Deed Of Trust: Fee Clause In Deed Of Trust Was Broad Enough To Allow Prevailing Trustee Fees In Set Aside Suit Both At The Trial And Appellate Levels

Appellate Fees Were Also Recoverable From Prevailing In Earlier Appeal.

            Borrowers need to be careful when including deed of trust trustees in set-aside trustee sale foreclosure suits, even when they do not file a non-monetary declaration to avoid being entangled in such a lawsuit. In the next case, trustee obtained a summary judgment, including fees, and won the summary judgment motion on appeal. That win also entitled trustee to fees for winning on the earlier appeal, with borrowers’ challenges to the appellate fees not convincing.

            In Foster v. Old Republic Default Management Services, Case No. B280006 (2d Dist., Div. 8 Aug. 27, 2018) (unpublished), borrowers challenged an award of $41,658.75 in appellate fees to a deed of trust trustee who obtained summary judgment and trial court fees below, after trustee successfully defended a summary judgment against borrowers and in favor of trustee.

            The appeal of the appellate fee award was unsuccessful. Borrowers argued that the earlier appeal was wrongly decided, but that was long since final so that trustee was the prevailing party. A deed of trust fees provision was broad, encompassing fees incurred by a prevailing party in the performance of any act permitted in connection with the DOT, which would include trustee actions. The only argument was whether the fee clause encompassed later appellate fees in defending a prior result, and it does. (Morcos v. Board of Retirement, 51 Cal.3d 924, 927 (1990); Dankert v. Lamb Finance Co., 146 Cal.App.2d 499, 503-504 (1956).)