Wells Fargo Bank v. Moskoff

Daron L. Janis, Esq.

John S. McNicholas, Esq.

Tara L. Trifon, Esq.

David B. Moskoff, pro se

Daphne M.N. Fotiades, pro se

MEMORANDUM ORDER

Joseph N. Laplante, United States District Judge

Following a jury trial and verdict in its favor, Plaintiff Wells Fargo moves for an award of attorneys' fees and costs in the amount of $333, 038.84.^[1] It seeks its attorneys' fees and costs for prosecuting and trying this judicial foreclosure action under a fee-shifting provision in the operative mortgage as well as Fed.R.Civ.P. 54(d)(2). Defendants David B. Moskoff and Daphne M.N. Fotiades object to Wells Fargo's fee and cost request, arguing that Wells Fargo is not entitled to a fee award and disputing the amount of fees and costs requested. This court has jurisdiction under 28 U.S.C. § 1332(a) (diversity) because the parties are citizens of different states and the amount in controversy exceeds $75, 000.

After consideration of the parties' submissions, including careful review of the billing records submitted by Wells Fargo, and hearing oral argument, the court grants Wells Fargo's motion but reduces the amount of requested fees and costs as detailed below. While the rates proposed by Wells Fargo are reasonable, the number of hours and amount of certain costs requested are excessive or unrecoverable.

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I. Background

Wells Fargo filed suit in April 2017.^[2] It sought a declaratory judgment confirming its right to enforce the subject note and mortgage against Moskoff and Fotiades, a judicial foreclosure order and decree of sale, and a judgment for the amount due on the note.^[3] The case was hotly contested at every stage, and included over 300 filings (200 before trial), six interlocutory appeals, repeated discovery disputes, and court-supervised discovery. After over four years of litigation, ^[4] Wells Fargo tried its three claims against Moskoff and Fotiades before a jury, resulting in a verdict for Wells Fargo. Wells Fargo utilized two sets of lawyers in this matter. In the first part of the case, from roughly April 2017 to November 2019, lawyers from Korde and Associates in Massachusetts represented Wells Fargo. Then, from November 2019 through the trial in June 2021 and thereafter, lawyers from Locke Lord LLP's Boston, Massachusetts and Hartford, Connecticut offices represented the company.

II. Analysis

A. Entitlement to attorneys' fees and costs

In a diversity action such as this one that raises state law claims, “state law governs the award of fees.” GT Solar Inc. v. EMX Controls, Inc., No. 12-CV-253-JD, 2012 WL 6214405, at

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*1 (D.N.H. Dec. 10, 2012) (DiClerico, J.) (citing In re Volkswagen & Audi Warranty Extension Litig., 692 F.3d 4, 15 (1st Cir. 2012)). Under New Hampshire law, a request for attorneys' fees “must be grounded upon statutory authorization, a court rule, an agreement between the parties, or an established exception to the rule that each party is responsible for paying his or her own counsel fees.” In the Matter of Hampers & Hampers, 154 N.H. 275, 289 (2006) (quotation omitted). An agreement between the parties that shifts attorneys' fees is interpreted by “giving the language used by the parties its reasonable meaning.” Turner v. Shared Towers VA, LLC, 167 N.H. 196, 207 (2014).

Wells Fargo grounds its request for attorneys' fees on its mortgage with the Defendants. The Defendants ignore the attorneys' fees provision in the mortgage and instead argue that the Federal Declaratory Judgment Act does not provide Wells Fargo with a right to collect its attorneys' fees in this action.^[5] The court agrees with Wells Fargo that the parties' mortgage provides it with the right to collect attorneys' fees and costs from the Defendants.

Here, the jury found the following: (1) both Moskoff and Fotiades signed the mortgage and breached their obligations under the mortgage; (2) Moskoff signed the operative note and breached his obligations thereunder; and (3) Wells Fargo was the holder of the note and mortgagee of the mortgage. The Defendants are therefore in default under the terms of the mortgage. In the event of a default under the mortgage, Wells Fargo may pursue “any other remedies or take any other actions permitted by applicable law” to collect amounts owed, and in pursuing these remedies, Wells Fargo “will collect all expenses incurred . . . including, but not

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limited to, reasonable attorneys' fees and costs of title evidence.”^[6] Thus, the plain and reasonable meaning of the mortgage provides Wells Fargo with the ability to recover from the Defendants its “reasonable attorneys' fees and costs of title evidence” incurred in pursuing this judicial foreclosure action. And under Fed.R.Civ.P. 54(d)(1), Wells Fargo, as the prevailing party, is also entitled to its costs.

