United States District Court, D. Montana, Butte Division
Jeremiah C. Lynch United States Magistrate Judge.
the entry of final judgment in its favor, Defendant
CitiMortgage, Inc. moves to recover $296,569.87 in attorney
fees incurred in defending against Plaintiff Jonathon
Bertelsen's claims. CitiMortgage's motion is granted
to the extent set forth below.
commenced this action in state court in December 2015,
alleging breach of contract, violations of Montana's
Consumer Protection Act, and tort claims based on
CitiMortgage's alleged wrongful failure to modify the
terms of his home mortgage loan. Bertelson also sought
declaratory and injunctive relief prohibiting CitiMortgage
from foreclosing on his property. CitiMortgage removed the
case to this Court based on diversity jurisdiction, and
ultimately prevailed on summary judgment.
judgment was entered in CitiMortgage's favor on April 7,
2017, and CitiMortgage filed the pending motion for attorney
fees two weeks later, on April 21, 2017. CitiMortgage seeks
fees under Federal Rule of Civil Procedure 54, as authorized
by Mont. Code Ann. § 28-3-704 and the terms of the
promissory Note and Deed of Trust between the parties.
as here, federal jurisdiction is based on diversity of
citizenship, a motion for an award of attorney fees is
governed by federal procedural law and state substantive law.
See Mangold v. California Public Util. Comm 'n,
67 F.3d 1470, 1478 (9th Cir. 1995). The procedural
requirements applicable to a motion for attorney fees are set
forth in Fed. R. Civ. P. 54, which states that the motion
(i) be filed no later than 14 days after the entry of
judgment; (ii) specify the judgment and the statute, rule or
other grounds entitling the movant to the award; (iii) state
the amount sought or provide a fair estimate of it; and (iv)
disclose, if the court so orders, the terms of any agreement
about fees for the services for which the claim is made.
Fed. R Civ. P. 54(d)(2)(B).
follows the general American Rule, pursuant to which a
prevailing party is not entitled recover attorney fees unless
expressly provided for by statute or contract. Mountain
West Farm Bureau Mut. Ins. Co. v. Hall, 2001 Mt 115, 18
(Mont. 2001). When "one party to the contract...has an
express right to recover attorneys' fees from any other
party to the contract..., then in any action on the
contract...the prevailing party...is entitled to recover
reasonable attorneys' fees from the losing party or
parties." Mont. Code Ann. § 28-3-704. Where there
is a contractual provision for attorney fees, the right
created is reciprocal. See e.g. First Citizens Bank v.
Sullivan, 200 P.3d 39, 46 (Mont. 2008).
speaking, whether to award fees is within the discretion of
the court. In re Marraige of Szafryk, 232 P.3d 361,
365 (Mont. 2010). But when a contract "requires an award
of attorney's fees and the contract is
conscionable," the court "lacks discretion to deny
attorney's fees." Szafryk, 232 P.3d at 365.
See also In re Estate of Burrell, 245 P.3d 1106,
1111-1112 (Mont. 2010).
is no dispute that CitiMortgage has satisfied the procedural
requirements of Fed. R. Civ. P. 54(d)(2)(B). CitiMortgage
timely filed its motion on April 21, 2017 - within 14 days of
the final judgment entered on April 7, 2017. The motion
states the amount of attorney fees sought, and specifies that
CitiMortgage claims it is entitled to fees based on terms of
the Note and Deed of Trust between the parties.
Note signed by Bertelsen contains a provision for
"Payment of Note Holder's Costs and Expenses,"
which reads as follows:
If the Note Holder has required me to pay immediately in full
as described above, the Note Holder will have the right to be
paid back by me for all of its costs and expenses in
enforcing this Note to the extent not prohibited by
applicable law. Those ...