05-C-0454 Andrews v. Chevy Chase Bank FSB

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Consumer Protection
TILA; attorney fees

A defendant's offer to settle a TILA case does not negate a prevailing plaintiff's attorney fees.

"Defendant requests that I adjust the lodestar downward, but I decline to do so. Defendant contends that plaintiffs achieved less success than it appears because in 2005 defendant offered to settle the case by converting plaintiffs' adjustable rate mortgage to a thirty-year, five percent fixed rate mortgage plus $31,000 and $69,000 in attorney's fees. In awarding fees, it is appropriate to consider substantial settlement offers as a factor. Moriarty V. SVEC, 233 F.3d 955, 967 (7th Cir. 2000) (stating 'an offer is substantial if . . . the offered amount appears to be roughly equal to or more than the total damages recovered by the prevailing party.'). However, for several reasons, I cannot reasonably characterize defendant's offer as substantial. First, defendant made no formal offer under Rule 68 of the Federal Rules of Civil Procedure. Defendant's offer was designed to avoid setting a precedent, which other potentially aggrieved mortgagors could rely on either individually or as a class. And, in 2005, the possibility of class relief was still very real. For this reason alone, it was reasonable for plaintiffs to decline defendant's offer. In addition, defendant's offer was not substantial, both because it did not provide an amount roughly equal to the damages plaintiffs recovered and because it did not enable plaintiffs to rescind their mortgage, repair their credit and find a different lender."

05-C-0454 Andrews v. Chevy Chase Bank FSB

E.D.Wis., Adelman, J.