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Rowena L. Shaddox, An Individual v. Wells Fargo

September 5, 2012

ROWENA L. SHADDOX, AN INDIVIDUAL PLAINTIFF,
v.
WELLS FARGO BANK, N.A., A/K/A WACHOVIA MORTGAGE, A DIVISION OF WELLS FARGO BANK, N.A., AND F/K/A WACHOVIA MORTGAGE, FSB, A BUSINESS ENTITY; NDEX WEST, LLC, A BUSINESS ENTITY, AND DOES 1 THROUGH 100, INCLUSIVE,
DEFENDANTS.



ORDER GRANTING DEFENDANT'S MOTION FOR AN AWARD OF ATTORNEYS' FEES

This matter comes before the Court on Defendant Wells Fargo Bank, N.A., successor by merger with Wells Fargo Bank Southwest, N.A., f/k/a Wachovia Mortgage, FSB, f/k/a defendant World Savings Bank, FSB's ("Defendant") Motion for an Award of Attorneys' Fees (Doc. #31) and a Request for Judicial Notice (Doc. #32). Defendant asks the Court to award attorneys' fees in the amount of $9,283.00. Plaintiff Rowena Shaddox ("Plaintiff") did not file an opposition or a statement of non-opposition.*fn1

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff obtained a $374,500.00 loan from Defendant on or 3 around July 10, 2006, to purchase real estate located in 4 Vacaville, California ("the Property"). The loan was 5 memorialized by an Adjustable Rate Mortgage Note ("Note") and 6 secured by a Deed of Trust recorded on July 14, 2006. Plaintiff 7 defaulted on her loan, eventually leading to the initiation of 8 foreclosure proceedings. 9

On December 20, 2011, Plaintiff filed the instant action in Solano County Superior Court alleging seven causes of action:

(1) Fraud; (2) Violation of California Civil Code §§ 2924 et seq., 2923.5 and 2934(a); (3) Intentional Infliction of Emotional Distress; (4) Breach of the Covenant of Good Faith and Fair Dealing; (5) Negligence; (6) Violation of Business and Professions Code §17200; and (7) Quiet Title. Defendant removed the action to this Court on January 30, 2012 (Doc. #1). Defendant filed a Motion to Dismiss (Doc. #13) on February 7, 2012. While that motion was pending, Plaintiff filed an Application to Remand (Doc. #23) on May 17, 2012. On June 20, 2012, the Court granted Defendants' Motion to Dismiss with prejudice and it denied the Application to Remand.

II. OPINION

A. Legal Standard 3

1. Attorneys' Fees

Under the American rule, the prevailing litigant ordinarily 5 is not entitled to collect reasonable attorney's fees from the 6 losing party. Travelers Casualty & Surety Co. of Am. v. Pac. 7 Gas & Elec. Co., 549 U.S. 443, 448 (2007). A statute or 8 enforceable contract allocating attorney's fees, however, can 9 overcome this rule. Id. State law governs the enforceability of attorney's fees in contract provisions. Sec. Mortg. Co. v. Powers, 278 U.S. 149, 153 (1928).

California permits parties to allocate attorney's fees by contract. See Cal. Code Civ. Proc. § 1021. California Civil Code Section 1717 governs the recovery of attorneys' fees pursuant to an underlying contract. The statute "authorizes reasonable attorney's fees '[i]n any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce the contract, shall be awarded either to one of the parties or to the prevailing party.'" Barrientos v. 1801-1825 Morton LLC, 583 F.3d 1197, 1216 (9th Cir. 2009) (quoting Cal. Civ. Code § 1717(a)).

B. Claims for Relief

1. The Note and Deed of Trust

As a preliminary matter, the Court GRANTS Defendant's Request for Judicial Notice ("RJN").

Based on the documents in the RJN, Defendant argues that 2 its right to recover attorneys' fees is set forth in two clauses 3 in the Note and the DOT. ...


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