Plaintiff's Claims Implicated Contract Based Claims And Broadly Worded Fees Clauses In DOT Covered Tort Claims Also.
In Kalnoki v. First American Trustee Servicing Solutions, LLC, Case No. C073207 (3d Dist. Feb. 1, 2017) (partial published; fee discussion unpublished), plaintiff lost wrongful foreclosure-related claims against a lender's assignee/successor, with the trial judge awarding $14,500 out of a requested $31,570 based on broadly worded promissory note and deed of trust fees clauses.
The losing plaintiff's challenges to the fee award did not resonate on appeal.
Plaintiff's breach of implied covenant and rescission were "on the contract" so as to justify fee recovery, not to mention that the broadly worded trust deed clauses protecting lender's security from impairment also encompassed the tort claims relating to wrongful foreclosure. Beyond that, the fact that the prevailing defendant was a successor or assignee to the original lender did not prevent it from being able to enforce the contractual fee clauses.