Minnesota Foreclosure Defense: Attorney's Fees Awarded to Homeowner

In a number of recent cases, Minnesota courts have ordered mortgage companies to cover attorney’s fees in Minnesota foreclosure defense cases. Three examples are below.
  1. MN Fourth Judicial District (Hilleshiem v. Source Lending Corp.)
  2. MN Fourth Judicial District (Pelayo v. Ruben Gonzalez and Modificaciones de Prestamos)

Wiley v. A & K Auto Sales

Case 0:06-cv-04611-DWF-AJB Document 64 Filed 03/05/10

Tomeka Wiley,



A & K Auto Sales; Jamal A. Al-Awamie; Scott and Gloria Marina Englund
d/b/a Twin City Environments, an assumed name; and Scott Englund, individually,

Defendants. _____________________________________

Civil No. 06-4611 (DWF/AJB)


Civil No. 07-1347 (DWF/AJB)

Kristal Johnson,



Scott and Gloria Marina Englund d/b/a Twin City Environments, an assumed name; Scott Englund d/b/a TCE CARS, an assumed name;
Scott Englund, individually; A & K Auto Sales; and Jamal A. Al-Awamie,


Defendants. ________________________________________________________________________

Nicholas P. Slade, Esq., Barry & Slade, LLC, counsel for Plaintiffs Tomeka Wiley and Kristal Johnson.

Benjamin E. Myers, Esq., Dejvongsa Myers & Associates, LLC, former counsel of record for Defendants A & K Auto Sales, and Jamal A. Al-Awamie.

Geoffrey R. Colosi, Esq., Colosi & Associates LLC, counsel for Defendants Scott and Gloria Marina Englund. _______________________________________________________________________

This matter is before the Court on motions for attorney fees and costs brought by Plaintiff Tomeka Wiley in Case No. 06-4611 (DWF/AJB) and by Kristal Johnson in Case No. 07-1347 (DWF/AJB) (together, Plaintiffs).1

These actions involve claims by Plaintiffs against Scott Englund for violations of the Truth in Lending Act (15 U.S.C. § 1601, et seq.) (“TILA”), violations of the Minnesota Motor Vehicle Retail Installment Sales Act (Minn. Stat. § 53C.01, et seq.), violations of the Consumer Fraud Act, wrongful repossession, and conversion. Plaintiffs also asserted claims against A&K Auto Sales and Jamal A. Al-Awamie for violations of the State Odometer Act, violations of the Consumer Fraud Act, fraudulent misrepresentation, and breach of express warranty. In two separate orders dated December 15, 2008, the Court granted summary judgment in favor of Plaintiffs on liability as to Scott Englund, A&K Auto Sales, and Al-Awamie. (Doc. No. 45 in Case No. 06-4611 (DWF/AJB); Doc. No. 35 in Case No. 07-1347 (DWF/AJB).) The Court also concluded that Scott Englund, A & K Auto Sales, and Jamal A. Al-Awamie were liable to Wiley for actual damages in the amount of $2,000 and to Johnson for actual damages in the amount of $700. In addition, the Court concluded that Scott Englund was liable to Wiley for damages under TILA in the amount of $2,400 and to Johnson in the amount of $2,600.

Plaintiffs now move for attorney fees in the amount of $31,867.50 and costs in the amount of $1,842.65 under TILA. A person who is successful in an action to enforce the provisions of TILA is entitled to “the costs of the action, together with a reasonable attorney’s fee as determined by the court.” 15 U.S.C. § 1640(a)(3). Because Plaintiffs move for attorney fees under TILA, the motions apply only to Defendant Scott Englund.2 Scott Englund does not dispute that Plaintiffs are entitled to attorney fees under TILA but rather asserts that Plaintiffs’ request is excessive and unsupported by the record.

In calculating reasonable attorney fees, the Court begins by calculating the “lodestar”-the product of the number of hours reasonably expended on the litigation and the reasonable hourly rate at which those hours should be billed. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The reasonableness of a fee depends upon a number of factors, including “the plaintiff’s overall success; the necessity and usefulness of the plaintiff’s activity in the particular matter for which fees are requested; and the efficiency with which the plaintiff’s attorneys conducted that activity.” Jenkins v. Missouri, 127 F. 3d 709, 718 (8th Cir. 1997). The Court may consider other factors in calculating the lodestar, including:

  1. the time and labor required;
  2. the novelty and difficulty of the questions;
  3. the skill required to perform the legal service;
  4. the preclusion of employment by the attorney due to acceptance of the case;
  5. the customary fee;
  6. whether the fee is fixed or contingent;
  7. time limitations;
  8. the amount involved and the results obtained;
  9. the experience, reputation, and ability of the attorneys;
  10. the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Hensley, 461 U.S. at 430 n.3. “Where the documentation of hours is inadequate, the district court may reduce the award accordingly.” Id. at 433.

