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.

PAYTON v. NEW CENTURY MORTGAGE CORPORATION

March 10, 2004.

MARTHA PAYTON, Plaintiff,
v.
NEW CENTURY MORTGAGE CORPORATION; OCWEN FEDERAL BANK, FSB; U.S. BANK, N.A., and JOHN DOES 1-5, Defendants; OCWEN FEDERAL BANK, FSB, Plaintiff, v. MARTHA PAYTON, Defendant



The opinion of the court was delivered by: JAMES HOLDERMAN, District Judge

MEMORANDUM OPINION AND ORDER

On October 10, 2003, this court ruled on the parties' cross-motions for summary judgment. This ruling included a finding that plaintiff Martha Payton ("Payton") was entitled to recover reasonable attorneys' fees. Payton has now petitioned this court for an award of attorneys' fees and costs. For the following reasons, Payton is awarded costs in the amount of $829.90 and attorneys' fees in the amount of $16,983.67. Page 2

BACKGROUND

  On January 18, 2002, Payton obtained a mortgage loan from New Century Mortgage Corporation ("New Century"). This loan was assigned to U.S. Bank, N.A., ("USB"), and Ocwen Federal Bank ("Ocwen") functioned as the servicer of the loan. During 2002, Payton missed one or more mortgage payments. Ocwen refused to accept any further payments and determined to foreclose. A foreclosure action was in fact filed against Payton. On December 23, 2002, Payton gave notice by a letter mailed to Ocwen that she was rescinding her loan. The loan was not rescinded. On January 15, 2003, Payton filed a complaint in case number 03 C 333 against defendants New Century, Ocwen, USB and five John Doe defendants requesting rescission of a residential mortgage loan, statutory damages and attorneys' fees and costs for violations of the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601 et seq. On January 30, 2003, Ocwen filed a complaint against Payton In case number 03 C 703,*fn1 seeking a declaratory judgment that Payton was not entitled to rescind her loan, or in the alternative, that if Payton was entitled to rescind that Ocwen was entitled to receive proper payments owed to Ocwen and that Ocwen was entitled to attorneys' fees and costs. On March 16, 2003, Payton paid-off the loan that was the subject of this litigation by refinancing with another company.

  Payton reached an agreement to settle her claims with New Century. New Century was voluntarily dismissed from the action by this court's order of June 24, 2003, which also vacated a previous default judgment entered against New Century. The agreement with New Century provided Payton with a payment of $23,607.02 and attorneys' fees and costs of $6,000.

  The October 10, 2003 ruling granted Payton rescission of her loan and rejected defendants Page 3 Ocwen and USB's contention in their joint memoranda opposing Payton's motion that refinancing of her loan precluded rescission as a remedy under TIL A. This ruling also determined that Ocwen was merely a servicer of the loan, and therefore immune from liability under TTLA, and that TRA required the imposition of attorneys" fees against USB. Finally, this court ruled that TILA did not allow the imposition of statutory damages against USB.

  ANALYSIS

  "In enacting the Truth in Lending Act, Congress contemplated that the statute would be enforced by private litigants acting as `private attorneys general.'" Hobson v. Lincoln Ins. Agency. Inc., No. 99 C 5619, 2002 WL 338161, at *2 (N.D. Ill. Mar. 4, 2002). "Upon proper proof, a court should award attorney's fees to a prevailing plaintiff sufficient to vindicate Congress' intent in this regard." Id. (citing cases). TILA specifically provides: "in the case of any successful action . . . in which a person is determined to have a right of rescission . . . the costs of the action, together with a reasonable attorney's fee as determined by the court [is available]." 15 U.S.C. § 1640(a)(3).

  Twenty years ago, the Supreme Court set forth the two-step approach for district courts to use in determining a reasonable attorneys' fee award. Hensley v. Eckerhart, 461 U.S. 424, 433-35 (1983). First, the Court explained that 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," commonly referred to as the lodestar amount. Id. at 433. Second, considering numerous factors, many of which ARB subsumed within the initial lodestar calculation, this court may adjust the fee upward or downward. Id. at 434.

  I. The Lodestar Analysis

  The Seventh Circuit has stated that "[t]he reasonable hourly rate (or `market rate') for Page 4 lodestar purposes is `the rate that lawyers of similar ability and experience in their community normally charge their paying clients for the type of work in question."' Harper v. City of Chicago Heights, 223 F.3d 593, 604 (7th Cir. 2000) (quoting Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 555 (7th Cir. 1999)). Payton has the burden of proving the market rates for her attorneys, Edelman, Combs & Lattuner, LLC ("ECL"). Id. at 604-05. Evidence of the "market rate" includes rates other attorneys in the ARB a charge paying clients for similar work, fee awards from prior cases, the attorney's credentials, and the attorney's actual billing rate. See People Who CARB v. Rockford Bd. Of Educ., Sch. Dist. No. 205, 90 F.3d 1307, 1311-13 (7th Cir. 1996). In addition, an attorney's affidavit alone cannot establish his or her market rate; however, such affidavit "in conjunction with other evidence of the rates charged by comparable lawyers is sufficient to satisfy the plaintiff['s] burden." Harper, 223 F.3d at 604. Once a party establishes his or her attorneys' market rates with evidence, the opposing party must demonstrate why a lower rate should be awarded. People Who Care, 90 F.3d at 1313.

  Payton only asserts fee awards from prior cases as evidence of the rates claimed by ECL. Concerning the hourly rates claimed by ECL, USB's only objection is that while Daniel A. Edelman and Michelle Teggelaar request $400 and $225 per hour respectively for their services, previous courts have only approved $360 and $200 per hour respectively. USB makes no other objection regarding the per hour rates claimed by ECL or the number of hours expended by ECL.

  The most recent case cited by Payton awards ECL $360 per hour for partners, $310 per hour for junior partners and $200 per hour for senior associates. See Johnson v. Fast Cash Advance, Inc., 00 C 1875 (N.D. Ill. Mar. 6, 2003). Payton argues, however, that the rates of $400 requested by Edelman (described as a partner and 1976 law school graduate in his own affidavit attached to the Page 5 fee petition) and $225 requested by Teggelaar (described as an associate and 1997 law school graduate in Edelman's affidavit attached to the fee petition) ARB reasonable because the ruling in Fast Cash Advance, Inc. by Judge Lefkow concerned work done from 2000 through October of 2002, and that counsels' fees have been raised according to annual adjustments for inflation. In support Payton cites Covington v. District of Columbia, 839 F. Supp. 894 (D.D.C. 1993) where Judge Lamberth found that it was appropriate to have an annual increment of $ 10 per year for a lawyer's billing rate to account for inflation. This court will increase the rates allowed in Fast Cash Advance. Inc. by Judge Lefkow, the only evidence of ECL's billing rates, to adjust for one year of inflation. Therefore, this court will allow a rate of $370 for partners and $210 for the associate who worked on this case. USB does not object to the hourly rates claimed by ECL for its paralegals. Therefore, this court finds the ...

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.