Deutsche Bank National Trust Company v. King-Johnson et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
DEUTSCHE 	BANK 	NATIONAL
TRUST COMPANY AS TRUSTEE FOR
THE 	GSAMP 	TRUST 	2006-S1,
MORTGAGE 	PASS-THROUGH
CERTIFICATES, 	SERIES 	2006-S1,
Plaintiff,
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v. 	Civil Action No. 3:23-cv-2697-L
SONJA 	RENEE 	KING-JOHNSON,
DAVID HAROLD JOHNSON, III, and
DESIREE L. RENEE JOHNSON,
Defendants.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff has filed a motion seeking attorney’s fees and costs (ECF No. 23).
For the following reasons, the District Judge should GRANT Plaintiff’s Motion in
part and award Plaintiff $4,208.40 in attorney’s fees and $709.00 in costs.
Background
Plaintiff was represented in this mortgage foreclosure action by the law firm
Mackie Wolf Zientz & Mann, P.C. (MWZM). On February 26, 2024, Plaintiff filed
its Motion for Default Judgment (ECF No. 12), to which Defendants did not
respond. On March 25, 2025, the Court granted Plaintiff’s Motion for Default
Judgment and awarded attorney’s fees and costs to be determined by subsequent
motion. See Mem. Op. and Order (ECF No. 21); Final Default J. at 2–3 (ECF No.
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22). On April 4, 2025, Plaintiff filed its motion for attorney’s fees and costs seeking
$5,260.50 in fees and $709.00 in costs—$5,969.50 in total. Mot. at 3, 9 ¶¶ 10, 28
(ECF No. 23). Defendants did not respond to the Motion, and the time to do so has
passed. The Motion is now ripe for determination.
Legal Standard and Analysis
I. Entitlement to Fees
Plaintiff moves for attorney’s fees under the terms of the note and security
instrument and under Federal Rule of Civil Procedure 54(d)(2). Under Rule 54, a
claim for attorney’s fees must be made by motion unless the substantive law
requires those fees to be proved at trial as an element of damages. Fed. R. Civ. P.
54(d)(2)(A). Rule 54 further provides that, unless a statute or court order provides
otherwise, a motion for attorney’s fees must:
(i) be filed no later than 14 days after the entry of judgment; (ii) specify
the judgment and the statute, rule, or other grounds entitling the
movant to the award; (iii) state the amount sought or provide a fair
estimate of it; and (iv) disclose, if the court so orders, the terms of any
agreement about fees for the services for which the claim is made.
Fed. R. Civ. P. 54(d)(2)(B). Texas law permits recovery of attorney’s fees under
mortgage contracts. See Richardson v. Wells Fargo Bank, N.A., 740 F.3d 1035,
1037–38 (5th Cir. 2014). And the Fifth Circuit has expressly endorsed Rule
54(d)(2) as a vehicle to obtain attorney’s fees provided for by a mortgage contract.
Id. at 1040.
Here, the security instrument provides that if default is not cured following
notice to the borrower, the lender “may collect [the lender’s] reasonable expenses
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incurred in seeking the remedies provided in this Section. These expenses may
include court costs, reasonable attorneys’ fees, and costs of title search[.]” Compl.,
Ex. B, at 15 (ECF No. 1-1). Moreover, the promissory note states:
If [the lender] require[s] [the borrower] to pay all that [he] owe[s] at
once, [the lender] will have the right to be paid back by [the borrower]
for all of [the] costs and expenses in enforcing this Note to the extent
not prohibited by applicable law. These expenses include, for example,
reasonable attorneys’ fees.
Compl., Ex. A, at 3 ¶ 11 (ECF No. 1-1).
Plaintiff initiated this litigation on December 7, 2023, seeking to foreclose
on the property due to Defendants’ default under the note. Compl. at 7, ¶ 21 (ECF
No. 1). Further, Plaintiff moved for default judgment, seeking a declaratory
judgment that Plaintiff “has standing and is authorized under the Security
Instrument to enforce the power of sale contained in the Security Instrument
through a non-judicial foreclosure of the real property which is subject of this
matter[.]” Mot. Default J. at 4, ¶ 14 (ECF No. 12).
