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Michele A. Spence v. Wells Fargo Bank

March 12, 2012

MICHELE A. SPENCE,
PLAINTIFF,
v.
WELLS FARGO BANK, N.A.,
DEFENDANT.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANT'S MOTION FOR ATTORNEY FEES (Document 34)

RELEVANT PROCEDURAL BACKGROUND

On October 22, 2010, Plaintiff Michele A. Spence ("Plaintiff"), appearing pro se, filed this action in the Fresno County Superior Court (Case No. 10-CE-CG-03734) alleging illegal conduct by Defendant Wells Fargo Bank, N.A. ("Defendant"). More specifically, the complaint alleged that Defendant improperly attempted to foreclose on Plaintiff's property. (Doc. 1.)

On November 4, 2010, Defendant removed the action to this Court. (Doc. 1.) Thereafter, on January 18, 2011, Defendant filed a Motion to Dismiss. (Doc. 10.) On April 18, 2011, the Honorable Oliver W. Wanger issued an order granting Defendant's Motion to Dismiss yet giving Plaintiff leave to file an amended complaint. (Doc. 20.) Plaintiff was ordered to file any amended complaint within thirty days of Judge Wanger's order, however, she failed to do so.

On July 29, 2011, Defendant filed a second Motion to Dismiss requesting that the case be dismissed due to Plaintiff's failure to file an amended complaint pursuant to the Court's order.*fn1

(Doc. 23). Plaintiff did not file an opposition to the Motion to Dismiss, nor did she file an amended complaint as previously directed.

On September 7, 2011, Plaintiff was ordered to file a form indicating whether or not she consented to Magistrate Judge jurisdiction. (Doc. 25.) Plaintiff also failed to respond to this order.*fn2

Thereafter, on October 19, 2011, the undersigned issued Findings and Recommendations, recommending that the action be dismissed for Plaintiff's failure to comply with a court order. (Doc. 30.)

On December 6, 2011, the Honorable Anthony W. Ishii issued an Order Adopting Findings and Recommendations, and judgment was entered accordingly. (See Docs. 31-32.)

On January 3, 2012, Defendant filed its Motion for An Award of Attorneys' Fees and a Request for Judicial Notice. (Docs. 34-35.) On January 27, 2012, Plaintiff filed an opposition to the motion. (Doc. 36 ["Plaintiff's Reply to Defendant's Motion for an Award of Attorneys Fees"].)

On February 7, 2012, the hearing was taken off calendar and the matter was deemed submitted pursuant to Local Rule 230(g). This Court now issues its findings and recommendations on the motion.*fn3

DISCUSSION*fn4

Defendant seeks an award of attorneys' fees totaling $16,648.50 as the prevailing party in this action and contends its request is reasonable. (Doc. 34.) In reply, Plaintiff asserts as follows: (1) that Defendant's motion is based upon an unenforceable contract; (2) that it is "[t]he 'American Way' . . . that each party in a legal action" be responsible for its own legal fees; (3) that "Congress enacted the 1853 fee bill to overcome the 'unequal, extravagant, and often oppressive system" and that "absent either statutory or judicial exception, the winning party in litigation can recover only the twenty dollar docket fee;" (4) that Defendant's fees are "excessive and unreasonable for such a simple matters;" and (5) that she is a "single parent . . . in the midst of a divorce, [and] is currently disabled and without any source of income." (Doc. 36.)

The Contract Provisions

Plaintiff borrowed $150,000.00 from Defendant in September 2004 and was secured by a Deed of Trust recorded against Lot 30 Tract 2294 Shaver Falls, Shaver Lake, California 93664. With regard to the agreement between the parties, the Fixed Rate Note dated September 24, 2004, provides at Section 9:

COLLECTION COSTS AND ATTORNEYS' FEES. If I am in default, and to the extent not prohibited by applicable law, I will pay the Bank's collection costs, attorneys' fees and other expenses of enforcing the ...


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