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HSBC Bank USA N.A. v. Crum

United States District Court, N.D. Texas, Dallas Division

May 31, 2017

HSBC BANK USA, N.A., AS TRUSTEE FOR MERRILL LYNCH MORTGAGE INVESTORS TRUST, MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2005-WMCI, Plaintiff,
v.
KENNETH E. CRUM, Defendant.

          MEMORANDUM OPINION AND ORDER

          JANE J. BOYLE UNITED STATES DISTRICT JUDGE

         Before the Court is Plaintiff's Motion for Award of Attorney's Fees. Doc. 65. For the following reasons, the Court GRANTS in part and DENIES in part Plaintiff's Motion.

         I.

         BACKGROUND

         The Court previously granted Plaintiff's Motion for Summary Judgment (Doc. 38) in its entirety and entered a Final Judgment granting Plaintiff, among other things, the right to enforce its lien on the subject property through non-judicial foreclosure. Doc. 69, Final J. Now Plaintiff seeks an award of attorney's fees in the amount of $12, 678.00. Doc. 65, Mot. for Att'y Fees 1; Doc 66-1, Cronenwett Decl. Ex. A ¶ 5. Plaintiff also seeks an additional $2, 500 for post-judgment motions, $5, 000 for an appeal to the Fifth Circuit Court of Appeals, and $2, 500 for an appeal to the United States Supreme Court. Doc. 66-1, Cronenwett Decl. Ex. A ¶ 9. In support of its Motion, Plaintiff attaches: (1) the Declaration of attorney Mark D. Cronenwett; (2) the resume of Cronenwett; and (3) redacted billing invoices. Doc. 66, Pl.'s App.

         II.

         LEGAL STANDARD

         Rule 54(d) of the Federal Rules of Civil Procedure governs costs and attorneys' fees. Under the American Rule, prevailing parties generally cannot recover attorneys' fees without a statutory or contractual basis. Summit Valley Indus., Inc. v. United Bhd. of Carpenters & Joiners, 456 U.S. 717, 721 (1982). Rule 54(d)(2) provides the procedure for the prevailing party, by motion, to specify the statute, rule, or other grounds entitling them to the award. Here, Plaintiff moves for attorney's fees according to the subject home equity note and security instrument.

         Courts in the Fifth Circuit “apply a two-step method for determining a reasonable attorneys' fee award.” Combs v. City of Huntington, 829 F.3d 388, 391 (5th Cir. 2016) (citing Jimenez v. Wood Cty., 621 F.3d 372, 379 (5th Cir. 2010), on reh'g en banc, 660 F.3d 841 (5th Cir. 2011)). Courts first calculate the lodestar, “‘which is equal to the number of hours reasonably expended multiplied by the prevailing hourly rate in the community for similar work.' In calculating the lodestar, ‘[courts] should exclude all time that is excessive, duplicative, or inadequately documented.'” Id. (quoting Jimenez, 621 F.3d at 379-80).

         “There is a strong presumption of the reasonableness of the lodestar amount.” Black v. SettlePou, P.C., 732 F.3d 492, 502 (5th Cir. 2013) (citing Perdue v. Kenny A., 559 U.S. 542, 552 (2010); Saizan v. Delta, 448 F.3d 795, 799 (5th Cir. 2006)). But after calculating the lodestar, courts move to the second step and evaluate the resulting value in relation to “the twelve factors set forth in Johnson v. Georgia Highway Express, Inc.Jimenez, 621 F.3d at 380 (citing Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), overruled on other grounds by Blanchard v. Bergeron, 489 U.S. 87, 90 (1989)). Those factors are addressed more in depth below.

         Under certain circumstances, “a district court may enhance or decrease the amount of attorneys' fees based on ‘the relative weights of the twelve'” Johnson factors. Black, 732 F.3d at 502 (quoting Saizan, 448 F.3d at 800). Lodestar enhancements, however, are permitted only in rare and exceptional circumstances. Perdue, 559 U.S. at 554. And “the lodestar may not be adjusted due to a Johnson factor that was already taken into account during the initial calculation of the lodestar.” Black, 732 F.3d at 502.

         III.

         ANALYSIS

         As mentioned above, Plaintiff moves for attorney's fees according to the subject home equity note and security instrument. The note to which Plaintiff refers is a Texas Home Equity Note, and it provides that in the event a borrower fails to pay as required, the “Note Holder will have the right to be paid back by [the borrower] for all of its costs and expenses in enforcing this Note to the extent not prohibited by applicable law, including Section 50(a)(6) Article XVI of the Texas Constitution. Those expenses include, for example, reasonable attorneys' fees.” Doc. 1-1, Texas Home Equity Note Ex. A, at 2. And the security instrument is a Texas Home Equity Security Instrument providing that the “Lender” is “entitled to collect all ...


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