Tyler v. Wells Fargo Bank CA4/2

• Court: California Court of Appeal
• Decided: July 8, 2016
• Docket: E063985
• Status: Unpublished

Opinion

Filed 7/8/16 Tyler v. Wells Fargo Bank 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

STEVEN GREEN TYLER,

Plaintiff and Respondent, E063985

v. (Super.Ct.No. CIVDS1402881)

WELLS FARGO BANK, N.A., OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Bryan Foster,

Judge. Affirmed.

Wright, Finlay & Zak, T. Robert Finlay, Nicholas G. Hood and Kathryn A.

Moorer for Defendant and Appellant.

Wesierski & Zurek, David M. Ferrante and Lynne Rasmussen for Plaintiff and

Respondent.

1 I

INTRODUCTION

Defendant Wells Fargo Bank, N.A. (Wells Fargo), as trustee for First Franklin

Mortgage Loan Trust Series 2004-FFH2 Asset Backed Certificates 2004-FFH2 (Asset

Backed Certificates Trust), appeals an order denying Wells Fargo’s motion for an award

of attorney fees. Wells Fargo filed the motion after Wells Fargo was dismissed from a

wrongful foreclosure action brought by Steven Green Tyler (Tyler) against Wells Fargo

and other defendants.1

Wells Fargo contends that under Civil Code sections 1021 and 1717, Wells Fargo

is entitled to recover reasonable attorney fees as the prevailing party under a deed of trust

on Tyler’s property (Senior TD). Wells Fargo argues the trial court erred in ruling that

the Senior TD did not authorize Wells Fargo to recover attorney fees incurred in

protecting Wells Fargo’s interests under the Senior TD. Wells Fargo asserts that, even

though the Senior TD was paid off and extinguished prior to the lawsuit, Wells Fargo

could nevertheless recover its attorney fees under the Senior TD. Wells Fargo argues it is

entitled to recover its attorney fees under Civil Code section 1717, because Tyler’s action

involved claims predicated upon a contract, the Senior TD.

1First Entertainment Credit Union; First Franklin Financial Corporation; Ocwen Loan Servicing, LLC; Western Progressive, LLC; and, Asset Backed Certificates Trust.

2 We conclude the trial court properly denied Wells Fargo’s motion for attorney fees

because the attorney fees provision in the Senior TD states that any attorney fees

recoverable under the Senior TD “shall become additional debt of Borrower secured by

this Security Instrument.” Wells Fargo was therefore limited to recovering its attorney

fees against Tyler by adding such fees to the Senior TD as debt, before the Senior TD

was extinguished. The judgment is therefore affirmed.

II

FACTS AND PROCEDURAL BACKGROUND

In 2004, Tyler borrowed $225,000 to purchase property in Lake Arrowhead (the

property). The loan was secured by the property pursuant to the Senior TD, executed by

Tyler and recorded on February 27, 2004. First Franklin Financial Corp. was the

originating lender. On March 2, 2004, all rights, title and interest in the Senior TD were

transferred to Wells Fargo by execution of a recorded Corporate Assignment of Deed of

Trust.

Ocwen Loan Servicing, LLC (Ocwen) was the attorney in fact for Wells Fargo and

the loan servicer for the loan secured by the Senior TD. Ocwen held a power of attorney

for the Senior TD, allowing Ocwen to represent Wells Fargo’s interests in litigation and

enforce the Senior TD.

In 2007, Tyler obtained a second loan secured by the property in the amount of

$145,000, from First Entertainment Credit Union (FECU). Tyler was the trustor, and

FECU was the lender and beneficiary under the deed of trust (Junior TD).

3 When Tyler began having difficulty making the payments on the property loans,

Tyler attempted to modify the loans. He was told the defendants would work with him in

structuring an alternative to foreclosure on his property and that he qualified for a

mortgage modification. Nevertheless, defendants failed to assist Tyler with modifying

the loans and sold the property on November 13, 2013.

In December 2014, Ocwen notified Tyler by email that the senior loan had been

paid off. The next day, Tyler received a letter from FECU requesting Tyler to contact

FECU. Upon doing so, Tyler learned for the first time that the property had been sold.

In January 2014, the locks were changed on the property without Tyler’s consent and he

was charged for default-related services.

