Mortgage Loan Owner’s Entitlement To Contractual Fees Under Note And Deed Of Trust Fee Provisions Transferred To Loan Servicer When It Was Authorized To Act As Loan Owner’s Agent In Enforcing The Deed Of Trust.
In Nationstar Mortgage v. Abalkhad, Case No. B303946 (2d Dist., Div. 1 October 22, 2021) (unpublished), homeowner in judicial foreclosure action appealed from the judgment entered against him, which included an award of $508,186.49 in attorney fees to the loan servicer for fees it incurred in enforcing the promissory note on the mortgage loan and deed of trust securing the loan.
As to the fees, homeowner did not challenge the amount awarded. Instead, he argued – for the first time on appeal – that loan servicer was not entitled to recover fees under the attorney fees provisions in the note and deed of trust because it was not the lender.
The 2/1 DCA affirmed – finding there could be no dispute as to the mortgage loan owner’s entitlement to contractual fees based on the fees provisions under the Note and Deed of Trust. Because mortgage loan owner gave authority to loan servicer to act as its agent in enforcing the deed of trust, loan servicer was acting in place of mortgage loan owner, and was entitled to recover the fees it expended as if it were the mortgage loan owner. (Channel Lumber Co., Inc. v. Porter Simon, 78 Cal.App.4th 1222, 1227 (2000).)
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