United States District Court, N.D. Texas, Dallas Division
HSBC BANK USA, N.A., AS TRUSTEE FOR MERRILL LYNCH MORTGAGE INVESTORS TRUST, MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2005-WMCI, Plaintiff,
KENNETH E. CRUM, Defendant.
MEMORANDUM OPINION AND ORDER
J. BOYLE UNITED STATES DISTRICT JUDGE
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.
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.
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.
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).
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.
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.
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 ...