Wrongful Foreclosure Complaint

In March 2014, Tyler filed a wrongful foreclosure complaint against the FECU,

Ocwen, and the Asset Backed Certificates Trust, alleging breach of contract and seeking

to set aside the foreclosure, retain the payoff funds paid to Wells Fargo, and to rescind the

note and Senior TD. The breach of contract cause of action in the original complaint

alleged that the defendants, including Ocwen, the Asset Backed Certificates Trust, and

FECU promised to provide Tyler with a loan modification because he had been approved.

Tyler accepted the offer by performing as instructed and making four payments of the

modified amount as instructed. Defendants allegedly breached the terms of the contract

by returning Tyler’s fourth payment, by not granting the promised permanent loan

modification, and by selling Tyler’s home without providing him with notice of the sale.

4 In April 2014, Ocwen, as servicer of the senior loan, appointed Wells Fargo as

successor trustee of the Asset Backed Certificates Trust, in place of First Franklin

Financial Corp. Asset Backed Certificates Trust was removed as a defendant and Wells

Fargo was added. Tyler filed a first amended complaint (FAC), which eliminated Asset

Backed Certificates Trust from the breach of contract cause of action. Ocwen and Wells

Fargo demurred to the FAC, which the trial court sustained with leave to amend.

Tyler filed a second amended complaint (SAC). The Asset Backed Certificates

Trust was added back as a defendant. The SAC included the following causes of action

alleged against the Asset Backed Certificates Trust: (1) quiet title, (2) fraudulent

conveyance, (3) negligence, (4) breach of implied covenant of good faith and fair dealing,

(5) violation of Business and Professions Code section 17200, (6) wrongful

foreclosure/rescission, (7) cancellation of instruments/rescission, and (8) declaratory

relief. Wells Fargo was not mentioned in the SAC but was added again as a defendant in

place of the defendant Asset Backed Certificates Trust, which was removed as a named

defendant. There was no breach of contract claim remaining against Wells Fargo or

Asset Backed Certificates Trust.

In October 2014, Wells Fargo, as trustee for the Asset Backed Certificates Trust,

and Ocwen demurred to the SAC. Wells Fargo and Ocwen argued foreclosure was on the

junior loan, not the senior loan, which was paid off before foreclosure on the Junior TD.

Therefore Wells Fargo and Ocwen were not liable in any way because they were not

involved in foreclosing on Tyler’s property. In December 2014, Tyler voluntarily

5 dismissed two of the causes of action, and the trial court sustained Wells Fargo’s

demurrer to the remainder of the SAC without leave to amend. The trial court entered an

order of dismissal with prejudice as to Wells Fargo, as trustee for the Asset Backed

Certificates Trust.

Motion for Attorney Fees

As a prevailing party, Wells Fargo filed a memorandum of costs and amended

memorandum of costs. Wells Fargo also filed a motion for attorney fees under Civil

Code section 1717 and the Senior TD attorney fees provision.

During oral argument on Wells Fargo’s motion for attorney fees, Tyler’s attorney

argued Wells Fargo was not entitled to attorney fees on the following three grounds: (1)

Wells Fargo was not a beneficiary of the Senior TD; (2) the Senior TD does not contain a

provision allowing for recovery of attorney fees after the trust has been extinguished; and

(3) Wells Fargo was not entitled to attorney fees under Civil Code section 1717, because

the contract cause of action was voluntarily dismissed, Wells Fargo was voluntarily

dismissed, and the complaint was not thereafter amended to add Wells Fargo.

Counsel representing Ocwen and Wells Fargo, Kathryn Moore, argued that Wells

Fargo, not Ocwen, was a beneficiary of the Senior TD, as reflected in the recorded

assignment, and Tyler conceded this in his opposition. Ocwen was only the servicer of

the loan secured by the Senior TD. In addition, Moore asserted that the Senior TD

contained an attorney fees provision that was broad enough to provide for recovery of

attorney fees. The fee provision allowed Wells Fargo to recover attorney fees in any

6 legal proceeding that might significantly affect Wells Fargo’s rights and the security

interest. Moore argued that case law holds that a lender can recover its attorney fees in a

post-foreclosure action after the loan ceases to exist. Wells Fargo, as beneficiary under

the Senior TD, therefore had a right to protect its rights under the Senior TD and recover

its attorney fees in doing so.

As to recovery of attorney fees under Civil Code section 1717, Moore argued the

first and second amended complaints contained breach of contract claims against Wells

Fargo. Furthermore, the Senior TD attorney fees provision permitted Wells Fargo to

recover attorney fees not only for breach of contract but also based on the noncontract

claims, as long as the claims challenged Wells Fargo’s rights.

