De Novo Review Shows Fee Entitlement, Where Winning Borrower Showed Note/Trust Deed Unenforceable.
Borrower in Rohde v. Clark, Case No. F064642 (5th Dist. Jan. 30, 2014) (unpublished) defeated lender’s claim on a promissory note and second trust deed on the basis they were barred by the antdeficiency statutes. Based on fees clauses in both instruments, the trial court awarded prevailing defendant borrower $21,435 in attorney’s fees.
The appellate court affirmed because case law establishes that section 1717 fee recovery is available where the winning party establishes the unenforceability of a contract being sued upon, as did borrow under antideficiency protections. (North Associates v. Bell, 184 Cal.App.3d 860, 865 (1986).)