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Jacobs v. Ocwen Loan Servicing, LLC

United States District Court, D. Colorado

March 26, 2015

DEAN L. JACOBS, and MARCIELLE S. JACOBS, Plaintiffs,
v.
OCWEN LOAN SERVICING, LLC, FEDERAL HOME LOAN MORTGAGE CORPORATION, VADEN LAW FIRM, LLC, LAWRENCE E. CASTLE, in his individual capacity, MEGASTAR FINANCIAL CORP., YVONNE G. SMITH, GORDON D. SMITH, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.

ORDER GRANTING MOTIONS FOR ATTORNEY FEES

ROBERT E. BLACKBURN, District Judge.

The matters before me are: (1) Defendant Lawrence E. Castle's Motion for Attorney Fees [#109][1] filed August 21, 2014; and (2) Defendant Vaden Law Firm, LLC's Motion for Attorneys' Fees [#112] filed August 29, 2014. No response was filed addressing either motion. I grant both motions.

I. JURISDICTION

I have subject matter jurisdiction under 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1367 (supplemental jurisdiction).

II. STANDARD OF REVIEW

The generally applicable "American Rule" provides that "the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser" unless specifically authorized by statute. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247 (1975); see also Federal Trade Commission v. Kuykendall, 466 F.3d 1149, 1152 (10th Cir. 2006). However, in this case attorney fees may be awarded under 42 U.S.C. § 1988 to the extent those fees are related to claims asserted under 42 U.S.C. § 1983. In addition, attorney fees may be awarded under the fee shifting provisions of §12-14-113 (1.5), C.R.S. (a part of the Colorado Fair Debt Collections Practices Act); 15 U.S.C. § 1692k(a)(3) (a part of the Federal Fair Debt Collections Practices Act); and §6-1-113(3), C.R.S. (a part of the Colorado Consumer Protection Act).

The fee shifting provisions above involve both federal law and the law of the State of Colorado. Under Colorado law, if a statute providing for an award of reasonable attorney fees does not provide a definition of reasonableness, "the amount of the award must be determined in light of all the circumstances, based upon the time and effort reasonably expended by the prevailing party's attorney." Tallitsch v. Child Support Services, Inc., 926 P.2d 143, 147 (Colo. App.1996) (internal quotation and citation omitted). The statutes at issue here do not provide a definition of reasonableness. Thus, "[i]n awarding attorney fees, the trial court may consider, among other factors, the amount in controversy, the duration of representation, the complexity of the case, the value of the legal services to the client, and the usage in the legal community concerning fees in similar cases. No one of these factors is conclusive." Melssen v. Auto-Owners Ins. Co., 285 P.3d 328, 339 (Colo. App., 2012) (citation omitted).[2] "The party requesting an award of attorney fees bears the burden of proving by a preponderance of the evidence its entitlement to such an award." American Water Development, Inc. v. City of Alamosa, 874 P.2d 352, 383 (Colo. 1994)

The Colorado and federal standards for calculating a reasonable attorney fee are essentially identical. The starting point for any calculation of a reasonable attorney fee is the "lodestar, " that is, the number of hours reasonably expended multiplied by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Malloy v. Monahan, 73 F.3d 1012, 1017-18 (10th Cir. 1996). In determining the reasonable number of hours spent on the litigation, the applicant must exercise the same "billing judgment" as would be proper in setting fees for a paying client. Hensley, 461 U.S. at 437; Malloy, 73 F.3d at 1018. "Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority.'" Hensley, 461 U.S. at 434 (quoting Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980) (en banc)) (emphases in Copeland ). Counsel, therefore, must make a good faith effort to exclude hours that are "excessive, redundant or otherwise unnecessary." Id.

III. ANALYSIS

This case concerned a foreclosure by a lender on the home once owned by the plaintiffs, Dean and Marcielle Jacobs. In their amended complaint [#24], the Jacobs asserted claims against various entities and persons allegedly involved in the foreclosure proceedings. Their claims included: (1) 42 U.S.C. § 1983 (due process); (2) 42 U.S.C. § 1983 (equal protection); (3) 42 U.S.C. § 1983 (civil conspiracy); (4) fraud; (5) violation of the federal Fair Debt Collection Practices Act; (6) violation of the Colorado Fair Debt Collection Practices Act; (7) violation of the Colorado Consumer Protection Act; (8) negligence per se; (9) intentional infliction of emotional distress; (10) negligence; and (11) violation of the Colorado statute which prohibits spurious lien documents.

All of the claims of the Jacobs were dismissed for failure to state a claim on which relief can be granted. The claims and bases for dismissal are detailed in recommendations [#57, #84, #85, #86, & #87] of the United States Magistrate Judge assigned to this case and in my order [#105] adopting those recommendations and granting the corresponding motions to dismiss. To rehearse, there is no arguable basis for any of the claims of the Jacobs.

A. Entitlement to Award of Attorney Fees

1. Lawrence E. Castle

Defendant Lawrence E. Castle seeks an award of attorney fees under 42 U.S.C. § 1988. Under § 1988, "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." The threshold for ...


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