Plaintiff is entitled to reasonable attorney’s fees under the note and security
instrument. See TFHSP, LLC Series 10147 v. U.S. Bank Nat’l Ass’n, 2016 WL
2856006, at *4 (N.D. Tex. Apr. 18, 2016) (Horan, J.) (concluding bank was entitled
to 	reasonable 	attorney’s 	fees 	under 	note 	and 	deed 	of 	trust 	where 	bank’s
“counterclaims and Motion for Default Judgment sought to enforce the [n]ote”),
adopted by 2016 WL 2853565 (N.D. Tex. May 13, 2016) (Lynn, J.), appeal
dismissed, 16-10723 (5th Cir. July 10, 2016).
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II. Lodestar Calculation
The Court uses the “lodestar” method to calculate reasonable attorney’s fees.
Id. The lodestar is calculated by multiplying the number of hours that an attorney
reasonably spent on the case by an appropriate hourly rate, which is the market
rate in the community for the work. See Smith & Fuller, P.A. v. Cooper Tire &
Rubber Co., 685 F.3d 486, 490 (5th Cir. 2012). The party seeking attorney’s fees
bears the burden of establishing the number of hours expended through the
presentation of adequately recorded time records as evidence. See Watkins v.
Fordice, 7 F.3d 453, 457 (5th Cir. 1993). The court uses this time as a benchmark
and 	excludes 	any 	time 	it 	deems 	excessive, 	duplicative, 	unnecessary, 	or
inadequately documented. See id. There is a strong presumption that the lodestar
figure is reasonable. Perdue v. Kenny A. ex rel., 559 U.S. 542, 552 (2010). Because
the lodestar is presumed reasonable, it should be modified only in exceptional
circumstances. Watkins, 7 F.3d at 457. The Court calculates the lodestar to be
$4,208.40 in this case.
A. Reasonableness of Rate
In support of the Motion, Plaintiff submitted the declaration of attorney
Crystal G. Gibson, a MWZM attorney, who declares that the amount billed by the
attorneys and paralegals in this matter is “similar to rates prevailing in the
community for similar services by lawyers and paralegals of comparable skill,
experience, and reputation.” Mot., Ex. A at 2, ¶ 7 (ECF No. 23-1) (declaration of
Crystal G. Gibson).
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Plaintiff also submitted the State Bar of Texas 2015 Hourly Fact Sheet and
State Bar of Texas 2020 Paralegal Compensation Survey as evidence of the hourly
rates for attorneys of comparable experience in North Texas. See generally Mot.,
Exs. B, C (ECF No. 23-1). The State Bar of Texas 2015 Hourly Fact Sheet indicates
that, in 2015, the median rate for creditor-debtor litigation attorneys in the Dallas-
Fort 	Worth 	area 	was 	$265.00 	per 	hour. 	Mot., 	Ex. 	B 	at 	9. 	The 	Paralegal
Compensation Survey indicates that the median rate for paralegals in Texas in
2019 was $123.00 per hour. Mot., Ex. C at 7 (ECF No. 23-1).
MWZM’s attorneys billed between $175.00 and $250.00 per hour, which is
below the median rate for attorneys of similar experience in the Dallas-Fort Worth
area, adjusted for inflation. Mot. at 4–5, ¶¶ 13–15 (ECF No. 23). And MWZM’s
paralegals billed between $85.00 and $95.00 per hour, which is below the median
rate for paralegals in Texas, adjusted for inflation. Id. at 6, ¶¶ 19–21. Plaintiff also
submitted MWZM’s billing invoices covering the period from July 2023 through
April 2025 that reflect that the professionals who worked on the matter billed at
their respective ordinary rates. See Mot., Ex. A-2 (ECF No. 23-1). Based on the
supporting materials accompanying Plaintiff’s motion, the Court finds that the
rates charged in this matter are reasonable and comport with prevailing rates in
the community.
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B. Reasonableness of Hours
From the billing invoices, it appears that the following professionals worked
on the case:
(1) 	senior attorney Crystal G. Gibson expended 2.90 hours at a
rate of $250.00 per hour;
(2) 	senior attorney Mark Cronenwett expended 0.40 hours at a
rate of $175.00 per hour;
(3) 	associate attorney Vivian Lopez expended 4.60 hours at a rate
of $175.00 per hour and 7.10 hours at a rate of $250.00 per
hour;
(4) 	paralegal Rebecca Lenehan expended 4.30 hours at a rate of
$85.00 per hour and 8.9 hours at a rate of $95.00 per hour;
and
(5) 	paralegal Susan Taplin expended 7.10 hours at a rate of
$95.00 per hour.