Tyler’s attorney responded that Wells Fargo failed to mention that the Senior TD

contains language stating that, when Wells Fargo is required to protect its interest as the

note lender, “Any amounts disbursed by a lender under this Section 9 shall become

additional debt of borrower secured by this security instrument.” Under this provision,

Wells Fargo would get reimbursed for its litigation expenses through the debt under the

note. But in the instant case, the debt was already extinguished when the junior note

holder paid off the senior note. The Senior TD and note were therefore extinguished,

which meant thereafter Wells Fargo could not recover its attorney fees for subsequent

litigation. Tyler added that Wells Fargo could not recover its attorney fees under Civil

Code section 1717 because Wells Fargo was voluntarily dismissed from the complaint.

7 After taking the matter under submission, the court denied Wells Fargo’s motion

for attorney fees on the ground section 9 of the Senior TD did not provide “a contractual

remedy for the recovery of attorney fees as [] costs associated with litigating a contractual

dispute.” The trial court explained in its minute order: “The contractual provision here is

not contemplating that incurred attorney fees are [] recoverable costs by the prevailing

party under a contractual dispute. Code of Civ. Proc. [§] 1033.5(a)(10) allows attorney

fees to be recovered as [] costs when allowed by a contractual provision. Section 9

provides no remedy for Wells Fargo (the beneficiary) to collect the costs of incurred

attorney fees related to securing and protecting its rights and interests. It only provides

the beneficiary/lender can incur attorney fees to protect its interest and rights. Again,

section 9 is not providing the lender/beneficiary with a basis to [recover] attorney fees as

a litigation cost. Therefore, no contractual provision exists providing for the recovery of

attorney fee[s].”

III

STANDARD OF REVIEW

In determining whether Wells Fargo is entitled to attorney fees, we examine the

applicable statutes and the attorney fees provision in the Senior TD. Extrinsic evidence

has not been offered to interpret the attorney fees clause of this contract and the facts are

not in dispute. We therefore review the trial court’s decision de novo. (Exxess

Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 705; accord, Blackburn v.

8 Charnley (2004) 117 Cal.App.4th 758, 767 [“On appeal, we review the determination of

the legal basis for an award of attorney fees de novo as a question of law.”].)

IV

LAW APPLICABLE TO RECOVERY OF ATTORNEY FEES

Under the American Rule, each party ordinarily must pay its own attorney fees

unless a contract or a statute provides otherwise. (Cargill, Inc. v. Souza (2011) 201

Cal.App.4th 962, 966 (Cargill).) Attorney fees are allowable as costs under Code of

Civil Procedure section 1032, “when authorized by any of the following: [¶] (A)

Contract. [¶] (B) Statute. [¶] (C) Law.” (Code Civ. Proc., § 1033.5, subd. (a)(10).)

Where a contract specifically provides for an award of attorney fees, Civil Code section

1717 allows recovery of attorney fees by the prevailing party, regardless of whether the

contract specifies that party. (Cargill, at p. 966.)

In order to recover attorney fees under Civil Code section 1717, (1) a contract

must authorize such fees, (2) the party seeking attorney fees must be the prevailing party,

and (3) the fees incurred must be reasonable. (Johnston v. Lindauer (E.D. Cal. 2010)

2010 U.S. Dist. LEXIS 81649, p. 9 (Johnston).) The party seeking attorney fees must

show that the claim fell within the scope of the contract provision allowing attorney fees.

(Baldain v. Am. Home Mortg. Servicing, Inc., 2010 U.S. Dist. LEXIS 82876, pp. 5-6;

Johnston, at pp. 9-10)

9 V

RECOVERY OF ATTORNEY FEES UNDER THE SENIOR TD

Wells Fargo asserts that section 9 of the Senior TD allows Wells Fargo, as

successor to the originating lender, to recover its attorney fees incurred in protecting its

interest in the property and enforcing its rights under the Senior TD. We disagree.

