Chase Manhattan Mortgage Corp. v. Lessel

Opinion

GILBERT, J.

A deed of trust contains an attorney’s fees provision. Code of Civil Procedure section 730 provides that the court shall fix attorney’s fees in a foreclosure action.

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Here we hold that section 730 does not authorize the court to award attorney’s fees, but only to determine the amount of attorney’s fees pursuant to an attorney’s fees clause in a security instrument after judgment in a foreclosure action.

Christopher Lee Lessel and Ann Janine Lessel appeal an order denying their motion for attorney’s fees pursuant to section 730. We affirm.

Facts

On March 20, 1986, Imperial Savings Association lent $450,000 to Christopher Lee and Ann Janine Lessel to pay off construction financing on their Westlake Village home. A deed of trust on 1486 Kingston Circle, Westlake Village, secured the obligation. Paragraph 19 of the deed of trust provided:

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“[In the event of default] Lender . . . may require immediate payment in full of all sums secured by this Security Instrument. . . and may invoke the power of sale and any other remedies permitted by applicable law. Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this paragraph 19, including . . . reasonable attorneys’ fees

Thereafter, the property suffered soil movement and the home was damaged. In August 1988, the Lessels ceased making loan payments and defaulted under the promissory note.

In July 1987, the Lessels brought an action against the developer of their home, the soils engineer who certified the soil compacting of the lot, and the Realtors representing the developer. (Lessel v. Prudential (Super. Ct. Ventura County, 1987, No. 97717).) In 1992, the Lessels recovered $462,500 in the lawsuit.

In Lessel v. Prudential, Imperial Savings Association sought an equitable lien on the $462,500. Eventually, the trial court dismissed Imperial Saving Association’s action for failure to prosecute. In 1992, the Resolution Trust Corporation brought an action against the Lessels, also seeking some or all of the $462,500. Resolution Trust Corporation dismissed its lawsuit in 1994.