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Giampa v. Midfirst Bank

United States District Court, D. Nevada

June 18, 2019

VICTORIA GIAMPA, Plaintiff,
v.
MIDFIRST BANK; FANNIE MAE, FANNIE MAE AS TRUSTEE FOR SECURITIZED TRUST, FANNIE MAE REMIC PASSTHROUGH CERTIFICATES 2006-123 TRUST; COUNTRYWIDE SERVICING CORP., BANK OF AMERICA CORPORATION; BANK OF AMERICA. N.A., BAC HOME LOANS SERVICING, LP; RECONTRUST COMPANY, N.A.; GREEN TREE SERVICING, LLC; DITECH FINANCIAL, LLC; MORTGAGE ELECTRONIC REGISTRATION SYSTEM, ("MERS"); NATIONAL DEFAULT SERVICING CORPORATION; AND DOES 1 THROUGH 100 INCLUSIVE, et al., Defendants.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE.

         I. SUMMARY

         Pending in this closed action is Defendants Green Tree Servicing LLC, [1] Ditech Financial LLC and Mortgage Electronic Registration System's (“MERS”) (collectively “Judgment Defendants”) motion for an award of attorneys' fees and costs alleged to have been incurred in this action (“Motion”).[2] (ECF No. 69.) Plaintiff Victoria Giampa has not filed a response. For the reasons stated below, the Court will grant the Motion in part and deny it in part.

         II. BACKGROUND

         This action concerned the foreclosure of real property located at 1848 Wellington Court, Henderson, Nevada 89014 (“Property”). (ECF No. 1.) Plaintiff brought a total of fifteen federal and state law claims-including claims for quiet title, breach of contract, violations of Nevada statutes, civil conspiracy, fraud, and claims under the Racketeer Influenced and Corrupt Organizations Act (“RICO”). (Id.) Plaintiff's complaint totaled 73 pages. (Id.)

         On November 9, 2017, the Court entered its order and judgment in favor of Judgment Defendants and other named defendants on Plaintiff's claims. (ECF Nos. 67, 68.) The complaint was dismissed with prejudice in its entirety and the Court particularly found that “the primary legal theories advanced by Plaintiff are not cognizable . . . [and] that the complaint fails to state claims upon which relief may be granted.”[3] (ECF No. 67 at 4-5.)

         Judgment Defendants bring the Motion as prevailing parties under Fed.R.Civ.P. 54(d)(1)-(2), LR 54-14[4], 28 U.S.C. § 1927, NRS §§ 18.005, 18.010 and 18.020. (ECF No. 69 at 3, 7-8.)

         III. DISCUSSION

         Judgment Defendants contend they are entitled to attorneys' fees totaling $11, 086.81 and costs in the amount of $167.04. (See, e.g., ECF No. 69 at 12.)[5] In its discretion, the Court will award fees in an amount to be determined and costs in the amount sought.

         A. Fees and Costs under 28 U.S.C. § 1927

         Judgment Defendants indicate that fees and costs are justifiable pursuant to 28 U.S.C. § 1927. (ECF No. 69 at 3.) The Court disagrees. Section 1927 applies to situations where “[a]ny attorney . . . multiplies the proceedings in any case unreasonably and vexatiously” and requires the attorney to personally pay the excess fees and costs. See 28 U.S.C. § 1927. Judgment Defendants provide no evidence to support a vexatious finding. The Court therefore declines to order an award of fees and/or costs pursuant to § 1927.

         B. Award of Fees

         Fed. R. Civ. P. 54(d)(2) permits a prevailing party to move for attorneys' fees by providing the statute entitling the movant to the award. “[A]bsent statute or enforceable contract, litigants pay their own attorneys' fees.” Alyeska Pipeline Serv. Co v. Wilderness Soc'y, 421 U.S. 240, 257 (1975) (citations omitted). Aside from § 1927 under which the Court declines to award fees, Judgment Defendants cite no federal statute authorizing fees for their federal law claims. Accordingly, to the extent the Court awards fees-as found warranted below, the award pertains only to Judgment Defendants' state law claims.[6]

         “In an action where a district court is exercising its subject matter jurisdiction over a state law claim, so long as ‘state law does not run counter to a valid federal statute or rule of court, and usually it will not, state law . . . giving a right [to attorney's fees], which reflects a substantial policy of the state, should be followed.'” MRO Commc'ns, Inc. v. Am. Telephone & ...


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