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Hamm v. Ameriquest Mortgage Co.

February 20, 2008

SARAH HAMM, PLAINTIFF,
v.
AMERIQUEST MORTGAGE COMPANY, DEFENDANT.



The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge

MEMORANDUM OPINION

This matter is before the court on Plaintiff Sarah Hamm's ("Hamm") petition for attorney's fees and costs ("Petition"). For the reasons stated below, we grant in part and deny in part the Petition.

BACKGROUND

Hamm alleges that on January 19, 2002, she obtained a mortgage loan from Defendant Ameriquest Mortgage Company ("Ameriquest") which was secured by a mortgage on her residence in Markam, Illinois. Hamm claims that she sought out the loan in order to pay off her credit cards, make home repairs, and pay off the loan on a family member's car. Hamm alleges that based upon her discussions with Ameriquest employees prior to the closing on the mortgage, Hamm believed that she was going to receive a fixed-rate loan, but that at the closing she discovered that she was receiving an adjustable rate loan that could have interest rates as high as 16.99%. Hamm also contends that the payment schedule for the loan payments was not adequately disclosed to her before closing. Hamm acknowledges that, despite her misgivings about the change in terms in the mortgage and the lack of clarity in the disclosures to her, Hamm signed all the closing documents. The closing documents included a Notice of Right to Cancel that informed Hamm of a three-day recission period during which she had a right to rescind the mortgage agreement. Hamm also signed a One Week Form that informed her of Ameriquest's policy of providing her with seven days to cancel the mortgage agreement. Hamm also signed a document that represented she had read and understood all the documents. Hamm claims that she was told at closing that she would receive a copy of the closing documents "in a couple of days" and that she received the documents two days after the closing. Hamm alleges that Ameriquest assigned her mortgage to Ameriquest Mortgage Securities, Inc., and the loan is being serviced by AMC Mortgage Services. Hamm brought the instant action seeking to have the mortgage rescinded based upon alleged deficiencies in the disclosures relating to her recission rights and the payment plan that were provided by Ameriquest in violation of the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601. On September 27, 2005, we granted Ameriquest's motion for summary judgment. Hamm appealed the ruling and on December 19, 2007, pursuant to the mandate of the Seventh Circuit, we entered judgment in favor of Hamm. Hamm now moves to recover attorney's fees and expenses pursuant to Federal Rule of Civil Procedure 54, Local Rule 54, and 15 U.S.C. § 1640(a)(3).

LEGAL STANDARD

Pursuant to 15 U.S.C. § 1640, any individual that violates certain portions of TILA, such as 15 U.S.C. § 1638(a)(6), is liable "in the case of any successful action to enforce the foregoing liability or in any action in which a person is determined to have a right of rescission under section 1635" for the sum of "the costs of the action, together with a reasonable attorney's fee as determined by the court. . . ." 15 U.S.C. § 1640(a)(3). Federal Rule of Civil Procedure 54 and Local Rules 54.1, 54.2, and 54.3 explain how a party may request attorney's fees and costs. Fed. R. Civ. P. 54; LR 54.1, 54.2, 54.3. A court should exclude from fee requests fees relating to "hours that were not 'reasonably expended' on the litigation." Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 550 (7th Cir. 1999)(quoting in part Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). For a TILA case, the proper amount of fees are calculated by multiplying the "'the number of hours reasonably expended on the litigation . . . by a reasonable hourly rate.'" Strange v. Monogram Credit Card Bank of Georgia, 129 F.3d 943, 945 (7th Cir. 1997)(quoting Hensley, 461 U.S. at 433). A party seeking the award of attorney's fees "bears the burden of proving the reasonableness of the hours worked and the hourly rates claimed." Spegon, 175 F.3d at 550. A court can also "increase or decrease the amount in light of the Hensley factors, which include the time and labor required, skill needed, amount involved and results obtained, time limitations imposed by the case, experience, and reputation and ability of the lawyers." Strange, 129 F.3d at 946.

DISCUSSION

Hamm seeks $86,582.00 in fees and $6,684.12 in expenses. (Pet. 1). Ameriquest objects to the fees and expenses sought by Hamm, arguing that some of the fees are not recoverable and that the fees are excessive.

I. Whether Fees are Reasonable

Ameriquest argues that the fee request is excessive since the hourly billing rates are above the market rate and Hamm's counsel devoted too many hours to certain appellate work.

A. Hourly Rates

Ameriquest contends that certain hourly rates included in the billings presented by Hamm are excessive. A party is entitled to recover fees based upon a "'reasonabl[e] hourly rate,'" which is "based on the 'market rate' for the services rendered." Spegon, 175 F.3d at 554 (quoting in part People Who Care v. Rockford Bd. of Educ., Sch. Dist. No. 205, 90 F.3d 1307, 1310 (7th Cir. 1996)). The movant bears the initial burden of showing the appropriate market rate, and "once the attorney provides evidence establishing his market rate, the burden shifts to the defendant to demonstrate why a lower rate should be awarded." Id. A market rate constitutes "'the rate that lawyers of similar ability and experience in the community normally charge their paying clients for the type of work in question.'" Id. (quoting Bankston v. Illinois, 60 F.3d 1249, 1256 (7th Cir. 1995)).

Ameriquest argues that the rate of $280 per hour billed by Hamm's counsel for the work of Albert F. Hofeld ("Hofeld"), who was admitted to practice in Illinois in 2001, is an excessive rate. Ameriquest also contends that the rates between $400-$550 an hour for certain senior partners at the law firm representing Hamm are excessive. Ameriquest bases its objection in part on the rates charged by its counsel, which Ameriquest contends are much lower rates. Ameriquest contends that the most experienced partners should be awarded fees at a rate from $275 to $360 an hour and the lesser experienced attorneys should be awarded fees at around $190 an hour. (Ans. 7).

Ameriquest correctly points out that the documents presented by Hamm's own counsel indicate that the billing rates sought in the Petition are above the market rate. Hamm has presented an affidavit from one of Hamm's counsel, Daniel A. Edelman ("Edelman"), indicating fees that have been awarded to counsel's firm in comparable cases. Such prior awards are a good indicator of the proper market rate. Spegon, 175 F.3d at 555. The affidavit of Edelman shows that in comparable cases, senior attorneys of the firm representing Hamm, referred to as the "5 principals" of the firm were not awarded fees in excess of $425 per hour and were usually awarded fees less than $400 per hour. ...


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