United States District Court, D. New Hampshire
DiClerico, Jr. United States District Judge
Pike moves for an award of attorney's fees and costs
under Federal Rule of Civil Procedure 54(d). Pike seeks a
total of $89.66 in costs and $24, 988.75 in fees. Deutsche
Bank objects to Pike's request for attorney's fees.
Bank filed a notice of appeal on August 10, 2017, after
judgment was entered but before Pike filed her motion for
fees and costs. Generally, “the entry of a notice of
appeal divests the district court of jurisdiction to
adjudicate any matters related to [the] appeal.”
United States v. Martin, 520 F.3d 87, 97 (1st Cir.
2008) (internal quotation marks omitted). The issue of costs
and attorney's fees, however, is not related to the
appeal and may be decided despite the notice of appeal.
United States v. Hurley, 63 F.3d 1, 23 (1st Cir.
and Jennifer Pike were married in 2000. William bought
property at 34 Dogwood Lane, New London, New Hampshire, in
2001. In 2003, William obtained a loan from New Century
Mortgage Corporation that was secured by a mortgage on the
New London property. Although Jennifer's signature
appears on the mortgage document, she asserts that she did
not know about the loan or the mortgage and did not sign the
2004, William obtained a second mortgage loan, secured by the
New London property, from First Franklin Financial
Corporation. Jennifer did not sign the note or the mortgage.
The First Franklin mortgage was transferred by assignment to
Deutsche Bank on May 26, 2009.
Pikes were divorced on July 3, 2013. Under the terms of the
divorce decree, Jennifer was awarded the property with
certain other conditions. William transferred the property to
Jennifer by deed on July 26, 2013. Jennifer continues to live
at the property. As has been decided in this case, Deutsche
Bank's mortgage is subject to Jennifer's homestead
interest in the property.
seeks an award of costs and attorney's fees. In support
of her request for attorney's fees, Pike relies on RSA
361-C:2. Deutsche Bank does not object to Pike's request
for costs but contends that neither the attorney's fees
provision in the mortgage nor RSA 361-C:2 apply in this case.
54(d)(1) provides that unless federal law or a court order
states otherwise, a prevailing party is entitled to her costs
other than attorney's fees. Deutsche Bank does not
dispute that Pike is entitled to $89.66 in costs as she
also asserts that she is entitled to an award of
attorney's fees under RSA 361-C:2. RSA 361-C:2 provides
for an award of attorney's fees in an action, suit, or
proceeding to a “buyer, borrower or debtor” who
prevails in a suit against a “seller, lender or
creditor” if the “retail installment contract or
evidence of indebtedness” requires the “buyer,
borrower or debtor” to pay the attorney's fees of
the “seller, lender or creditor” under the same
circumstances. In other words, RSA 361-C:2 makes a mortgage
provision in favor of the mortgagee, the bank or lender,
reciprocal for the mortgagor, the borrower or debtor.
Therefore, application of the statute is limited to cases in
which a buyer, borrower, or debtor prevails against a seller,
lender, or creditor in a suit brought under a retail
installment contract, such as a mortgage, or evidence of
indebtedness, such as a loan note.
contends that a provision in the First Franklin mortgage
pertaining to attorney's fees, paragraph 25, triggers the
application of RSA 361-C:2 to ...