Section 9 of the Senior TD provides for an award of attorney fees but not under

the circumstances in the instant case. Section 9 states in relevant part: “9. Protection of

Lender’s Interest in the Property and Rights Under this Security Instrument. If (a)

Borrower fails to perform the covenants and agreements contained in this Security

Instrument, (b) there is a legal proceeding that might significantly affect Lender’s interest

in the Property and/or rights under this Security Instrument (such as a proceeding in . . .

forfeiture, for enforcement of a lien which may attain priority over this Security

Instrument or to enforce laws or regulations), . . . then Lender may do and pay for

whatever is reasonable or appropriate to protect Lender’s interest in the Property and

rights under this Security Instrument, . . . but are not limited to: (a) paying any sums

secured by a lien which has priority over this Security Instrument; (b) appearing in court;

and (c) paying reasonable attorneys’ fees to protect its interest in the Property and/or

rights under this Security Instrument, . . .”

Section 9 of the Senior TD further states that, “Any amounts disbursed by Lender

under this Section 9 shall become additional debt of Borrower secured by this Security

Instrument. These amounts shall bear interest at the Note rate from the date of

10 disbursement and shall be payable with such interest, upon notice from Lender to

Borrower requesting payment.”

Tyler argues that, although the Senior TD attorney fees provision allows for

recovery of attorney fees incurred in protecting Wells Fargo’s interests, the fees are

recoverable only during the life of the Senior TD, because the fees are added as debt

secured by the Senior TD. After the deed of trust is paid off and extinguished, Wells

Fargo can no longer recover attorney fees.

Wells Fargo cites a string of cases in support of the proposition Wells Fargo can

recover its attorney fees under the Senior TD attorney fees provision. Those cases

include Smith v. Home Loan Funding, Inc. (2011) 192 Cal.App.4th 1331, Jones v. Union

Bank of California (2005) 127 Cal.App.4th 542, Wutzke v. Bill Reid Painting Service,

Inc. (1984) 151 Cal.App.3d 36, as well as federal cases, Hamilton v. Willms (E.D. Cal.,

2006) 2006 U.S. Dist. LEXIS 41115 (Hamilton), Boza v. US Bank NA (9th Cir. Cal.

2015) 606 Fed.Appx. 357, Zimmerman v. Aurora Loan Services (N.D. Cal. 2009) 2009

U.S. Dist. LEXIS 1609 (Zimmerman), Schroeter v. Wells Fargo Bank N.A. (S.D. Cal.

2013) 2013 U.S. Dist. LEXIS 87142, and Johnston, supra, 2010 U.S. Dist. LEXIS 81649.

Wells Fargo argues that in these cases the court granted the prevailing party’s

motion for attorney fees under an attorney fees provision similar, if not identical, to the

attorney fees provision in the Senior TD in the instant case. In some of the cases,

attorney fees were granted post-foreclosure, which Wells Fargo argues is analogous to

11 the instant case in which attorney fees were incurred after the Senior TD was paid off and

ceased to exist. Wells Fargo’s reliance on the cited cases is misplaced.

With the exception of Hamilton, supra, 2006 U.S. Dist. LEXIS 41115 and

Zimmerman, supra, 2009 U.S. Dist. LEXIS 1609, none of the attorney fees clauses in the

cases cited by Wells Fargo include language similar to the attorney fees provision in the

Senior TD in the instant case, requiring that attorney fees incurred “by Lender under this

Section 9 shall become additional debt of Borrower secured by this Security Instrument.”

In addition, none of the cases cited by Wells Fargo involve a wrongful foreclosure action

arising from foreclosure on a junior deed of trust, with the senior deed of trust paid off,

and the trustee of the senior deed of trust seeking recovery of its attorney fees under the

extinguished senior deed of trust.

In Hamilton, supra, 2006 U.S. Dist. LEXIS 41115, a foreclosure lawsuit,

defendants Redwood Trust Deed Service (Redwood Trust) and Susan Willms Thurston

(Thurston), beneficiary of the Westamerica Bank Deed of Trust (Westamerica TD),

brought motions for attorney fees based on attorney fee provisions in deeds of trust. The

federal district court in Hamilton granted Redwood Trust’s request for attorney fees and

denied Thurston’s attorney fees request. (Id. at p. 32.)

The Hamilton court noted that the attorney fee provision in the Redwood Trust

deed of trust (Redwood TD) was a standard one. It applied to the defendant’s

“appearance in ‘any action or proceeding purporting to affect the security.’” (Hamilton,

supra, 2006 U.S. Dist. LEXIS 41115 at p. 11.) There is no indication that the Redwood

12 TD, attorney fee provision required that any amounts disbursed by the lender under the

attorney fee provision must be added as debt secured by the Redwood TD.

