In re Allegretti
In re Allegretti
Opinion of the Court
1. Jurisdiction
The court has subject matter jurisdiction of this case under
2. Background
The relevant facts are drawn from the parties' papers and the court's docket.
The Allegrettis own property in Northbrook, Illinois, that serves as their principal residence. In 2007, they borrowed $207,000 from Webster Bank, executing a note in favor of the Bank. To secure repayment, they executed a mortgage granting the Bank a lien on the property. The note permits the Bank to recover all of its costs and expenses if the Allegrettis default, including "reasonable attorney's fees." The mortgage has a similar provision.
Some time after 2007 (it is unclear exactly when), the Allegrettis defaulted, and in 2013 the Bank brought an action against them in Illinois state court. The action alleged only a breach of the note. The Bank elected not to foreclose on the mortgage because it was a second mortgage. The Bank was initially represented by different counsel; current counsel first appeared for the Bank in July 2014.
The Bank aptly describes the action as "difficult and heavily litigated." (Bank Resp. at 2). The Allegrettis defended the action separately, as if the two of them were strangers rather than co-obligors on the same note. James answered the complaint (denying he had ever signed the note), raised affirmative defenses, and asserted a counterclaim under the Fair Credit Reporting Act.
Perhaps because of the affirmative defenses and counterclaim, the Bank spent considerable time on discovery in what would otherwise have been a straightforward contract action. In the midst of discovery, the Bank was also compelled to obtain an emergency restraining order against James to stop him from making harassing telephone calls and sending harassing emails to the Bank's president.
In December 2014, the Bank moved for partial summary judgment on its claim against Alicia. After briefing, the motion was granted. The state court entered a partial final judgment against Alicia in October 2015 and set the claim against James for trial. The Bank began its trial preparation. In December 2015, however, counsel for the Allegrettis withdrew, leaving them pro se. Days later, the Allegrettis filed the first of their two chapter 13 bankruptcy cases. The chapter 13 petition stayed the state court action against them.
The chapter 13 case lasted only about seven months, but it, too, was heavily litigated. In the course of the case, the Allegrettis submitted no fewer than five modified plans. All but one of the modified plans proposed to treat the Bank's secured claim as unsecured, presumably by stripping the Bank's lien on the theory that no equity supported it. The Bank filed written objections to each modified plan.
But nothing came of all this effort. In March 2016, the chapter 13 trustee had moved to dismiss the case on the ground of unreasonable delay prejudicial to creditors. See
In January 2017, the litigation in the state court resumed. The state court once again set the claim against James for trial, and in May the Bank resumed its trial preparations. On June 12, 2017, before the trial could take place, the Allegrettis filed a second chapter 13 case, the current one. The Bank filed a timely proof of claim asserting a total claim of $441,522.66. Of that amount, $93,735.68 consists of attorney's fees and costs due as of the petition date.
*291The Allegrettis have now objected to the claim on the ground that the Bank's fees and costs (they do not object to other aspects of the claim) are not supported with any sort of itemization and are unreasonable. In response, the Bank has submitted the affidavit of one its attorneys, Lauren Newman, and attached an itemization. Citing Harris Trust & Sav. Bank v. American Nat'l Bank & Trust Co. ,
3. Discussion
The objection will be overruled. Under the applicable law-federal law, not Illinois law-the Bank has supported adequately its request for attorney's fees and costs, and the Allegrettis have supplied no cognizable reason to reduce the amounts sought.
Both sides treat the reasonableness of the Bank's fees and costs as a question of Illinois law. If that were so, the kind of intensive scrutiny to which the Allegrettis subject the Bank's itemization would be necessary. Illinois standards for attorney's fee requests are exacting. See Metavante Corp. v. Emigrant Sav. Bank ,
But state law does not apply to requests for attorney's fees in federal court-including requests under contractual fee-shifting provisions. According to the Seventh Circuit, the standards for proving the reasonableness of attorney's fees are procedural, not substantive. See *292Metavante ,
The decisions reaching this conclusion all arise under federal diversity jurisdiction, see, e.g., Taco Bell ,
The Allegrettis argue that section 1322(e) of the Code expressly applies state law to a mortgage creditor's attorney's fees and costs. Section 1322(e) declares that the amount necessary under a chapter 13 plan to cure a default in payments on a secured claim "shall be determined in accordance with the underlying agreement and applicable nonbankruptcy law."
Section 1322(e) is no help to the Allegrettis, and their argument is actually a non-sequitur. The Allegrettis are right that the substantive nonbankruptcy law applicable here is Illinois law. Because Illinois allows the enforcement of contractual fee-shifting provisions, and because the Bank's note and mortgage only permit the recovery of "reasonable" fees and costs, section 1322(e) means the cure amount in the Allegrettis' plan-if the plan sought to cure their default to the Bank-would have to be reasonable.