In this case, Plaintiffs contend that their attorney spent more than ninety-one hours3 on their cases at hourly rates ranging from $350 per hour for work performed in 2007 through 2008 to $400 per hour for work performed thereafter. Plaintiffs contend that the total amount of fees is $31,867.50. Scott Englund contends that this request overreaches and that Plaintiffs’ attorney spent too much time on the cases and that at most twelve hours of time should have been spent on litigating the TILA claim. Scott Englund also asserts that the fee request is excessive in proportion to the services rendered and results achieved, that the hourly rate is unreasonable, and that the remaining Hensley factors weigh in favor of reduction of Plaintiffs’ fee request.

First, the Court determines that the hourly rate charged by Plaintiffs’ counsel, while on the high side, is reasonable in light of Plaintiffs’ attorney’s experience and practice in the area of consumer rights law. (Slade Aff. ¶ 2.)

Second, the Court considers the amount of hours submitted by Plaintiffs’ attorney.4 Plaintiffs Wiley and Johnson initiated these cases in November 2006 and

February 2007, respectively. The cases related to the financing of the purchase of motor vehicles. Both Plaintiffs brought claims under various consumer protection laws and asserted various claims against Scott Englund, including claims asserting violations of TILA.5 Both Plaintiffs sought statutory and actual damages. Both actions involved, without limitation, written discovery, the deposition of Scott Englund, scheduling conferences, a status conference, the preparation and filing of trial materials, and the preparation and argument of summary judgment motions. The Court granted summary judgment in favor of both Plaintiffs on December 15, 2008. Based on the record before it and the factors identified above, the Court finds that the expenditure of ninety-one hours on these two cases over the course of more than two years appears reasonable. However, the Court notes that the present motion for attorney fees is based only on Plaintiffs’ successful TILA claims, which were only asserted against Scott Englund and not Defendants A&K Auto Sales and Al-Awamie. Plaintiffs’ attorney’s time records show significant time spent litigating Plaintiffs’ claims against Defendants A&K Auto Sales and Al-Awamie. The claims against A&K Auto Sales and Al-Awamie, however, did not include a TILA claim. Moreover, Plaintiffs failed to separate out the fees that applied to claims asserted solely against Defendants A&K Auto Sales and Jamal Al-Awamie. The Court concludes that it would be unreasonable to require Scott Englund to pay attorney fees associated with the litigation of non-TILA claims asserted against A&K Auto Sales and Al-Awamie. After reviewing the time reports, the Court finds that $12,000 is a reasonable amount of attorney fees for litigating the TILA claims against Scott Englund.

Plaintiffs also seek costs in the amount of $1,842.65. (Slade Aff. ¶ 9.) Plaintiffs, however, do not provide any specific breakdown of their costs, nor do they differentiate between the costs associated with the claims against Englund versus the non-TILA claims against A&K Auto Sales and Al-Awamie. The Court therefore declines to award costs.


Based on the files, records, and proceedings herein, IT IS ORDERED that:

1. Plaintiffs’ Motion for Attorney Fees (Doc. No. [56] in Case No. 06-4611 (DWF/AJB) and Doc. No. [46] in Case No. 07-1347 (DWF/AJB)) is GRANTED IN PART and DENIED IN PART.

2. Defendant Englund shall pay attorney fees in the amount of $12,000 to Plaintiffs’ attorney.

Dated: March 5, 2010 s/Donovan W. Frank DONOVAN W. FRANK

United States District Judge

1 Plaintiffs were represented by the same attorney, who asserts that both matterswere largely handled jointly due to their similarity.

2 Plaintiffs did not assert claims under TILA against Defendants A&K Auto Sales and Al-Awamie. Further, summary judgment was not granted with respect to Defendant Gloria Marina Englund.

3 This amount reflects seventy-five hours spent on Johnson’s case and sixteen hours spent on Wiley’s case. (Aff. of Nicholas P. Slade (“Slade Aff.”) ¶¶ 7-8.) Counsel for Plaintiffs explains that unless a time entry pertained solely to Johnson, the time was billed only once to the Wiley matter.

4 As an initial matter, the Court notes that there is a discrepancy between the amount of fees requested and the amounts reflected in the exhibits attached to the Affidavit of Nicholas P. Slade. The attached exhibits show a total fee of $27,756.67 for ninety-one hours spent on the two cases. (Slade Aff. ¶¶ 7-8, Exs. 1 & 2.)

5 Scott Englund claims that Plaintiffs only prevailed on two claims and that the remaining four were without merit. However, Scott Englund also acknowledges that he did not oppose liability as to any of Plaintiffs’ claims on summary judgment. Therefore, the Court cannot conclude that any of the claims were without merit.