Richard v. Caliber Home Loans, Inc.

• Decision Date: 30 September 2019
• Docket Number: Civil Action 2:15-cv-02647
• Parties: DENNIS G. RICHARD, Plaintiff, v. CALIBER HOME LOANS, INC., et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

DENNIS G. RICHARD, Plaintiff, v. CALIBER HOME LOANS, INC., et al., Defendants.

Civil Action 2:15-cv-02647

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

September 30, 2019

Chief Magistrate Judge Elizabeth P. Deavers

OPINION AND ORDER

This matter is before the Court for consideration of Plaintiff's Motion for Attorney Fees pursuant to 15 U.S.C. § 1692k, 15 U.S.C. § 1640(a), 12 U.S.C. § 2605(f), and Ohio Revised Code § 2323.51 (ECF No. 122), Defendants' Memorandum in Opposition (ECF No. 124), and Plaintiff's Reply (ECF No. 125). For the following reasons, Plaintiff's Motion is GRANTED IN PART. Plaintiff shall be AWARDED a total of $29,207.46 in attorney fees and costs.

I. BACKGROUND

Plaintiff initiated this action on July 23, 2015. (ECF No. 1.) The case arises from a mortgage obtained by Plaintiff for a home he purchased in 2005. (Id. at ¶ 23.) Notably, this is Plaintiff's third lawsuit against Defendant Caliber Home Loans ("Caliber") relating to their servicing of his mortgage. The previous two lawsuits resulted in settlements and dismissals of Plaintiff's claims. Here, Plaintiff alleged violations of the Fair Debt Collections Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq., the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2601, et seq., and the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601, et seq. The Court granted Defendants' Motion for Summary Judgement on Plaintiff's RESPA claim. (ECF No. 110.)

On August 3, 2018, Plaintiff filed a Notice of Acceptance of Offer of Judgment (ECF No. 121), giving formal notice of his acceptance of Defendants' Offer of Judgment made on July 20, 2018. On the same day, the Court conducted a status conference in which the Court directed counsel to make an effort to come to an agreement as to attorney fees and directed Plaintiff to file a motion within thirty (30) days if the parties were unable to compromise. (ECF No. 120.) Plaintiff filed a Motion for Attorney Fees pursuant to 15 U.S.C. § 1692k, 15 U.S.C. § 1640(a), 12 U.S.C. § 2605(f), and R.C. § 2323.51 on September 4, 2018 seeking $207,949.40 in attorney fees and $3,918,02 in costs, totaling $211,867.42. (ECF No. 122.) On September 10, 2018, the Court issued judgment in this case pursuant to the filing of the Notice of Acceptance with Offer of Judgment filed on August 3, 2018. (ECF No. 123.) The Court entered judgment in the amount of $15,000.00, plus reasonable costs and attorney's fees, incurred by Plaintiff on or before the date of the making of the Offer of Judgment, in an amount to be determined by the Court. (Id.) Defendants filed their Memorandum in Opposition to Plaintiff's Motion for Attorney Fees on September 25, 2018, requesting that the Court award Plaintiff's counsel no more than $19,999.15 in attorney fees and costs. (ECF No. 124.) Plaintiff filed his Reply on October 9, 2018. (ECF No. 125.)

II. STANDARD OF REVIEW

Typically, litigants are "responsible for their own attorney fees irrespective of the outcome of civil proceedings." Lee v. Javitch, Block & Rathbone, LLP, 568 F. Supp. 2d 870, 873 (S.D. Ohio 2008). Congress, however, has legislated exceptions to this general rule "whereby prevailing parties may seek to recover costs from their opposition in an attempt toencourage consumers to act as private attorneys general." Id. (quoting Mann v. Acclaim Fin. Servs. Inc., 348 F. Supp. 2d 923, 927 (S.D. Ohio 2004)) (internal quotations omitted). One such exception is the FDCPA, which provides "that a successful plaintiff is entitled to recovery from the defendant the costs of the action, together with a reasonable attorney's fee as determined by the court." Id. (quoting 15 U.S.C. § 1692k(a)(3)) (internal quotations omitted). "The FDCPA mandates the award of a reasonable attorney's fee and costs to a prevailing party." Dowling v. Litton Loan Serv. LP, 320 Fed. App'x 442, 446 (6th Cir. 2009) (citing 15 U.S.C. § 1692k(a)(3) and Lee v. Thomas & Thomas, 109 F.3d 302, 307 (6th Cir. 1997)) (internal quotations omitted). The party seeking attorney's fees under a federal fee-shifting statute such as the FDCPA bears the burden to show he is entitled to the amount requested. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Reed v. Rhodes, 179 F.3d 453, 472 (6th Cir. 1999) (citations omitted). "The fees requested should be documented, and, where they are not, the district court may reduce the award accordingly." Derry v. Buffalo & Assoc., PLC, No. 2:12-cv-303, 2014 WL 4450146, at *2 (E.D. Tenn. Sept. 10, 2014) (citations omitted). Likewise, the TILA also permits recovery of reasonable attorney's fees and costs. Purtle v. Eldridge Auto Sales, Inc., 91 F.3d 797, 800 (6th Cir. 1996) (citing 15 U.S.C. § 1640(a)(3)).

