Legal Question in Real Estate Law in California

Re: attorneys fees

It depends on whether the note and/or deed of trust contain an attorney's fees provision. If they do, then, assuming you bring a motion for attorney's fees within the statutory period, the court should award some amount of your attorney's fees. However, you should understand that the attorney's fees you incurred are a matter between you and your attorney and the court IS NOT REQUIRED to award the precise amount you paid. Moreover, if you did not have an attorney, you may not be entitled to "attorney's fees" at all.

Re: attorneys fees

The attorney fee clause might also be found in the loan application or other loan documentation. Look at everything the borrower signed.

Re: attorneys fees

I am a little concerned with an issue that the previous attorneys seemed to miss, and that is the one action rule of Code of Civil Procedure section 726. If you have sued the borrower on the note and deed of trust, and recovered money, you would be barred in the future from foreclosing on the property either judicially or nonjudicially.

Simply stated, the one action rule states that there can be but one action to recover for a debt secured by a deed of trust in California, and that is an action to foreclose.

Normally, the deed of trust or note provide for an award of attorney's fees if an action is brought to foreclose. From the facts that you have given, it would appear that you filed a non-foreclosure action, and want to add the fees to the amount of indebtedness secured by the deed of trust.

I would be puzzled as to what attorney would advise you to sue, but not foreclose. This appears to be major malpractice.

Very truly yours,

Re: attorneys fees

Normally, after judgment is entered, and prior to the time that an appeal can be filed, a Motion for Attorney Fees is made if attorney fees are allowed. If there is a foreclosure issue, trustee/attorney fees are usually allowed based on a formula per the note. Please call me if you have any other questions.