Deeds Of Trust, Equity: Lender Electing Judicial Foreclosure Which Did Not Fix Amount Of Additional Attorney’s Fees And Costs, But Forcing A Borrower Pay Off To Lender Due To Nonjudicial Foreclosure Activities, Had To Return Fees And Costs To Borrower

Lender Elected Its Judicial Foreclosure Remedy, With Borrower Not Being Assessed With Fees And Costs.

            Lender must not be pleased with the result in Transition Financial Services, LLC v. Wintrust Bank, Case Nos. A162930 et al. (1^st Dist., Div. 5 Sept. 29, 2023) (unpublished).  Lender obtained a judicial foreclosure judgment for the amount of the secured debt, but never pursued adding additional attorney’s fees and costs of a claimed additional $500,000 to the judgment or moving for same in that action.  However, lender threatened nonjudicial foreclosure such that the borrower paid the claimed additional fees and costs to avoid the trustee’s sale and loss of property.  Eventually, a trial judge held that lender had elected its judicial foreclosure remedy and had to return the fees and costs to borrower because they were not part of the judicial foreclosure judgment.  The appellate court affirmed, finding that lender had elected its remedy—it could have gone judicial or nonjudicial foreclosure, but obtained a judgment under the former path.  As such, borrower did not owe the additional fees and costs; and, also, was properly found to be the prevailing party entitled to fees and costs ordered by the lower court after determining borrower prevailed on the election of remedies issue.