Unlike the Redwood TD, the Westamerica TD was paid off before the inception of

the action and the litigation did not involve foreclosure on the Westamerica TD.

(Hamilton, supra, 2006 U.S. Dist. LEXIS 41115 at p. 18.) The Hamilton court concluded

the Westamerica TD, attorney fee provision was narrower than the Redwood TD,

attorney fee provision. The court in Hamilton denied attorney fees on the Westamerica

TD because, as in the instant case, the defendants foreclosed on an entirely different deed

of trust than the Westamerica TD. The plaintiffs alleged they were induced to pay off the

Westamerica TD without being told the trust deed had previously been assigned to

another party. After the plaintiffs paid off the Westamerica debt, the defendants

foreclosed on the plaintiffs’ property based on an entirely different promissory note and

deed of trust than the Westamerica TD. The complaint sought to set aside the foreclosure

sale and return the property to the plaintiffs. (Id. at pp. 19-20.)

The Hamilton court explained Thurston’s motion for attorney fees was denied

because “no Defendant is being sued because of their ownership of the Westamerica

Deed of Trust or any duties owed under this document.” (Hamilton, supra, 2006 U.S.

Dist. LEXIS 41115 at p. 20.) The Hamilton court concluded the defendants were not

required to litigate the action for the protection of their interest or the enforcement of

their rights given under the Westamerica TD. (Ibid.) The defendants were not being

13 sued because of their ownership of the Westamerica TD or any duties owed under the

deed. Therefore attorney fees were not available. (Ibid.)

Also, unlike the Redwood TD, the Westamerica TD contained a provision

requiring recovery of attorney fees as added debt. The Westamerica TD attorney fees

provision stated that “all reasonable expenses incurred by Lender which in Lender’s

opinion are necessary at any time for the protection of its interest or the enforcement of

its rights shall become a part of the indebtedness payable on demand.” (Hamilton, supra,

2006 U.S. Dist. LEXIS 41115 at p. 18; italics added.)

Similarly, in Zimmerman, supra, 2009 U.S. Dist. LEXIS 1609, the trust deed

included language that the attorney fees “shall become additional debt of Borrower” but,

unlike the instant case, there is no indication the attorney fee provision further required

that such debt be secured by the security instrument, as is required in the instant case.

(Id. at p. 2.) Furthermore, the federal district court in Zimmerman did not address the

argument raised in the instant case that the language requiring the attorney fees added as

debt, precluded recovery of attorney fees by motion in litigation. Because the lender’s

motion for attorney fees in Zimmerman was unopposed and this argument was not raised,

the court did not address or consider it when granting the motion for attorney fees. “A

decision is authority only for the point actually passed on by the court and directly

involved in the case.” (Gomes v. County of Mendocino (1995) 37 Cal.App.4th 977, 985.)

Valencia v. Carrington Mortg. Servs., LLC (U.S. Dist. Ct., Dist. of Hawaii, 2013)

2013 U.S. Dist. LEXIS 88886 (Valencia), cited by Tyler, supports the proposition Wells

14 Fargo cannot prevail on its motion for attorney fees because Wells Fargo’s attorney fees

must be added as debt secured by the security instrument. The court in Valencia denied a

motion for attorney fees brought by defendants Carrington Mortgage Services, LLC and

Deutsche Bank National Trust Company (Bank defendants), after the court dismissed the

plaintiffs’ complaint against Bank defendants. The deed of trust, attorney fee provision

in Valencia contained language essentially identical to that contained in the Senior TD in

the instant case.

In denying the motion for attorney fees, the court in Valencia noted that attorney

fees may be awarded pursuant to an agreement between the parties. But if the nature of

the claim is outside the terms of the attorney fee provision, attorney fees are not

recoverable. (Valencia, supra, 2013 U.S. Dist. LEXIS 88886 at p. 25.) The deed of trust,

attorney fee provision in Valencia stated:

“[‘]If . . . there is a legal proceeding that might significantly affect Lender’s

interest in the Property and/or rights under this Security Instrument . . . Lender

may do and pay for whatever is reasonable or appropriate to protect Lender’s

interest in the Property and rights under this Security Instrument, including . . .

paying reasonable attorneys’ fees to protect its interest in the Property and/or

rights under this Security Instrument . . . .’

“. . . .

