Bank Had Requested To Recoup $1.3 Million In Fees.
Plaintiff in pro per attorney sued a well-known bank for breach of contract in connection with servicing his home mortgage. Bank obtained a summary judgment on some claims and lost a remaining claim at trial after more than 11 years of litigation. The trial judge later ruled that Plaintiff should pay Bank $744,204.50 in legal fees, which was a reduction from the requested $1.3 million in fees.
Plaintiff’s challenges to the fee award were rejected in Elstead v. JPMorgan Chase Bank, Case Nos. A140069/A141247 (1st Dist., Div. 2 Mar. 3, 2017) (unpublished).
First of all, plaintiff provided an inadequate record for review because the appellate record did not contain a transcript of the fee proceeding to show how the trial judge exercised his discretion. Plaintiff also failed to include his opposition papers and Bank’s reply papers. However, plaintiff’s arguments also failed on the merits. Under the Reynolds Metals reciprocity principle, Bank, as a successor nonsignatory, was still entitled to fees given that plaintiff would have been able to recover fees from Bank had he prevailed. Plaintiff made a technical argument that Bank waived a right to claim fees by not checking a box in its costs memorandum indicating it would be claiming fees; this one was rejected for a lack of prejudice—there was a filed fee motion which was brought and fully contested such that there were no due process concerns. With respect to the size of the fee award, the appellate court was “not unmindful” of this factor, but gave credence to the trial judge’s assessment that plaintiff used a classic “shotgun” litigation strategy, so he bore substantial responsibility and should have expected Bank would incur substantial fees. Here is the closing of the opinion before the Disposition section: “Regrettably, the court’s observations regarding [plaintiff’s] persistent, and ultimately wasteful, “shotgun” approach are equally apt to these appeals.” (Slip Op., at p. 37.)