Melody Chacker v. JPMorgan Chase Bank. N.A.

Pursuant to California Rules of Court, rules 8.1105(b) and

8.1110, this opinion is certified for publication with the exception

of Parts II.A–II.B and Part II.D.



Plaintiff and appellant Melody Chacker (plaintiff)

refinanced a loan on her home and then failed to make required

loan payments, which triggered non-judicial foreclosure

proceedings. Plaintiff sued to stop the foreclosure process and

the trial court entered a judgment of dismissal after sustaining

demurrers to plaintiff’s suit—a judgment we affirmed. The trial

court then ordered plaintiff to pay the attorney fees of defendants

and respondents JPMorgan Chase Bank, N.A. (Chase) and

California Reconveyance Company (CRC), finding certain

provisions in the deed of trust she signed authorized a fees

award. We consider whether CRC and Chase (collectively, the

Chase Defendants) can invoke these attorney fees provisions

despite having assigned the trust deed to another financial

institution, whether the trial court properly ordered payment of

fees rather than ordering the fees added to the loan balance due,

and whether the Rosenthal Fair Debt Collections Practices Act

(Rosenthal Act) separately authorizes a fee award.

I. BACKGROUND

A. Non-Judicial Foreclosure and Plaintiff’s Lawsuit

Plaintiff refinanced her home in 2006 and executed a

promissory note for approximately $1,700,000. Repayment of the

loan was secured by a deed of trust on plaintiff’s property.

Washington Mutual Bank, FA was the initial lender, and CRC

was the initial trustee. Plaintiff’s promissory note was placed

into a mortgage-backed security trust entitled “WaMu Mortgage

Pass-Through Certificates Series 2006-AR9 Trust” (the Trust).

In 2008, the Federal Deposit Insurance Corporation seized

the assets of Washington Mutual Bank and transferred them to

Chase. Chase subsequently assigned its beneficial interest in the

3

deed of trust to Bank of America, successor by merger to La Salle

Bank, as trustee for the Trust.

Plaintiff fell behind on payments due under the promissory

note. In June 2010, as permitted by the trust deed she signed,

CRC recorded a notice of default and election to sell her property.

CRC recorded the first notice of trustee’s sale in September 2010,

and additional notices thereafter. So far as the record reveals,

plaintiff’s property has not yet been sold at a foreclosure auction.

Plaintiff sued the Chase Defendants (and others) to stop

the foreclosure sale in June 2014.1

She filed the operative third

amended complaint in September 2015. The operative complaint

asserted four causes of action: (1) a request for stay of nonjudicial

foreclosure and injunctive relief predicated on an

asserted violation of Civil Code section 2923.5, (2) quiet title, (3)

unlawful debt collection practices, and (4) declaratory and

injunctive relief.

The Chase Defendants (and the others) demurred to the

operative complaint. The trial court sustained the demurrers

without leave to amend. Plaintiff appealed, and we affirmed the

trial court’s ruling. (Chacker v. JPMorgan Chase Bank, N.A.

(Dec. 22, 2017, B272380) [nonpub. opn.] (Chacker I).)

B. The Pertinent Provisions of the Trust Deed and

Promissory Note

Plaintiff’s promissory note identifies Washington Mutual

Bank as the “Lender,” and the note states the lender or anyone



1 Select Portfolio Servicing, Inc. and U.S. Bank as Trustee for

the Trust were defendants in the underlying action but are not

parties to this appeal.

4

who takes the note by transfer and is entitled to payments under

the note is the “Note Holder.”

Plaintiff’s deed of trust similarly identifies Washington

Mutual Bank as the “Lender,” and it identifies CRC as the

“Trustee.” Plaintiff and her former husband are dubbed the

“Borrower.” The deed of trust contains two provisions pertinent

to this appeal—section 9, which addresses “Protection of Lender’s

Interest in the Property and Rights Under this Security

Instrument” and section 14, which addresses “Loan Charges.”

In relevant part, section 9 provides: “If (a) Borrower fails to

perform the covenants and agreements contained in this Security

Instrument, [or] (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

bankruptcy, probate, for condemnation or 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 and appropriate to

protect Lender’s interest in the Property and rights under this

Security Instrument . . . . Lender’s actions can include, but are

not limited to . . . appearing in court . . . and . . . paying

reasonable attorneys’ fees to protect its interest in the Property

and/or rights in the Security Instrument . . . .” Section 9 of the

trust deed further states: “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 disbursement and shall

be payable, with such interest, upon notice from Lender to

Borrower requesting payment.”

5

The other provision relevant to the question of attorney

fees, section 14, states in pertinent part: “Lender may charge

Borrower fees for services performed in connection with

Borrower’s default, for the purpose of protecting Lender’s interest

in the Property and rights under this Security Instrument,

including, but not limited to, attorney fees . . . .”

