Deeds of Trust, Section 1717: Deed Of Trust Clause Allowing Fees To Be Added To Debt Did Not Create Civil Code Section 1717 Right To Fees In Favor Of Prevailing Borrower

2/1 DCA Followed Analysis In Hart and Chacker.

            In 8747 Shoreham, LLC v. Bank of New York Mellon, Case Nos. B294377/B296777 (2d Dist., Div. 1 Apr. 2, 2021) (unpublished), a decades-old real property dispute, owner obtained a default judgment against a deed of trust holder and then moved to recover attorney’s fees as prevailing party under a DOT clause and Civil Code section 1717.  The trial court denied the request, determining there was not a true fees clause so as to trigger section 1717.  The 2/1 DCA agreed, determining that the DOT clause only allowed for any fees to be added to the debt such that no section 1717 fee recovery was allowable.  In doing so, it relied upon the reasoning in Hart v. Clear Recon Corp., 27 Cal.App.5^th 322, 327 (2018) [reviewed in our Sept. 19, 2018 post] and Chacker v. JPMorgan Chase Bank, N.A., 27 Cal.App.5^th 351, 358 n. 6 (2018) [reviewed in our Sept. 20, 2018 post].  It also distinguished other cases where there was a separate prevailing party fees clause in a DOT which would have allowed for such recovery.