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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

William R Donges, et al.,

Plaintiffs,

v. 

USAA Federal Savings Bank,

Defendant.

No. CV-18-00093-TUC-RM

ORDER 

Pending before the Court is Defendant’s Motion for Reconsideration. (Doc. 100.) 

Following the Court’s grant of summary judgment in favor of Defendant (Doc. 83), 

Defendant moved for attorneys’ fees and costs in the amount of $114,928.91 (Doc. 86.) 

The Court denied Defendant’s motion, finding that the discretionary factors under A.R.S. 

§ 12-341.01, and particularly the relative financial interests of the parties and the strong 

public interest in not disincentivizing homeowners from challenging allegedly unlawful 

foreclosure practices, weighed against the award of fees. (Doc. 99.) Defendant has now 

moved the Court for reconsideration, arguing that this Court erred in failing to award fees 

under a contract provision. (Doc. 100.) Plaintiffs filed a Response. (Doc. 108.) The Court 

will grant Defendant’s Motion for Reconsideration (Doc. 100) and award the requested 

fees. 

Arizona law provides courts considerable discretion in awarding reasonable 

attorneys’ fees under A.R.S. § 12-341.01, but “narrowly circumscribed” discretion in 

awarding attorneys’ fees pursuant to a contractual provision. McDowell Mountain Ranch 
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Cmty. Ass'n, Inc. v. Simons, 165 P.3d 667, 672 (Ariz. Ct. App. 2007). In an appropriate 

case, the Court may entirely refuse to award fees under A.R.S. § 12-341.01, but “the 

court lacks discretion to refuse to award fees under [a] contractual provision.” Chase 

Bank of Ariz. V. Acosta, 880 P.2d 1109, 1121 (Ariz. App. 1994).

Here, the Deed of Trust securing Plaintiffs’ loan states that, if Plaintiff breaches 

“any covenant in this Security Instrument,” then Defendant is entitled to “all costs and 

expenses [Defendant] incurs in . . . protecting its security interest in the property ” (Doc. 

65-3 at 4.) The provision specifies that such expenses include attorneys’ fees and court 

costs. (Id.) Here, there is no dispute that Plaintiffs breached the covenant by defaulting on 

their loan obligation. (See Defendants Response to Motion for Reconsideration, Doc. 

108.) The costs that Defendant incurred in litigating this action were plainly taken to 

“protect [Defendant’s] Security Interest,” since Plaintiffs would have gained title to the 

property if they were successful in this action. 

The Court accordingly finds that it lacks the discretion to deny Defendant an 

award of a request for reasonable attorneys’ fees actually performed. Having reviewed 

the time logs and affidavit provided by Defendant (Doc. 86), the Court finds that the fees 

requested in the amount of $112,256.50 represent the actual expenses reasonably incurred 

by Defendant in defending this action. Therefore, upon reconsideration, the Court will 

award the requested fees. For the reasons stated in the Court’s previous Order, the Court 

will not award costs. (Doc. 99.)

Accordingly, 

. . . . 

. . . . 

. . . . 

. . . . 

. . . . 

. . . . 
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IT IS ORDERED that Defendant’s Motion for Reconsideration (Doc. 100) is 

granted. 

IT IS FURTHER ORDERED that Defendant is awarded $112,256.50 in 

attorneys’ fees. 

Dated this 8th day of May, 2020.