Haynes v. First Federal Bank of Ca.
Filed 9/17/08 Haynes v. First Federal Bank of Ca. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
TRACY HAYNES, SR., Plaintiff and Appellant, v. FIRST FEDERAL BANK OF CALIFORNIA, Defendant and Respondent. | E044500 (Super.Ct.No. RCV096333) OPINION |
APPEAL from the Superior Court of San Bernardino County. Keith D. Davis, Judge. Affirmed.
Tracy Haynes, Sr., in pro. per., for Plaintiff and Appellant.
Epport, Richman & Robbins, Steven N. Richman and Wendy K. Shapnick for Defendant and Respondent.
Plaintiff and appellant Tracy Haynes, Sr., appeals after the trial court awarded attorney fees to defendant and respondent First Federal Bank of California (First Federal), as the prevailing party in an underlying lawsuit. We affirm the attorney fees award.
FACTS AND PROCEDURAL HISTORY
First Federal was evidently the lender and beneficiary under a deed of trust on a home in Rancho Cucamonga. Plaintiff, in an intended purchase transaction, purported to take over the borrowers loan, but the borrower and plaintiff effected their arrangement without the consent of First Federal.
Plaintiff filed the underlying lawsuit below, seeking to enjoin First Federal and others from foreclosing on the property. Among other things, plaintiff claimed that First Federal had allowed him to assume the loan, that he was now the borrower under the deed of trust, that he had the right to cure the default, and that First Federal had breached its contractual obligations to him.
In the underlying litigation, First Federal indicated that it would not oppose a temporary restraining order halting the foreclosure sale, if plaintiff posted a bond. Plaintiff failed to post the bond, and no temporary restraining order issued.
Eventually, the trial court granted summary judgment in favor of First Federal and entered judgment.
The trial court determined that First Federal was the prevailing party in the litigation. First Federal moved for its attorney fees under the clause contained in the deed of trust and other loan and contractual documents. The trial court granted the motion, awarding attorney fees in the sum of $141,173, and costs of $4,027.80.
Plaintiff appeals.
ANALYSIS
Plaintiff argues that because First Federal claimed that he was not a proper successor borrower under the deed of trust, its own actions rendered him a nonparty to the contractual documents containing the attorney fees clause. Because plaintiff was not a party to the attorney fees contractual provision, the trial court erred in awarding fees against him.
I. Standard of Review
Review of an award of attorney fees and costs is usually under the abuse of discretion standard. (Castro v. Superior Court (2004) 116 Cal.App.4th 1010, 1017.) Nonetheless, when the question is whether the criteria for an award of attorney fees have been met, the issue amounts to a question of law, which we review de novo. (Sessions Payroll Management, Inc. v. Noble Construction Co. (2000) 84 Cal.App.4th 671, 677.)
II. The Attorney Fees Clause Applied to Plaintiff
The crux of plaintiffs argument is if First Federal denied that he had properly assumed the loantreated him as a nonparty to the contractthen it could not enforce the attorney fees clause against him. Unfortunately for plaintiff, this issue has already been resolved against his position.
[I]n cases involving nonsignatories to a contract with an attorney fee provision, the following rule may be distilled from the applicable cases: A party is entitled to recover its attorney fees pursuant to a contractual provision only when the party would have been liable for the fees of the opposing party if the opposing party had prevailed. (Real Property Services Corp. v. City of Pasadena (1994) 25 Cal.App.4th 375, 382.)
That determination depends upon an analysis of the claims plaintiff made in his complaint. (See Dell Merk, Inc. v. Franzia (2005) 132 Cal.App.4th 443, 451.)
Here, plaintiffs own position in the litigation was that he had assumed the loan and stood in the shoes of the rightful borrower, with all the rights attendant thereto. In effect, he tried to assert and enforce his rights under the contract. If plaintiff had succeeded and had prevailed at trial, he no doubt would have claimed, and would have been entitled to claim, the benefit of the contractual attorney fees provision. (See Saucedo v. Mercury Sav. & Loan Assn. (1980) 111 Cal.App.3d 309, 315.)
Seeking to avoid the applicability of the attorney fees provision, plaintiff now asserts that he was not purporting to stand in the shoes of the original borrower on the original note and deed of trust. Rather, he now argues that his claim against First Federal was based on its breach or rescission of an oral agreement to send him the papers allowing him to apply to assume the loan. Such oral agreement, of course, had no attorney fees clause.
Plaintiffs new theory is unavailing, however. The substance of plaintiffs underlying lawsuit was to stop foreclosure proceedings. He claimed the right to stop those proceedings as the stand-in for the original borrower, with the rights of the original borrower under the original loan contract and deed of trust. A suit for breach of an oral contract to send plaintiff application documents would do nothing to stop the foreclosure. Even if plaintiff succeeded in enforcing a contract to send him an assumption application, nothing would oblige First Federal to approve the application. Nothing would have changed the relevant circumstances, i.e., that plaintiff and the original borrower had transferred title to the property without notice to or consent from First Federal. That transfer of title without notice was a breach of the original loan agreement and deed of trust, triggering the due-on-sale clause. Plaintiffs attempt to recast his lawsuit as a breach of the oral agreement to send him an assumption application must fail. Such a suit would have been useless and impractical. We decline to attribute such a futile and frivolous intention to plaintiffs underlying suit. Substantively, he sought to enforce the original loan agreement and deed of trust terms, which did contain the attorney fees clause.
DISPOSITION
The award of attorney fees to First Federal as the prevailing party in the underlying litigation was proper; the clause was enforceable against plaintiff even though he was not a party to the contract.
Costs on appeal are awarded to First Federal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
MILLER
J.
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