Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

US Bank Trust, N.A. v. Walbert

United States District Court, D. Connecticut

October 16, 2017

U.S. BANK TRUST, N.A., AS TRUSTEE FOR WELLS FARGO ASSET SECURITIES CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2005-AR2, SUCCESSOR WACHOVIA BANK, N.A., Plaintiff,
v.
ANDREW WALBERT, Defendant.

          RULING ON PLAINTIFF'S APPLICATION FOR ATTORNEY'S FEES AND COSTS HAIGHT, Senior District Judge:

          CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE

         On August 18, 2017, this Court granted a motion by Plaintiff U.S. Bank National Association, as Trustee, Successor in Interest to Wachovia Bank, National Association, as Trustee for Wells Fargo Asset Securities Corporation, Mortgage Pass-Through Certificates, Series 2005-AR2[1] ("Plaintiff"), seeking remand of this matter to state court. The Court ordered that Defendant Andrew Walbert ("Defendant") pay Plaintiff attorney's fees and costs, pursuant to 28 U.S.C. § 1447(c). The instant ruling resolves Plaintiff's subsequent application for attorney's fees, Doc. 17. For the reasons that follow, the Court declines to award Plaintiff the amount it requests and directs payment by Defendant of a lesser amount.

         I. BACKGROUND

         On June 16, 2017, Defendant, appearing pro se, filed a Notice of Removal [Doc. 1] removing from the Connecticut Superior Court, Judicial District of Danbury a foreclosure action brought against him by Plaintiff. Plaintiff filed a Motion to Remand the action to the state court and an accompanying Memorandum of Law in Support of its Motion on July 17, 2017. [Docs. 9, 10]. On August 18, 2017, this Court issued a Ruling [Doc. 14] granting Plaintiff's Motion to Remand to State Court, familiarity with which is assumed, and is described only as necessary here.

         The Court concluded that Defendant did not have a reasonable basis for alleging that the action was removable or that the removability of it was concealed by Plaintiff in bad faith. See Doc. 14 at 10. The Court determined that "Defendant's removal has delayed the ultimate adjudication of the merits of the action, which commenced over four years ago, and caused unnecessary expenditures of fees and time by Plaintiff and this Court addressing his removal." Id. The Court noted that Defendant had not addressed the governing law, nor had he accurately represented the status of the state court litigation. See Id. Accordingly, the Court determined that Plaintiff was entitled to attorney's fees and costs related to Defendant's removal of the case, pursuant to 28 U.S.C. § 1447(c). See Id. 10-11.

         Plaintiff was directed to submit an affidavit itemizing its costs and fees "related only to this removal." Id. at 10. The Court required the submission of this affidavit by September 5, 2017, with any objections from Defendant due on or before September 15, 2017. Plaintiff's application was submitted on September 5, 2017. [Doc. 17]. No objections were raised to the submission by Defendant. This matter is ripe for the Court's review.

         I. STANDARD OF REVIEW

         "The district court retains discretion to determine ... what constitutes a reasonable fee." Millea v. Metro-N. R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011) (quoting LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 758 (2d Cir. 1998)); see also Morgan Guar. Trust Co. v. Republic of Palau, 971 F.2d 917, 924 (2d Cir. 1992) (noting that 28 U.S.C. § 1447(c) "affords a great deal of discretion and flexibility to the district courts in fashioning awards of costs and fees"). "However, this discretion is not unfettered, " and "the district court must abide by the procedural requirements for calculating those fees articulated by [the Second Circuit] and the Supreme Court." Millea, 658 F.3d at 166.

         "The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The resulting amount "is only presumptively reasonable; it is still within the court's discretion to adjust the amount upward or downward based on the case-specific factors." Tyco Healthcare Grp. LP v. Ethicon Endo-Surgery, Inc., No. 3:10-CV-60, 2012 WL 4092515, at *1 (D. Conn. Sept. 17, 2012) (quotation marks and citation omitted).

         This Circuit follows the dictates of Judge Newman's opinion in New York State Association for Retarded Children, Inc. v. Carey, 711 F.2d 1136 (2d Cir. 1983), in evaluating a movant's proffered evidence supporting its attorneys' fees request:

All applications for attorney's fees, whether submitted by profit-making or non-profit lawyers, for any work done after the date of this opinion should normally be disallowed unless accompanied by contemporaneous time records indicating, for each attorney, the date, the hours expended, and the nature of the work done.

Id. at 1154. The Second Circuit subsequently clarified its use of the word "normally" in Carey, holding that while it "indicates that we intend to leave the district courts with some limited discretion to make exceptions to the hard-and-fast rule, " Carey nonetheless "sets out unequivocally that absent unusual circumstances attorneys are required to submit contemporaneous records with their fee applications." Scott v. City of New York, 626 F.3d 130, 133 (2d Cir. 2010). "In other words, Carey establishes a strict rule from which attorneys may deviate only in the rarest of cases." Id.

         "Attorney's fees must be reasonable in terms of the circumstances of the particular case[.]" Alderman v. Pan Am World Airways, 169 F.3d 99, 102 (2d Cir. 1999) (citing Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir. 1994)). In determining a fee award, the Court is mindful that "attorney's fees are to be awarded 'with an eye to moderation, seeking to avoid either the reality or the appearance of awarding windfall fees.'" Carey, 711 F.2d at 1139 (quoting Beazer v. New York City Transit Authority, 558 F.2d 97, 101 (2d Cir. 1997)).

         II. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.