"Attorney's fees for successful litigants under federal fee shifting statutes are commonly calculated using the 'lodestar' method[.]" Derry, 2014 WL 4450146 at *2. The lodestar amount is calculated by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate." Imwalle v. Reliance Med. Prods. Inc., 515 F.3d 531, 551-52 (6th Cir. 2008) (citing Hensley, 461 U.S. at 433). In the Sixth Circuit, district courts apply a lodestar calculation based on the "prevailing market rate in the relevant community" when considering the reasonableness of the fee award. Smith v. Serv. Master Corp., 592 F. App'x 353, 369 (6thCir. 2014) (citing Adcock-Ladd v. Sec'y of Treasury, 227 F.3d 343, 350 (6th Cir. 2000)). The calculation considers "the number of hours reasonably spent on the case by an attorney times a reasonable hourly rate." Smith, 592 F. App'x at 369. The resulting sum may be adjusted to reflect factors such as the "results obtained." Hensley, 461 U.S. at 434 (quoting Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)); Gonter v. Hunt Valve Co., Inc., 510 F.3d 610, 621 (6th Cir. 2007). "Determining a 'reasonable attorney's fee' is a matter that is committed to the sound discretion of a trial judge." Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 558 (2010) (citation omitted). However, "the judge's discretion is not unlimited." Id.

Alhough the lodestar method is the appropriate starting point for determining attorney's fees, the inquiry does not end there. See Reed, 179 F.3d at 472. Other considerations may lead a district court to adjust the fee. See id. The most critical factor in determining the reasonableness of a fee award is "the degree of success obtained." Farrar v. Hobby, 506 U.S. 103, 114 (1992) (citing Hensley, 461 U.S. at 436); see also Cramblit v. Fikse, 33 F.3d 633, 635 (6th Cir. 19994). If the purpose of the litigation is to recover damages, "the district court must consider the amount and nature of damages awarded when determining attorney's fees." Derry, 2014 WL 4450146 at *2 (citing Farrar, 506 U.S. at 115; Cramblit, 33 F.3d at 635). If the plaintiff "achieves only partial success against the defendant, the district court must consider whether the plaintiff achieved a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award." Id. (citing Hensley, 461 U.S. at 434.)

Importantly, "federal fee shifting statutes do not provide for enhancements of fees in order to compensate for the risk of nonpayment when an attorney takes a case on a contingency basis." Id. at *3 (citing City of Burlington v. Dague, 505 U.S. 557, 561-63 (1992) (federal feeshifting statutes which authorize a court to award "reasonable attorney's fees" to a "prevailing or substantially prevailing party" do not authorize fee enhancements for the purpose of compensating attorneys hired on a contingency basis for the risk of loss); Davis v. Mutual Life Ins. Co. of New York, 6 F.3d 367, 381 (6th Cir. 1993) (holding no fee enhancement due to counsel for taking a case which impinges significantly on a small practice's ability to take other cases); Coulter v. Tennessee, 805 F.2d 146, 149 n.4 (6th Cir. 1986) ("In short, the lodestar figure includes most, if not all, of the relevant factors comprising a 'reasonable' attorney's fee, and it is unnecessary to enhance the fee for superior performance in order to serve the statutory purpose of enabling plaintiffs to secure legal assistance.") (citation omitted)).

"After calculating the lodestar, the court may modify the amount by applying the factors listed in Ohio Rule of Professional Conduct 1.5(a)." Braun v. Ultimate Jetcharters, Inc., No. 5:12-cv-1635, 2014 WL 3749418, at *13 (N.D. Ohio July 30, 2014). The factors include the following:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers performing the services;

(8) whether the fee is fixed or contingent.

Ohio R. Prof'l Conduct 1.5(a)(1)-(8).

III. ANALYSIS

Plaintiff seeks $207,949.40 in attorney fees and $3,918,02 in costs, totaling $211,867.42. (ECF No. 122.) Defendants request that the Court award Plaintiff's counsel no more than $19,999.15 in attorney fees and costs. (ECF No. 124.) The Court takes up three initial matters before addressing the lodestar calculation.

A. Costs and Fees Incurred After July 20, 2018

The Court's Judgment indicates that "judgment is entered in the amount of $15,000.00, plus reasonable costs and attorney's fees, incurred by Plaintiff on or before the date of the making of the Offer of Judgment, in an amount to be determined by the Court." (ECF No. 123 (emphasis added).) Defendant made the Offer of Judgment on ...