, Defendant makes no argument as to:

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(1) whether Plaintiffs are, in fact, a prevailing party; or (2) the reasonableness of the hourly rate.1
Accordingly, for the purposes of this motion, Defendant may have waived such arguments.
With regard to the arguments actually advanced, the Court finds no merit to them. First, with
regard to the issue of Plaintiffs’ delay, the Court’s review of the timesheets submitted by Plaintiffs
reveal the tasks typically performed in all litigation -- such as pre-litigation research, drafting of the
pleadings, participation in Court conferences, preparation of discovery requests, and drafting
memoranda for the Court. See doc. 17-3. In fact, a substantial amount of the time billed by
Plaintiffs’ attorneys was for preparing a memorandum in opposition to Defendant’s motion to
dismiss. See id. at PageID 105-06. Further, the Court’s review of the record and the timesheets
submitted (doc. 17-3) reveals no “bad faith tactics, or . . . any indefensible judgments about how to
proceed in their case, which unduly multiplied proceedings and their cost.” See Wells v. Corp.
Accounts Receivable, 683 F. Supp. 2d 600, 602 (W.D. Mich. 2010).
Second, with regard to the result achieved, the fact that Plaintiffs recovered only $1,000 via
settlement does not, in and of itself, merit a reduction in the amount of fees to be awarded. Courts
generally recognize that:
It would not be surprising, in a statutory fee-shifting case, for an attorneys’
fee award to exceed the plaintiff’s monetary recovery; the very purpose of
statutory fee-shifting provisions is to advance the public interest served by the
statutes in question, by providing incentives to attorneys to take on cases that
otherwise would not generate income. In other words, in a statutory feeshifting case, “if a plaintiff could have recovered only a one-thousand dollar
verdict by virtue of one-hundred-thousand dollars worth of legal work, full

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The Court does have concerns about the reasonableness of the hourly rates advanced by
Plaintiffs’ attorneys. The timesheet submitted in conjunction with the motion for attorneys’ fees shows
that Attorney Doucet billed at hourly rates of $295 and $365 per hour. See doc. 17-3 at PageID 105-07.
However, the fee agreement presented to the Court represents that Mr. Doucet’s agreed hourly rate with
Plaintiffs was $195. See doc. 17-2 at PageID 96. Further, if Mr. Doucet’s hourly rate was $195, the
Court also has concerns about the reasonableness of Mr. Snyder’s $225 hourly rate in light of his
experience in comparison to that of Mr. Doucet. See doc. 17-4 at PageID 112-14. Based on the
foregoing, the undersigned is inclined to reduce the hourly rates of both Mr. Doucet and Mr. Snyder to
$195 per hour, which would reduce the lodestar amount to $10,680.35.
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compensation requires that those fees be shifted, regardless of their
magnitude relative to the verdict.”
Roger E. Herst Revocable Trust v. Blinds to Go (U.S.) Inc., No. CIV.A. ELH-10-3226, 2011 WL
6444980, at *10 (D. Md. Dec. 20, 2011) (citation omitted). Defendant points to no other reason why
the lodestar amount should be reduced, and the Court finds none.
IV.
While the Court would be inclined to award Plaintiffs attorney’s fees in the lodestar amount
discussed supra if they are deemed prevailing parties, the issue of whether Plaintiffs are, in fact,
“prevailing parties” under the law has not been detailed by the parties in their briefing. See Harris v.
Jacobs Marsh, LLC, No. 12-CV-356, 2016 WL 1584018, at *1-4 (W.D.N.Y. Mar. 21, 2016).
Accordingly, at this time, the Court DENIES Plaintiffs’ motion for attorney’s fees (doc. 17)
WITHOUT PREJUDICE to refiling. Should the parties not resolve the attorney’s fees issue
amongst themselves, and should Plaintiffs resubmit a motion for attorney’s fees -- which the
undersigned hereby GRANTS Plaintiffs leave to do within 30 days of this Order -- the parties are
ORDERED to brief the issue as to whether, in light of the settlement agreement, Plaintiffs are
“prevailing parties” entitled to an award of attorney’s fees. Should the parties resolve the issue of
attorney’s fees amongst themselves, they shall advise the Court immediately.
IT IS SO ORDERED.

Date:

May 4, 2016

s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge

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