Deed Of Trust: Borrower Proving Loan Modification Case Entitled To $188,100 Fee Award Under Note/Deed Of Trust Clauses

 

Implied Covenant/Modification Claim Arose Out Of Note And Deed Of Trust.

     In Bergman v. JP Morgan Chase Bank, N.A., Case No. E060148 (4^th Dist., Div. 2 Sept. 30, 2015) (unpublished), borrower won an implied breach of covenant claim, based on a loan modification, against lender, receiving $250,000 in compensatory damages on this and a separate fraud claim. Borrower then moved to recover fees based on entitlement clauses in the note and deed of trust, a request granted by the lower court—although it only awarded $188,100 out of a requested $454,772.23.

     The fee award was affirmed on appeal. The appellate court determined that the fees provisions in the note and deed of trust encompassed contractual implied covenant claims, such that the fee award was proper. (Smith v. Home Loan Funding, Inc., 192 Cal.App.4^th 1331, 1337 (2011).)