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Childress v. Bank of America, N.A.

United States District Court, D. Kansas

October 10, 2014

CHARLES R. CHILDRESS and MICHELLE E. CHILDRESS, Plaintiffs,
v.
BANK OF AMERICA, N.A., et al., Defendants.

MEMORANDUM AND ORDER

CARLOS MURGUIA, District Judge.

Plaintiffs Charles R. and Michelle E. Childress brought this action, pro se, claiming that defendants improperly foreclosed on their property. The court dismissed the case under the Rooker-Feldman [1] doctrine. Now pending before the court is Defendant Bank of America, N.A.'s Motion for Award of Attorneys' Fees from Plaintiffs (Doc. 61). Defendant Bank of America, N.A. ("BANA") contends that plaintiffs' mortgage document provides that defendant BANA may recover attorney fees. Under that agreement, defendant BANA seeks $7, 858.00 in fees.

Section 22 of the mortgage agreement that plaintiffs executed with Countrywide Bank, FSB, provides, "Lender shall be entitled to collect all reasonable expenses incurred in pursuing the remedies provided in Section 22, including but not limited to reasonable attorneys' fees...." (Doc. 66-2 at 9.) Defendant BANA is Countrywide's successor, and Section 22's remedies include foreclosure.

Defendant BANA acknowledges that this action itself is not the actual foreclosure proceedings. But defendant was required to respond to this action to defend itself and the foreclosure judgment it received in state court. Therefore, defendant claims, it may recover attorney fees under the mortgage agreement in the instant action because this case is essentially an attempted continuation of the state foreclosure proceedings. Defendant cites this court's order of dismissal (Doc. 59), stating that plaintiffs' claims were "either [previously] decided by [the] state court in the foreclosure action or are inextricably intertwined with the state foreclosure proceedings." (Doc. 66 at 3.)

Plaintiffs do not directly dispute that the mortgage agreement provides for attorney fees under these circumstances. Instead, the substance of their response brief provides as follows:

Plaintiffs could not respond to the Motion for award of attorneys fees without having an itemized detailed description of what the fees [were] for. The motion had no hourly rate, no hours of time spent and no description of what the unreasonable fee was for.
The defendant's attorneys did nothing more than submit documents that had been created by someone else and submitted in the state court proceedings, claiming the Rooker-Feldman Act and claim to have spent hours of time on their document at an unjust and unreasonable rate.
Plaintiffs do not consent to the defendant's attorney's fees which are unjust, unreasonable and not affordable.

(Doc. 68 at 1.)

Plaintiffs then filed a separate memorandum in support of their opposition, which provides these additional statements:

Plaintiffs did not contact, contract, enquire or hire the defendant's attorneys. The Plaintiffs are in no way shape or form obligated to pay the attorneys fees for Bank of America. Jennifer Berhorst and law firm were hired by Bank of America and have already been paid by Bank of America as stated in Doc 66-2 - Affidavit of Jennifer Berhorst.
The defendants and their attorneys have made the Plaintiffs homeless by fraudulently taking their money, equity and their home. The Plaintiffs are not obligated and do not consent to the fees. Trying to save their home against the fraudulent actions of the defendant and their attorneys, Plaintiffs could barely afford to pay the filing fee for the suit or to pay for an attorney to represent them. Without the means to pay for their own attorney it is not possible for the Plaintiffs to pay for the defendant's attorney.

(Doc. 71 at 1-2.)

The court understands that plaintiffs did not hire defense counsel and may not have the funds to pay attorney fees. But this alone is not a reason to deny defendant BANA's motion. The mortgage agreement provides that the lender may recover attorney fees for pursuing its remedies for breach of contract-including foreclosure. This action was essentially a continuation of defendant BANA's foreclosure action. The fact that plaintiffs did not elect the correct forum to pursue their dispute (i.e., a state court appeal) does not change the fact that they ...


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