However, Looks Like Borrower Waived The Winning Argument That The Deed Of Trust Clause Only Allowed Fees To Be Added To the Loan Amount.
Fox v. JPMorgan Chase Bank, N.A., Case Nos. B285069/B288282 (2d Dist., Div. 3 Oct. 22, 2019) (unpublished) is a decision which affirmed an attorney’s fees award under a broad deed of trust provision, but sadly shows that borrower may have missed a winning argument which might have led to a different result with respect to the fee award.
In this opinion, lender, successors, and loan servicer Chase obtained summary judgment against various claims by borrower seeking to cancel or void the loan note and deed of trust. The summary judgment was upheld on appeal. The lower court also awarded successful defendants attorney’s fees under a broad deed of trust clause and Civil Code section 1717.
The fee award, too, was sustained by the appellate court. The reason was that the deed of trust fees clause was broad enough to cover the claims by borrower such that fees were warranted for the defendants to protect their interests under the note and deed of trust. It did not matter that Chase was not a signatory to the DOT, because it was sued as if it was a party thereto and was entitled to fees under Civil Code section 1717. (Chacker v. JPMorgan Chase Bank, N.A., 27 Cal.App.5th 351, 356 (2018) [reviewed in our September 20, 2018 post].)
However, borrower may have missed the winning argument. Borrower failed to raise the argument that fees would only be added to the loan amount, an important distinction requiring reversal of a fee award in Chacker. In a footnote, the Fox court found this argument had been abandoned or waived.
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