United States District Court, S.D. Ohio, Western Division
ELIZABETH A. OMOLEWU, Plaintiff,
LAKEVIEW LOAN SERVICING, LLC, et al., Defendants.
H. Rice, District Judge
REPORT AND RECOMMENDATIONS 
L. Ovington United States Magistrate Judge
start of this case, Plaintiff Elizabeth A. Omolewu claimed
that two home-mortgage servicers, Defendants Lakeview Loan
Servicing, LLC and Cenlar FSB, FC-236, violated her rights
under the Real Estate Settlement Procedures Act (RESPA), 12
U.S.C. §§ 2605, et seq., and related
regulations. In an Amended Complaint, Omolewu boiled her
claims down to a single Count under RESPA. Her requested
relief states, in part, “F. Award Ms. Omolewu the costs
of litigation, including filing fees and costs. G. Award Ms.
Omolewu her attorney fees.” (Doc. #6, PageID
response to Omolewu's Amended Complaint, Defendants filed
a Joint Motion to Dismiss under Fed.R.Civ.P. 12(b)(6). Before
this Joint Motion became fully briefed, Defendants extended
an offer of judgment to Omolewu. The offer, through an email
sent by Defendants' counsel, stated:
Lakeview and Cenlar have just authorized me to make a Rule 68
offer of judgment in this matter in the amount of $10,
000.00. If your client accepts, we will file an agreed
judgment entry reflecting the judgment in the amount of 10k
in favor of Ms. Omolewu.
(Doc.#28, PageID #208).
accepted Defendants' offer of judgment, and the Court
directed the Clerk to enter judgment in favor of Plaintiff,
“thus terminating the captioned cause upon the docket
records of the United States District Court for the Southern
District of Ohio.” (Doc. #29). The judgment ended the
litigation except for Omolewu's post-judgment, and
presently pending, Motion for Attorney Fees (Doc. #31),
Defendants' Memorandum in Opposition (Doc. #33), and
Omolewu's Reply (Doc. #34). Omolewu asks the Court to
award her reasonable attorney fees totaling $32, 937.00.
acceptance of Defendants' offer of judgment entitles her
to recover her “costs.” See Rule 68(a);
see also Marek v. Chesny, 473 U.S. 1, 5, 105 S.Ct.
3012 (1985) (emphasis added in Marek). “It is
immaterial whether the [Rule 68] offer recites that costs are
included, whether it specifies the amount the defendant is
allowing for costs, or, for that matter, whether it refers to
costs at all.” McCain v. Detroit II Auto Finance
Center, 378 F.3d 561, 564 (6th Cir. 2004) (quoting
Marek, 473 U.S. at 6, 105 S.Ct. 3012). Consequently,
although Defendants' Rule 68 offer did not include the
word “costs” or refer to costs, Omolewu is
entitled to recover her costs. See McCain, 378 F.3d
at 564 (“[Appellee's] silence on the subject of
costs in its Rule 68 offer means that true costs are
recoverable by McCain, so that the district court erred in
on this foundation, Omolewu seeks an award of attorney fees
as part of a Rule 68 award of costs. Here, she encounters a
linguistic snag: “Rule 68 itself speaks only of
‘costs' as such and not in terms of
‘attorney's fees'….” Id.
(citing Marek, 473 U.S. at 9, 105 S.Ct. 3012). This
omission forces Omolewu to locate a different mine in which
to dig for attorney fees to include in an award of Rule 68
“costs.” Marek addressed this situation,
[T]he term “costs” in Rule 68 was intended to
refer to all costs properly awardable under the relevant
substantive statute or other authority. In other words, all
costs properly awardable in an action are to be considered
within the scope of Rule 68 “costs.” Thus, absent
congressional expressions to the contrary, where the
underlying statute defines “costs” to include
attorney's fees, we are satisfied such fees are to be
included as costs for purposes of Rule 68.
Marek, 473 U.S. at 9, 105 S.Ct. 3012. (citations
correctly mines RESPA for attorney fees as the relevant and
underlying substantive statute in this case. She contends
that RESPA-specifically, 12 U.S.C. § 2605(f)(3)-provides
for costs that include attorney fees.
maintain that § 2605(f)(3)'s reference to costs does
not include attorney fees, but instead “plainly treats
fees and costs as distinct ...