B.Amount of fee award

New Hampshire uses “eight guiding factors . . . in determining whether an attorney's fee is reasonable.” Town of Barrington v. Townsend, 164 N.H. 241, 250 (2012) (quoting Funtown USA, Inc. v. Town of Conway, 129 N.H. 352, 356 (1987)). They are “the amount involved, the nature, novelty, and difficulty of the litigation, the attorney's standing and the skill employed, the time devoted, the customary fees in the area, the extent to which the attorney prevailed, and the benefit thereby bestowed on his clients.” Id.

In this court, the “calculation of shifted attorneys' fees generally requires courts to follow the familiar lodestar approach.” Cent. Pension Fund of the Int'l Union of Operating Eng'rs & Participating Emp'rs v. Ray Haluch Gravel Co., 745 F.3d 1, 5 (1st Cir. 2014) (citing Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 551-52 (2010)). Under that approach, “the first step is to calculate the number of hours reasonably expended by the attorneys for the prevailing party, excluding those hours that are ‘excessive, redundant, or otherwise unnecessary.'” Id. (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)); see also In re Sullivan, 674 F.3d 65, 69 (1st Cir. 2012) (in determining the number of hours productively spent, the court should subtract time expended “on unnecessary, duplicative, or overworked tasks”). The court also determines “a

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reasonable hourly rate or rates -- a determination that is often benchmarked to the prevailing rates in the community for lawyers of like qualifications, experience, and competence. The product of the hours reasonably worked times the reasonable hourly rate(s) comprises the lodestar, ” which may then “be further adjusted based on other considerations.” Ray Haluch Gravel Co., 745 F.3d at 5.

Because New Hampshire's eight guiding factors “jibe with the lodestar method, ” the court will use the lodestar approach and also consider the state court factors to determine whether Wells Fargo's fee request is reasonable. In re Taal, 540 B.R. 24, 31 (Bankr. D.N.H. 2015); see also In re Sullivan, 674 F.3d at 69 (noting that the base loadstar amount may be adjusted “based on several different factors, including the results obtained, and the time and labor required for the efficacious handling of the matter”) (quoting DeJesus Nazario v. Morris Rodriguez, 554 F.3d 196, 207 (1st Cir. 2009)).

1. Hourly rates sought

The court determines a reasonable hourly rate based on “the prevailing rates in the community for lawyers of like qualifications, experience, and competence.” Cent. Pension Fund, 745 F.3d at 5. Wells Fargo seeks the following hourly rates for both its national managing counsel and support staff and local counsel and staff:

Attorney at Korde & Associates, P.C.: $215

Paralegal at Korde & Associates, P.C.: $95

Partner/Senior Counsel at Locke Lord LLP: $400

Counsel at Locke Lord LLP: $150

Paralegal at Locke Lord LLP: $150

Research Librarian at Locke Lord LLP: $140

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Defendants do not challenge the requested rates or otherwise argue that they are too high.

Both its national counsel rates and its local counsel rates are reasonable and commensurate with the rates of experienced partners or senior attorneys in the New Hampshire and Boston markets. See Town of Wolfeboro v. Wright-Pierce, Inc., No. 12-CV-130-JD, 2014 WL 12927092, at *5 (D.N.H. Mar. 10, 2014) (finding a rate of $400 for a partner at Hinckley Allen & Snyder, LLP's Boston office was reasonable) (DiClerico, J.); Valsoft Corp. v. Bacalan, Case No. 19-cv-672-JL, 2020 WL 9780743 (D.N.H. Aug. 4, 2020) (finding experienced attorney rates of $390 and $400 per hour reasonable) (Johnstone, M.J.); see also Wachovia Mortgage, FSB v. Toczek, 841 Fed.Appx. 267 (2d Cir. 2021) (finding that $425 an hour for a partner handling a foreclosure action in the District of Connecticut was reasonable). The proposed paralegal and support staff rates are also reasonable and consistent with the prevailing paralegal rates in the New Hampshire and New England markets.^[7] The court thus accepts the attorney and staff rates proposed by Wells Fargo.

2. Number of hours worked

Wells Fargo seeks fees for the following amounts of time spent by its lawyers and support staff in this matter:

Korde & Associates, P.C. (attorneys): 201.60

Korde & Associates, P.C. (paralegals): 31.4

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Locke Lord LLP (attorneys): 633.90

Locke Lord LLP (team members/paralegals^[8]): 27.7

Total: 894.6 hours

Wells Fargo argues that these nearly 900 hours were reasonably spent “given the highly litigious nature of this foreclosure action.” As support, it references the numerous motions filed by the Defendants, which required objections and oral argument, as well as the extensive discovery process. Wells Fargo also alleges that its...