The Parties’ Note Contained An Attorney Fees Provision, But Their Arbitration Agreement Did Not, And A Motion To Vacate An Arbitration Award Is Not An Action On A Note.
In Bilodeau v. Modern Mobile Homes, Case No. B302791 (2d Dist., Div. 6 March 29, 2021) (unpublished), plaintiff buyers entered into an agreement for the purchase of a remodeled mobile home with defendant seller. Seller financed buyers’ balance owed for the purchase by taking buyers’ note which was secured by a security agreement in the mobile home. The note contained an attorney’s fee provision, but the purchase agreement – which included an arbitration clause – did not.
When a dispute arose between the parties regarding structural issues, buyers invoked arbitration – seeking damages and rescission of the purchase transaction. After the arbitrator awarded buyer’s $45,000 down payment to seller, declared buyers’ note would be cancelled upon return of the mobile home to seller, and did not award attorney fees, buyers moved unsuccessfully to have the trial court vacate the arbitration award.
After denying buyers’ motion, the trial court, based on the attorney fee provision in the note, awarded seller $10,000 of its requested $21,000 as the prevailing party in the motion to vacate – a result reversed by the 2/6 DCA.
Because the arbitration agreement did not provide for an award of attorney fees, Code Civ. Proc. § 1284.2 precluded such an award. Although the trial court awarded the fees under the fees provision contained in the parties’ note, a motion to vacate an arbitration award is not an action on a note.
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