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HDMF-II, LLC v. Falcinelli

2005 WL 2179381 (N.J. Super. Ch. Div. 2005) (Unpublished)

FORECLOSURE; ATTORNEYS FEES—A court has no flexibility or power to award attorneys fees in foreclosure matters above that provided by the Rules of Court.

Following a successful foreclosure procedure, the mortgagee sought an award of additional attorney’s fees incurred during the foreclosure action. It appeared that the mortgagor filed a meritless answer to the foreclosure complaint and never disputed the validity of the mortgage or that the note and mortgage were in default. The actual amount of attorney’s fees was significantly higher than that allowed under court Rule 4:42-9(4). The Court rejected the application, finding that the stringencies of the Rule were “well-documented.” Referring to earlier case law, it cited the following text: “From the outset in New Jersey, following English precedents, the allowance of costs and counsel fees had been uniformly considered by the courts of this State to be a matter of procedure rather than of substantive law.” Other earlier cases concluded that because of the Rule’s “‘unmistakable rigidity,’ the court had no discretion to upwardly adjust attorney’s fees for equitable reasons.” It held that “[t]he only point at which the court is given discretion is when the amount reached pursuant to the formula [in the Rule] exceeds the cap.” It recognized that the allegations of frivolous conduct by the mortgage might have been true, but pointed out that “this is not an uncommon scenario in foreclosure actions. So far, the legislature has not allowed recovery for excess attorney’s fees or of that which is allowed under [the Rule] for the reasons given by the [mortgagor].” According to the Court, if a mortgagor were made to pay attorney’s fees in excess of that provided by the Rule “for filing a contesting answer, which the court declares to be uncontesting, it might send a chilling message to future defendants arguing against foreclosure.” According to the Court, that would be contrary to the goals of the legislature.


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