Clark v. New Century Mortgage Company

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 ALFRED CLARK, Case No.: 2:18-cv-02241-APG-BNW 4 Plaintiff Order Granting U.S. Bank Trustee’s Motion for Attorney’s Fees 5 v. [ECF No. 42] 6 NEW CENTURY MORTGAGE COMPANY, et al., [7] Defendants [8] 9 Defendant U.S. Bank, N.A. Trustee, moves for attorney’s fees against pro se plaintiff 10 Alfred Clark for the litigation costs incurred in this case. This is Clark’s third lawsuit against 11 defendants U.S. Bank, Barclays Capital Real Estate Inc., Western Progressive – Nevada, Inc., 12 and Ocwen Loan Servicing, LLC. U.S. Bank claims that it is entitled to recover attorney’s fees 13 under Nevada Revised Statutes (NRS) § 18.010(1) because the parties’ deed of trust stipulates 14 that the lender may recover reasonable attorney’s fees related to securing its interest in the 15 property. U.S. Bank also attempts to justify its motion under NRS § 18.010(2), noting that it had 16 recovered under the $20,000 limit, and that Clark’s complaint initiated baseless litigation to 17 harass U.S. Bank. Clark did not respond to U.S. Bank’s motion for attorney’s fees. 18 I grant U.S. Bank’s motion for attorney’s fees. See LR 54-14(d). But because there is a 19 $79.00 discrepancy between the $16,840.30 that U.S. Bank totaled in its billing invoices and the 20 $16,919.30 that U.S. bank requested in its motion, I award U.S. Bank $16,840.30. See ECF Nos. 21 42 at 5; 42-2. 22 I. BACKGROUND 23 I detailed the facts in this case in my prior order dismissing the case. ECF No. 31 at 2. In summary, Clark sued U.S. Bank and other defendants in 2016 after being notified that he was in 1 default on his mortgage payments. Id. Clark voluntarily dismissed his first complaint in April 2 2017, but he sued the defendants again later that year. Id. Judge Jennifer Dorsey dismissed 3 Clark’s common law wrongful foreclosure claims without prejudice because no foreclosure had 4 taken place. Id. Judge Dorsey also dismissed Clark’s Fair Debt Collection Practices Act 5 (FDCPA) claim with prejudice because it was time-barred. Id. Despite that, Clark sued the 6 defendants again in this case for FDCPA violations, fraud, and to quiet title to his property. Id. 7 Because Clark’s claims here arose from the same facts alleged in his prior suit, I concluded that 8 he was precluded from relitigating his claims, granted the defendants’ motion to dismiss with 9 prejudice, and denied Clark’s various other motions as moot. Id. at 1. Clark appealed my 10 decision, but the Ninth Circuit affirmed. See ECF Nos. 36; 38. U.S. Bank now moves for 11 attorney’s fees against Clark. ECF No. 42. 12 II. DISCUSSION 13 A. Legal Standard 14 Under Nevada law, “attorney’s fees are only available when authorized by a rule, statute, 15 or contract.” Flamingo Realty, Inc. v. Midwest Dev., Inc., 879 P.2d 69, 73 (Nev. 1994) (quotation 16 omitted). U.S. Bank moves for attorney’s fees under NRS §§ 18.010(1) and (2). NRS 17 § 18.010(1) provides that “[t]he compensation of an attorney and counselor for his or her 18 services is governed by agreement, express or implied, which is not restrained by law.” NRS 19 § 18.010(2) allows for attorneys’ fees if a party brings or maintains a claim “without reasonable 20 ground or to harass the prevailing party,” or if the prevailing party recovers less than $20,000. 21 In Nevada, “the method upon which a reasonable fee is determined” is subject to the 22 court’s discretion, which “is tempered only by reason and fairness.” Shuette v. Beazer Homes 23 Holdings Corp., 124 P.3d 530, 548-49 (Nev. 2005) (en banc) (quotation omitted). The lodestar 1 approach, which multiplies “the number of hours reasonably spent on the case by the reasonable 2 hourly rate,” is viewed as a presumptively reasonable fee award in most cases. Id. at 549 n.98 3 (quotation omitted); Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008). The 4 lodestar calculation is influenced by the following factors: 5 (1) the qualities of the advocate: his ability, his training, education, experience, professional standing and skill; (2) the character of the work to be done: its difficulty, its 6 intricacy, its importance, time and skill required, the responsibility imposed and the prominence and character of the parties where they affect the importance of the litigation; 7 (3) the work actually performed by the lawyer: the skill, time and attention given to the work; (4) the result: whether the attorney was successful and what benefits were derived. [8] 9 Brunzell v. Golden Gate Nat’l Bank, 455 P.2d 31, 33 (Nev. 1969) (quotation omitted). 