See Mot. at 4, 6, ¶¶ 13, 19 (ECF No. 23). Thus, MWZM expended 15.0 attorney
hours at rates between $175.00 and $250.00 per hour, and 20.3 paralegal hours at
rates between $85.00 per hour and $95.00 per hour. Id. Based on these sums,
Plaintiff asks for $3,375.00 in attorney’s fees and $1,885.50 in paralegal fees—
$5,260.50 in total. Id. However, because Plaintiff’s attorneys failed to exercise
billing judgment, the Court finds that the number of hours reflected in the billing
statements is unreasonable and recommends reducing the overall amount sought
by 20 percent, thus arriving at $4,208.40.
The burden to show reasonableness of the hours billed necessarily includes
the burden of proving the attorneys seeking the fees exercised billing judgment.
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Saizan v. Delta Concrete Prods. Co., 448 F.3d 795, 799 (5th Cir. 2006) (per
curiam). “Billing judgment requires documentation of the hours charged and of
the hours written off as unproductive, excessive, or redundant.” Id. (citing Walker
v. City of Mesquite, 313 F.3d 246, 251 (5th Cir.2002)). A court may reduce an
award by a percentage to substitute for the exercise of billing judgment where it
appears from the records supporting a motion for attorney’s fees that the attorneys
did not exercise billing judgment. Id.
Here, the billing statements classify every hour billed as recoverable and do
not reflect any hours written off as excessive, unproductive, or redundant. Mot.,
Ex. A-2 (ECF No. 23-1). Attorney Crystal G. Gibson’s declaration accompanying
the Motion states that the time expended on this matter was reasonable. Mot.,
Ex. A at 4–5, ¶¶ 10, 14(ECF No. 23-1). But this statement does not meet the burden
to demonstrate billing judgment. See Alto-Shaam, Inc. v. Manitowoc Co., 2012
WL 12978015, at *8 (N.D. Tex. Feb. 2, 2012) (O’Connor, J.) (finding that attorney
declaring 	that 	work 	performed 	was 	“neither 	excessive, 	duplicative, 	nor
inadequately documented” was insufficient to demonstrate billing judgment where
records showed no reduction or adjustment).
Additionally, the billing invoices reflect several entries that are duplicative
and excessive. There are over 10 entries—totaling over 3 hours—spent reviewing
the status of the docket and the Court’s ruling on the Motion for Default Judgment.
Mot., Ex. A-2, at 17, 19, 21–22 (ECF No. 23-1). Further, Ms. Lopez billed multiple
0.2-hour entries to review the status of a demand letter, review the status of the
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loss mitigation hold, and monitor the status of default judgment, totaling over 1
hour. See Mot., Ex. A-2 at 14–15. The Court finds these sorts of tasks to be largely
administrative and an inappropriate item to bill. Vela v. City of Houston, 276 F.3d
659, 681 (5th Cir. 2001) (holding that clerical work cannot be recovered as
attorney’s fees). Therefore, these entries are excessive and duplicative, indicating
a lack of billing judgment.
And Ms. Taplin billed 0.3 hours to leave a voice message to Judge Lindsay’s
chambers requesting an update on the status of the Motion for Default Judgment.
See Mot., Ex. A-2 at 22. However, Judge Lindsay specifically advises that attorneys
should not call Judge Lindsay’s staff for updates on substantive aspects of a specific
case. See District Judge Sam A. Lindsay, Judge Specific Requirements (V)(B), U.S.
D IST. CT. N.D. T EX ., https://www.txnd.uscourts.gov/judge/district-judge-sam-
lindsay [https://perma.cc/7CPC-J6FY]. That entry is another example of an
unproductive and excessive time entry.
These instances demonstrate that MWZM did not exercise billing judgment.