Federal law assesses attorney's fees for "commercial reasonableness." Matthews v. Wisconsin Energy Corp. ,
The strongest evidence that fees are commercially reasonable is that the client paid them, especially when recovery was uncertain. Cintas Corp. v. Perry ,
The evidence in this case, what there is of it, demonstrates the commercial reasonableness of the Bank's attorney's fees and expenses. Most important, Ms. Newman's affidavit establishes that the Bank paid the fees. So these are not "pie-in-the sky numbers that one litigant seeks to collect from a stranger but would never dream of paying itself." Medcom ,
The total amount of $93,735.68 is also reasonable in relation to what was (and still is) at stake. Although the record does not disclose what the Allegrettis owed the Bank when the state court action began, the proof of claim in the current chapter 13 case shows that on the petition date the Bank was owed $333,795.59 in principal and interest, more than three times the Bank's fees and costs.
Those fees and costs are particularly reasonable given the Allegrettis' "litigation strategy." Medcom ,
Rather than address the question of commercial reasonableness, the Allegrettis attack particular entries in the Thompson Coburn itemization. They complain that too much time was spent on certain tasks (a motion for substitution of counsel, a response to a document request, the proof of claim in the chapter 13 case, specific court appearances), that some of the entries have vague descriptions of the work performed, and that others have the descriptions redacted. The Allegrettis go so far as to attach a revised version of the itemization reflecting what they contend would be reasonable fees.
*295The Allegrettis' approach entails the kind of close examination that federal law prohibits here. What the Allegrettis should have done was explain why, given an overview of the Bank's fees and costs, those fees and costs were not commercially reasonable. Because they have offered no such explanation, and because the Bank has shown that its attorney's fees and costs were in fact commercially reasonable, the Allegrettis' objection to the Bank's claim will be overruled.
4. Conclusion
The objection of debtors James and Alicia Allegretti to the claim of Webster Bank, N.A., is overruled. The claim is allowed in the amounts shown in the proof of claim. A separate order will be entered consistent with this opinion.
The court can take judicial notice of its own records. In re Sweports, Ltd. ,
Attorneys from Thompson Coburn LLP currently represent the Bank. The Bank's claim does not appear to include attorney's fees and costs paid to their predecessors.
The FCRA violation allegedly consisted of reporting his default to credit reporting agencies when in fact he had not signed the note and so could not have defaulted. Although James denied signing the note, he did not deny receiving $207,000 from the Bank, and in his papers here he admits he did. (Allegretti Reply at 2).
The Bank did not object to the Allegrettis' original plan, probably because the Bank did not learn of the case for more than a week after it was filed, and the Allegrettis submitted a modified plan well before the initial confirmation hearing.
Some decisions hold that an adversary proceeding is necessary to strip off a wholly unsecured junior lien in a chapter 13 case. See, e.g., In re Forrest ,
According to the Allegrettis, the failure to attach the itemization alone means the claim must be disallowed. Not so. See In re Guidry ,
The words "excessive" and "unnecessary" do not actually appear. The Allegrettis instead spit venom, calling the fees "staggering," "shocking," even "obscene." (Allegretti Reply at 6-7). They describe the Bank's preparation for depositions in the state court litigation as a "simply stunning waste of time and resources." (Id. at 6). And they accuse Ms. Newman of "truly obscene file churning" in the current chapter 13 case (although, as the Bank correctly points out, the current case is irrelevant to the claim objection). (Id. at 7). Rhetoric like this is not only unpersuasive, it is unprofessional. Counsel for both sides have been advised to lower the emotional temperature of their papers.
This, of course, assumes the validity of the initial premise-that the standards for evaluating attorney's fees are procedural. As the court observed in Landmark Am. Ins. Co. v. O'Malley , No.
The Allegrettis' plan does not in fact propose to treat the Bank's claim as secured and cure the default. Their plan would treat the Bank's claim as wholly unsecured, pay the Bank (along with all other general unsecured creditors) ten cents on the dollar, and discharge the rest of the claim. So it is hard to see what relevance section 1322(e) has to the Allegrettis' case.
Federal law would arguably apply even if the standards for evaluating attorney's fees sought under contractual fee-shifting provisions were considered substantive rather than procedural. Property interests in bankruptcy are "defined by state law"-"[u]nless some federal interest requires a different result." Butner v. United States ,
The itemization submitted gives the date and length of each communication and identifies the in-house attorney and Thompson Coburn attorney involved. The subject of the communication, however, has been redacted.
The Allegrettis assert that attorneys in a chapter 13 case are "normally subject to a 'flat fee' restriction of $4,000." (Allegretti Reply at 7). The term "restriction" is inaccurate. The bankruptcy court for this district permits counsel for a debtor in a chapter 13 case to receive a $4,000 flat fee without submitting the itemization of services that would otherwise be required under section 330 of the Bankruptcy Code,
Reference
- Full Case Name
- IN RE: James ALLEGRETTI and Alicia Allegretti, Debtors.
- Cited By
- 1 case
- Status
- Published