$45,263.33 Was The Award After A Dismissal Based On Plaintiff Not Appearing At Trial.
In Kleidman v. RFF Family Partnership, L.P., Case No. B268541 (2d Dist., Div. 4 July 10, 2018) (unpublished), plaintiff failed to appear at a scheduled trial such that his case against a lender was dismissed, a determination affirmed on appeal. The trial judge subsequently awarded lender $45,263.33 in attorney’s fees based on a fees clause in the deed of trust. Plaintiff challenged that determination, but the appellate court rejected it. In this case, the fees clause was broad, including “any action or actions … which may be brought … for the enforcement of any covenant or right in the Deed of Trust or any other Loan Document ….” Given that Civil Code section 1717 made it reciprocal in nature, the unilaterally-worded clause in favor of lender did not render it infirm.
BLOG OBSERVATION—The result here contrasts with the opposite conclusion reached in some cases, where deed of trust fees clause confined the remedy to adding the fees to the loan balance and then requiring a foreclosure. You can find cases supporting fee denials on this basis in our home page category “Deeds of Trust.”
Comments