The Court, in its discretion, reduces the amount sought—$5,260.50—by 20
percent. Thus, the lodestar is $4,208.40. Hopwood v. Texas, 236 F.3d 256, 279
(5th Cir. 2000) (affirming 25 percent reduction in fee for lack of billing judgment);
Wells Fargo Bank Nat’l Ass’n v. Platt, 2020 WL 4340953, at *4 (N.D. Tex. May 27,
2020) (Rutherford, J.) (reducing overall award by 20 percent where MWZM did
not exercise billing judgment), adopted by 2020 WL 4339227 (N.D. Tex. July 27,
2020) (Godbey, J.); Moomjian v. TD Ameritrade Inc., 2017 WL 394523, at *3
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(N.D. Tex. Jan. 9, 2017) (Toliver, J.) (reducing overall award requested by 10
percent where attorneys did not provide sufficient evidence of billing judgment),
adopted by 2017 WL 367152 (N.D. Tex. Jan. 25, 2017) (Lindsay, J.); Alto-Shaam,
2012 WL 12978015, at *8 (same).
C. Adjustment to the Lodestar
Although 	there 	is 	a 	strong 	presumption 	that 	the 	lodestar 	figure 	is
reasonable, the Court must consider whether the lodestar should be adjusted
upward or downward based on the factors set forth in Johnson v. Georgia
Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), abrogated on other
grounds by Blanchard v. Bergeron, 489 U.S. 87 (1989).1 The district court,
however, is not required to “recite or even mention the Johnson factors, so long as
‘the record clearly indicates that the district court has utilized the Johnson
framework as the basis for its analysis.’” Moench v. Marquette Transp. Co. Gulf-
Inland, L.L.C., 838 F.3d 586, 596 (5th Cir. 2016) (quoting Union Asset Mgmt.
1 The Johnson factors are: (1) the time and labor required; (2) the novelty and
difficulty of the legal issues; (3) the skill required to perform the legal service
properly; (4) the preclusion of other employment by the attorney as a result of
taking the case; (5) the customary fee; (6) whether the fee is fixed or contingent;
(7) time limitations imposed by the client or other circumstances; (8) the monetary
amount involved and the results obtained; (9) the experience, reputation, and
ability of the attorneys; (10) whether the case is undesirable; (11) the nature and
duration of the professional relationship with the client; and (12) awards in similar
cases. Johnson, 488 F.2d at 717–19.
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Holding A.G. v. Dell, Inc., 669 F.3d 632, 642 (5th Cir. 2012)); see also EEOC v.
Agro Distribution, LLC, 555 F.3d 462, 473 (5th Cir. 2009).
Upon 	consideration 	of 	the 	Johnson 	factors, 	the 	Court 	finds 	that 	no
adjustment to the lodestar figure is necessary. This civil action was a typical
mortgage foreclosure case. The litigation did not require any unique skill or
expertise on the part of the MWZM attorneys; nor did it require more than the
usual investment of time or labor. Indeed, the docket reflects that the Defendants
did not make a single appearance in this matter. MWZM billed Plaintiff on an
hourly basis, and there is no evidence before the Court that Plaintiff imposed any
time limitation on MWZM or that other circumstances made representing Plaintiff
undesirable. MWZM charged a customary fee, which resulted in an award that is
typical for this type of case.
Accordingly, the Court should GRANT Plaintiff’s Motion in part and award
Plaintiff $4,208.40 in attorney’s fees.
III. Costs
The invoices provided reflect that MWZM incurred $709.00 in recoverable
expenses for, among other things, the filing fee in federal court and process servers.
These costs are recoverable under 28 U.S.C. § 1920, and the Court should GRANT
Plaintiff’s request for award of these costs.
Recommendation
For the forgoing reasons, Plaintiff’s Motion for Attorney’s Fees and Costs
(ECF No. 23) should be GRANTED in part. The Court should award Plaintiff
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$4,208.40 in attorney’s fees and $709.00 in costs—$4,917.40 in total. Defendants
should be ordered to pay $4,917.40 to Plaintiff as a further obligation owed by
them under the security instrument.
SO RECOMMENDED.
October 31, 2025.
REBECCA RUTHERFORD
UNITED STATES MAGISTRATE JUDGE
INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of this report and recommendation shall be served on all parties in
the manner provided by law. Any party who objects to any part of this report and
recommendation must file specific written objections within 14 days after being
served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). To be specific,
an objection must identify the specific finding or recommendation to which
objection is made, state the basis for the objection, and specify the place in the
magistrate judge’s report and recommendation where the disputed determination
is found. An objection that merely incorporates by reference or refers to the
briefing before the magistrate judge is not specific. Failure to file specific written
objections will bar the aggrieved party from appealing the factual findings and legal
conclusions of the magistrate judge that are accepted or adopted by the district
judge, except upon grounds of plain error. See Douglass v. United Servs. Auto.
Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).
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