calattorneysfees.com | November 20, 2015
Implied Covenant/Modification Claim Arose Out Of Note And Deed Of Trust
In Bergman v. JP Morgan Chase Bank, N.A., Case No. E060148 (4th Dist., Div. 2 Sept. 30, 2015) (unpublished), borrower won an implied breach of covenant claim, based on a loan modification, against lender, receiving $250,000 in compensatory damages on this and a separate fraud claim. Borrower then moved to recover fees based on entitlement clauses in the note and deed of trust, a request granted by the lower court—although it only awarded $188,100 out of a requested $454,772.23.
The fee award was affirmed on appeal. The appellate court determined that the fees provisions in the note and deed of trust encompassed contractual implied covenant claims, such that the fee award was proper. (Smith v. Home Loan Funding, Inc., 192 Cal.App.4th 1331, 1337 (2011).)
Nancy Duffy McCarron, CBN 164780
Attorney, Real Estate Broker, BBB Arbitrator, CA Notary Public
Certified Forensic Loan Auditor, Property Manager
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