Defense Recovery of Attorney Fees and Discovery of Opposing Counsel’s Billing Records

“Unreasonable Prosecution of a Case”

“The litigant who takes aggressive but thrifty steps that drive up the fees of his or her opponent must not be able to hang a hat defensively upon his own attorneys’ budget conscious approach…. a litigant may exercise its business judgment ‘to go to the mat’ but it must also recognize that a ‘day of reckoning’ would come should it lose.” Florida Bar Journal/ June 2017 p. 17.
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In the attached article from the Florida Bar Journal (June 2017) Jason S Lambert and D Michael Arundel present the issues arising out of the discovery of opposing counsel’s billing records — after entitlement to attorneys fees has been established. Under the strong of cases starting with the Alexander case there is some doubt as to whether the Plaintiff and Defendant will be treated equally.

That ruling basically said that if Plaintiff fails to prove standing or otherwise any real connection withe the subject loan then such a Plaintiff is not party to the alleged loan contract and therefore cannot be sued under the loan contract for recovery of attorney fees. But if such a Plaintiff wins, then the Plaintiff is entitled to attorney fees. In several pending cases I am assuming that the Court will agree, in one form or another, that we are (a) entitled to fees and (b) that the fees began to accrue whenever the note was filed because at that point in time the Plaintiff demonstrated that it was party to the loan contract.
My own view is harshly different, to wit: if a party files a lawsuit claiming that it can foreclose someone’s house based upon a contract that either (a) does not exist or (b) doesn’t include the Plaintiff, the Plaintiff should be stopped from denying application of the attorney fees provision of that loan contract. Any other ruling gives the false trustees and false servicers complete leeway to take their chances, submitting the defendants to huge expenses, stress and uncertainty without any direct consequences for doing so.
The problem we face in the award of fees is that the amount we are seeking looks outsized, especially compared to the fees sought by opposing counsel. Thus it would seem that revealing the billing of opposing counsel would work against us. But there is a different interpretation that might help us with the following narrative, as I have stated it in one case:
The case could have been resolved long ago, since it was obvious that the Plaintiff
  • (a) did not have the note at the time of the filing of the complaint and
  • (b) Plaintiff was relying upon ownership of the note and mortgage by the putative trust based upon incomplete records, to wit: Plaintiff was lacking a mortgage loan schedule that was not attached to the Trust Instrument (Pooling and Servicing Agreement) and was in the hands of a putative third party who was never identified as a party to the transaction nor as any witness disclosed who could testify for the alleged third party and
  • (c) the alleged servicer (Ocwen) was relying for its authority upon a void Power of Attorney from Chase Bank who was never in the chain of title or otherwise mentioned in any of the documents in or out of litigation (in fact the sole witness for Plaintiff refused to testify about Chase Bank’s relationship to the subject loan).
Instead Plaintiff submitted to defense counsel and filed with this Court 5 different “Assignments of Mortgage” each of which varied from the narrative presented in discovery and at trial. Plaintiff  abandoned all 5 assignments although they were disclosed as exhibits for trial.
The confusion raised by the Plaintiff was a smoke screen requiring the Defendants to prepare for multiple scenarios at trial and to carefully prepare for objections and cross examination while being aware that the Plaintiff could and would form disjointed narratives at trial. This was unexpectedly revealed when during three meditation attempts it was apparent that counsel was at best “confused” as to the identity of its client. That alone caused yet another expenditure of time and money in which the primary object was to identify the creditor in the subject loan, which to this date has still never been revealed.
It was the constant and persistent moving of the goal post by Plaintiff that caused so much time to be expended by Defense Counsel in this case. Defense counsel essentially was required to prepare for multiple possible trial scenarios all of which were possible, and some of which were eliminated by objections from Defense counsel at trial.
Hence it was the unreasonable persistence of counsel for the putative Plaintiff (who previously strongly asserted that they only represented Ocwen servicing, a non-party whose only “authority” came from a Power of Attorney from a party who had no power or authority to appoint Ocwen to the position of servicer.
While the court relied upon the lack of standing as the reason for the judgment against Plaintiff, there were clearly other grounds for the same result — Judgment for the Defendants. All the grounds were well known to counsel for the putative Plaintiff who probably only represented Ocwen in its pitch to cause the foreclosure in the name of a Trust and Trustee where the loan was never owned by the Trust.
The bottom line of the attached article is that the billing records of opposing counsel are discoverable and relevant, but should not be given too much weight when the court admits the evidence of reasonable fees sought by the prevailing party. See Paton versus GEICO Gen. insurance Company, 190 SO 3d. 1047 (Fla. 2016)
But it is the subtext of the article in which I find court doctrine that may assist us in reaching for much higher fee awards than are currently in vogue. There are repeated references in the article and the cases cited to “unreasonable prosecution (or defense) of the action”. As stated above, there was no right justification or excuse for counsel to have prosecuted a case for the putative Plaintiff. By deftly moving the goal post multiple times, the clear strategy was to wear out defense counsel and to bankrupt the Defendants who had limited funds (as opposed to the unlimited funds available to counsel for the putative Plaintiff.
This is a sword that cuts both ways. One way decreases the fees sought by the prevailing party by reference to opposing counsels fees and the other way is to sustain the number of hours billed and the hourly fees which required deep knowledge of the securitization of debt and industry practices to be applied to each variable that was tossed into the ring by counsel for the putative plaintiff.
The first way is that the court could substantially cut the amount of fees sought by the prevailing party under the final judgment, is to take into consideration the relatively meager amount of time billed by counsel for the putative Plaintiff.
But I think the article and the cases cited can be used to justify seemingly outsized time and fees. It often happens that when compared to other cases, the fees we are seeking are very high. In fact, we could admit that compared to any (or many) other case we have ever tried, the fees and time are considerably beyond what we have billed in another foreclosure case against a putative Plaintiff.
This is true even where the named Plaintiff was the same named “Trustee” as in the case at bar and where the judgments entered found lack of standing and lack of ownership and dubious testimony and exhibits — just like the case at bar. The issue of whether the named Plaintiff or the named servicer were actually owner and servicer, respectively has always been the base narrative for defense of claims by “U.S. Bank, as trustee”. The difference here is that even where the other cases consisted of unreasonable prosecution of a bogus case, the issues did not change every few months.
Hence the time spent by counsel for the putative Plaintiff could serve as the base for the award of fees to the Defendants and then multiplied by the continuous realignment of parties and issues used to cloud the reality that there was no trust that was ever filed that was complete, there was no trust that ever owned the subject loan, there was no standing, the named trust thus had no right to administer the subject loan and the servicer was deriving its power not from the trust but from Chase Bank, which was a complete stranger to the subject loan, and a complete stranger to the litigation.

5 Responses

  1. Soon we r about to feel settled life is about to run on control WFB ripped off our peace shredded in pieces

  2. No discovery produced 2 1/2 years into, 2nd Foreclosure now sold to new servicer and new lawyers? The robo witness will have no personal knowledge why bother with this?

  3. Servicers are debt collectors. No valid validation of debt ever comes.

  4. Homes stolen lives destroyed under color of law. Maybe the masses and lawyers need to get familiar w this concept and our Constitution.

  5. What about payments made to an unauthorized servicer?

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