In a decision by the 5th Circuit Court of Appeals on Jan. 24, 2014, the Court determined that Wells Fargo Bank, N.A. could file a motion for attorney fees against the borrower, that had sued Wells Fargo in state court and lost. Richardson v. Wells Fargo Bank, N.A. Federal Home Loan Mortgage Corporation, Case No. 13-10002, 5th Cir. 2014.
Richardson borrowed $241,000 from Wells Fargo to refinance her Grapevine home in 2006. She defaulted on her mortgage. Wells Fargo offered her a forebearance plan, but she defaulted on that also, and Wells Fargo foreclosed on the property. Richardson then sued, bringing claims against Wells Fargo for the foreclosure and against Freddie Mac for attempts to evict her. She brought the case in state court originally, but Wells Fargo had it removed to federal court. The U.S. district court dismissed all of her claims on summary judgment.
After final judgment, Wells Fargo filed a motion for attorney fees and costs totalling $81,184.42, under FRCP 54(d)(2), which provides that claims for attorney's fees "must be made by motion unless the substantive law requires those fees to be proved as an element of damages." FRCP 54(d)(2)(A). The 5th Circuit, after analysis, concluded that motions for attorney's fees provided by contract are permissible under FRCP 54(d)(2).