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Omolewu v. Lakeview Loan Servicing, LLC

United States District Court, S.D. Ohio, Western Division

May 24, 2018

ELIZABETH A. OMOLEWU, Plaintiff,
v.
LAKEVIEW LOAN SERVICING, LLC, et al., Defendants.

          Walter H. Rice, District Judge

          REPORT AND RECOMMENDATIONS [1]

          Sharon L. Ovington United States Magistrate Judge

         At the 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 #99).

         In 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).

         Omolewu 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.

         Omolewu's 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 disallowing them.”).

         Building 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, explaining:

[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 omitted).

         Omolewu 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.

         Defendants maintain that § 2605(f)(3)'s reference to costs does not include attorney fees, but instead “plainly treats fees and costs as distinct ...


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