“‘Any amounts disbursed by Lender under this Section 9 shall become additional

debt of Borrower secured by this Security Instrument. These amounts shall bear

15 interest at the Note rate from the date of the disbursement and shall be payable,

with such interest, upon notice from Lender or Borrower requesting payment.[’]”

(Valencia, supra, 2013 U.S. Dist. LEXIS 88886 at p. 26; italics added.)

In Valencia, the Bank defendants argued this attorney fee provision was broad

enough to encompass all of the plaintiffs’ claims in the action. (Valencia, supra, 2013

U.S. Dist. LEXIS 88886 at p. 27.) The plaintiffs’ primary claims were that the Bank

defendants violated statutory duties and lacked authority to foreclose because they had no

relationship to the promissory note or mortgage. (Id. at p. 7.) The court in Valencia

agreed that the deed of trust, attorney fee provision was broad enough to encompass all of

the plaintiffs’ claims in the foreclosure action, because it provided for attorney fees in

any “‘legal proceeding that might significantly affect Lender’s interest in the Property

and/or rights under this Security Instrument.’” (Id. at p. 27.)

The Valencia court explained that, had the plaintiffs prevailed, they would have

significantly affected the Bank defendants’ interest in the property and/or rights under the

mortgage. In the plaintiffs’ complaint, the plaintiffs “sought to enjoin foreclosure and

strip the Bank Defendants of their right to enforce the note and mortgage by having the

note, mortgage, assignment of note and mortgage, and all foreclosure notices rescinded

and expunged from the Bureau of Conveyances. Clearly, such remedies would

significantly affect the Bank Defendants’ interest in the Property and rights under the

mortgage.” (Valencia, supra, 2013 U.S. Dist. LEXIS 88886 at pp. 27-28.)

16 Nevertheless, the Valencia court denied the Bank defendants’ motion for attorney

fees because “the mortgage states that any amounts disbursed in protecting the Bank

Defendants’ rights under the mortgage, including for attorneys’ fees, ‘shall become

additional debt of Borrower secured by this Security Instrument . . . and shall be payable,

with such interest, upon notice from Lender or Borrower requesting payment.’

[Citation.] As such, the mortgage does not entitle the Bank Defendants to recover

attorneys’ fees as an award pursuant to the instant litigation. Rather, as provided in the

mortgage, the Bank Defendants may convert the amounts spent on attorney’ fees into

additional debt secured by the mortgage.” (Valencia, supra, 2013 U.S. Dist. LEXIS

88886 at p. 28.) The Valencia court added that, “[a]s such, the Court finds that the

attorneys’ fee provision in the mortgage does not provide an independent basis for an

award of attorneys’ fees in the instant litigation.” (Id. at pp. 28-29.)

We recognize Valencia is not binding precedent here, since we are not bound by

decisions of the federal courts, except for those of the United States Supreme Court.

(People v. $8,921 United States Currency (1994) 28 Cal.App.4th 1226, 1232, fn. 6.)

Valencia, supra, 2013 U.S. Dist. LEXIS 88886 serves as persuasive but not controlling

authority. (People v. Bradley (1969) 1 Cal.3d 80, 86.) In addition, Valencia differs

factually in that the instant case involves foreclosure on a junior deed of trust after the

Senior TD was paid off and extinguished. Wells Fargo therefore, not only cannot recover

attorney fees by motion, but also cannot convert the amounts spent on attorney fees into

additional debt secured by the mortgage because the Senior TD has been extinguished.

17 We nevertheless conclude, as in Valencia, that the Senior TD attorney fee

provision does not provide an independent basis for awarding attorney fees. Therefore

the trial court did not err in denying Wells Fargo’s motion for attorney fees. The instant

action concerns foreclosure of the Junior TD, with the Senior TD already paid off and

extinguished, and the attorney fees provision in the Senior TD states that any attorney

fees recoverable under the Senior TD “shall become additional debt of Borrower secured

by this Security Instrument.” As such, the Senior TD attorney fees provision does not

entitle Wells Fargo to recover attorneys’ fees as an award pursuant to the instant

litigation. (Valencia, supra, 2013 U.S. Dist. LEXIS 88886 at pp. 28-29.)

VI

DISPOSITION

The judgment is affirmed. Tyler is awarded his costs on appeal.

NOT TO BE PUBLISHED

CODRINGTON J.

We concur:

MILLER Acting P. J.

SLOUGH J.