10 Although state law governs whether a party is entitled to attorney’s fees, federal law 11 dictates the procedure for requesting attorney’s fees. Carnes v. Zamani, 488 F.3d 1057 , 1059 12 (9th Cir. 2007). Federal Rule of Civil Procedure 54(d)(2)(B)(i) requires that a motion for fees 13 and other related nontaxable costs be filed no later than 14 days after the entry of judgment. The 14 motion must identify the grounds entitling the movant to a fee award and state the amount sought 15 or provide a fair estimate. Fed. R. Civ. P 54(d)(2)(B)(ii)-(iii). The movant also must comply 16 with Local Rule 54-14(a), which requires the following: 17 (1) A reasonable itemization and description of the work performed; (2) An itemization of all costs sought to be charged as part of the fee award and not 18 otherwise taxable under LR 54-1 through 54-13; (3) A brief summary of: 19 (A) The results obtained and the amount involved; (B) The time and labor required; 20 (C) The novelty and difficulty of the questions involved; (D) The skill requisite to perform the legal service properly; 21 (E) The preclusion of other employment by the attorney due to acceptance of the case; 22 (F) The customary fee; (G) Whether the fee is fixed or contingent; 23 (H) The time limitations imposed by the client or the circumstances; (I) The experience, reputation, and ability of the attorney(s); 1 (J) The undesirability of the case, if any; (K) The nature and length of the professional relationship with the client; 2 (L) Awards in similar cases; and (M) Any other information the court may request. [3] 4 The motion must be accompanied by an affidavit from the attorney overseeing the billing in the 5 case to authenticate the information and to confirm “that the bill was reviewed and edited and 6 that the fees and costs charged are reasonable.” LR 54-14(b). 7 B. U.S. Bank is Entitled to $16,840.30 in Attorney’s Fees 8 U.S. Bank is entitled to recover $16,840.30 in attorney’s fees under NRS § 18.010(1). 9 The parties’ deed of trust authorized U.S. Bank to recover attorney’s fees from Clark. The deed 10 of trust provides that the lender can take reasonable action to protect its interest in the property, 11 which may include “appearing in court” and “paying reasonable attorneys’ fees.” ECF No. 42-1 12 at 8. Because the contract provides that the costs associated with litigating the lender’s interest 13 in the property may “become additional debt of [the borrower] secured” by the deed of trust, 14 U.S. Bank is permitted to recover reasonable attorney’s fees under NRS § 18.010(1). Id.1 15 U.S. Bank satisfied the procedural requirements of Rule 54(d)(2). It timely moved for 16 attorney’s fees within 14 days after entry of judgment, properly cited NRS § 18.010(1) as the 17 statutory grounds entitling it to an award, and stated the amount it sought. See ECF Nos. 41, 42. 18 U.S. Bank’s attorneys similarly met the local rule requirements and charged reasonable 19 rates and hours under the lodestar. U.S. Bank’s counsel is an established regional firm, has 20 extensive experience litigating real estate lender liability cases, and maintains a long-standing 21 relationship with U.S. Bank. ECF Nos. 42 at 6; 42-3. Although the motion to dismiss, motion to [22] 1 Because the deed of trust permits U.S. Bank to recover under NRS § 18.010(1), I need not [23] address U.S. Bank’s argument regarding NRS § 18.010(2) and the frivolity of Clark’s lawsuit, motions, and appeal. 1}| stay discovery, and Ninth Circuit appellate brief were not particularly complex, counsel expended a reasonable amount of time on those tasks and that precluded the firm from spending 3|| that time on matters for other clients. ECF Nos. 42 at 6-8; 42-3. Throughout the course of litigation, Clark filed several motions to strike the defendants’ briefs, and a motion to reconsider 5] staying discovery, which also increased U.S. Bank’s fees and costs. See ECF Nos. 17, 20, 22, 26. 6|| It was reasonable for U.S. Bank to expend approximately 70 hours of time over two years to 7|| obtain dismissal of this suit. ECF No. 42-2. The attorneys’ hourly rates, which ranged from $265 8|| to $350 depending on the seniority of the attorney, were likewise reasonable given the customary 9] hourly rates for this type of litigation in this region. ECF Nos. 42 at 6-8; 42-3. 10 U.S. Bank moved for $16,919.30 in attorney’s fees, but provided invoices that totaled to $79.00 less than that amount. Compare ECF No. 42 at 5, with ECF No. 42-2. I therefore award Bank $16,840.30 against Clark. ITT. CONCLUSION 14 I THEREFORE ORDER that defendant U.S. Bank’s motion for attorney’s fees (ECF No. 15||42) is GRANTED. The clerk of court is instructed to enter judgment in favor of defendant U.S. Bank, N.A. and against plaintiff Alfred Clark in the amount of $16,840.30 in attorney’s fees. 17 DATED this 21st day of July, 2021. 18 OLE ” ANDREWP.GORDON. 0 UNITED STATES DISTRICT JUDGE