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Lippner v. Deutsche Bank National Trust Co.

May 19, 2009

KELLIE LIPPNER, PLAINTIFF,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION

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

BACKGROUND

Lippner alleges that on June 25, 2004, she obtained a $161,000 mortgage loan (Loan) from Residential Mortgage Assistance Enterprise, LLC (Residential Mortgage), a mortgage assistance company, in order to refinance her prior existing loan obligations. The Loan was allegedly secured by Lippner's home in New Lenox, Illinois. Lippner further states that at some point during the life of the Loan, Defendant Litton Loan Servicing, L.P. (Litton) obtained a legal interest in the Loan and asserted a right to collect payment under the terms of the adjustable rate note (Note) that Lippner signed in connection with her Loan. Lippner also alleges that Defendant Deutsche Bank National Trust Co. (Deutsche) subsequently retained an interest in the Loan.

According to Lippner, at the closing of the Loan she was provided with a Truth in Lending Disclosure Statement (Disclosure Statement) and a Notice of Right to Cancel (NORTC). Lippner claims that the Disclosure Statement she received was incomplete in violation of Federal Reserve Board Regulation Z, 12 C.F.R. § 226 (Regulation Z), since it did not include a complete payment schedule. Lippner also alleges that she did not receive enough copies of the NORTC and that the copy she did receive was incomplete, also in violation of Regulation Z. Lippner alleges that the violations with respect to the Disclosure Statement and the NORTC extended the period of time in which she had a legal right to cancel the Note and rescind the Loan.

Lippner alleges that she exercised her right to cancel the Note within the extended time period. Defendants allegedly refused to acknowledge Lippner's loan cancellation, return the funds received, and void the security interest held in Lippner's property. Lippner brought the instant action to rescind the Loan and recover damages for alleged violations of the Truth in Lending Act, 15 U.S.C. § 1601, et seq. (TILA). Residential Mortgage, which was originally a defendant in the instant action, was voluntarily dismissed by Lippner after it filed for Chapter 11 Bankruptcy.

On February 26, 2008, in a memorandum opinion, we granted Litton's motion for summary judgment with respect to all claims, denied Deutsche's motion for summary judgment on liability with respect to all claims, and we granted summary judgment in favor of Lippner on liability with respect to Lippner's claims against Deutsche. We also found Deutsche liable for rescission of Lippner's mortgage loan secured by Lippner's residence, actual damages, and statutory damages under TILA. On September 9, 2008, we granted in part and denied in part Lippner's motion for summary judgment on the issue of damages. We subsequently denied Deutsche's motion for reconsideration. Lippner now brings the instant motion for fees and costs.

LEGAL STANDARD

Pursuant to 15 U.S.C. § 1640, any individual that violates certain portions of TILA, 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 is 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

In the instant Petition, Lippner seeks $33,310.00 in attorney's fees and $681.00 in costs. Deutsche contests both requests.

I. Request for Fees

Deutsche does not contest the fact that Lippner, as a prevailing party, may recover attorney's fees under TILA. However, Deutsche argues that the Petition is untimely. Deutsche also argues that even if Lippner's Petition was timely, the number of hours and hourly rate claimed by Lippner's attorney are not reasonable and are not properly supported. Finally, Deutsche suggests that any attorney's fee award should ...


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