C. The Chase Defendants’ Motion for Attorney Fees

The Chase Defendants moved for attorney fees pursuant to

sections 9 and 14 of the deed of trust, as well as statutory

provisions enacted as part of the Rosenthal Act. They argued an

award of attorney fees was appropriate under these sections of

the trust deed—even though the trust deed had been assigned to

another financial institution—under Civil Code section 1717.

2



The Chase Defendants separately argued the Rosenthal Act also

provided independent grounds for an attorney fee award because

they qualified as prevailing creditors and plaintiff had not

prosecuted her lawsuit in good faith. The Chase Defendants

asked the trial court to award them $46,827.40, which they

contended was a reasonable amount.



2 The statute provides that “[i]n any action on a contract”

containing a provision authorizing a party to the contract to

recover attorney fees incurred to enforce the contract, the

prevailing party shall be entitled to reasonable attorney fees

“whether he or she is the party specified in the contract or not.”

(Civ. Code, § 1717, subd. (a).)

6

Plaintiff opposed the attorney fees motion.

3

She argued the

Chase Defendants could not claim fees under either the deed of

trust or the promissory note because the documents gave the

“Lender” the right to attorney fees, neither of the Chase

Defendants then qualified as the lender, and the Chase

Defendants were not otherwise parties to the contracts. Plaintiff

further argued that even if the Chase Defendants could seek

contractual attorney fees under the trust deed, the relevant deed

provisions required such fees to be added to the balance of their

loan rather than issued as a separate judgment. Plaintiff also

disputed the Rosenthal Act provided a separate basis to seek

attorney fees, reasoning the Chase Defendants did not qualify as

“creditors” under the act and the Rosenthal Act cause of action

she included in the operative complaint was brought in good faith

(because the law on Rosenthal Act liability was unsettled).

The trial court granted the motion for attorney fees and

ordered plaintiff to pay the Chase Defendants the full amount

sought, $46,827.40. The trial court found Civil Code section 1717

was “broad enough to extend to the attorney fee provisions

contained in those documents [i.e., the deed of trust and

promissory note] to [the Chase] Defendants.” Because plaintiff

sought to preclude all the defendants from enforcing the

promissory note and the deed of trust’s power of sale, the court

reasoned that ordering plaintiff to pay the Chase Defendant’s

attorney fees was “appropriate.”



3 Plaintiff did not contest the amount of fees being sought as

unreasonable. Rather, she argued the Chase Defendants were

not entitled to an order compelling her to pay any amount of fees.

7

The trial court disagreed with plaintiff’s contention that

any award of attorney fees must be added to the balance of her

loan. The court’s ruling on this point was brief, stating only that

“Plaintiff cites to no case authority for that proposition” and “the

Court does not agree that Section 9 of the Deed of Trust applies

in that respect.” The trial court did not discuss the Chase

Defendants’ request for fees pursuant to the Rosenthal Act.

[Parts II.A through II.B, below, are deleted from

publication. See post at page 13 for where publication is

to resume.]

II. DISCUSSION

Plaintiff challenges two aspects of the trial court’s fees

order: (1) the finding that the Chase Defendants are entitled to

contractual attorney fees under sections 9 and 14 of the trust

deed even though they are neither the “lender” nor signatories to

the agreements; and (2) the issuance of an order to pay attorney

fees rather than an order adding any fees awarded to the balance

due on the promissory note. Plaintiff also disputes fees can be

awarded on the Rosenthal Act rationale the trial court did not

reach.

We disagree with plaintiff’s first contention but agree with

the second. Though the Chase Defendants were not signatories

to the loan documents, they stood in the shoes of a signatory and

plaintiff sued them as though they were parties to the deed of

trust. The mutuality of remedy provided by Civil Code section

1717 thus entitles the Chase Defendants to seek attorney fees

under the trust deed. On the other hand, plaintiff is correct that

the attorney fee provisions do not authorize a separate award of

8

fees but rather allow the Chase Defendants to add their fees to

the underlying debt. Because we conclude the Rosenthal Act

provides no proper independent basis for awarding attorney fees,

we will reverse the trial court’s order for payment of fees and

remand to permit the court to refashion the order to require the

fee amount sought by the Chase Defendants to be added to the

loan balance.

A. Legal Background: Contractual Attorney Fee Awards

“Under the American rule, each party to a lawsuit

ordinarily pays its own attorney fees. [Citation.] Code of Civil

Procedure section 1021, which codifies this rule, provides:

‘Except as attorney’s fees are specifically provided for by statute,

the measure and mode of compensation of attorneys and

counselors at law is left to the agreement, express or implied, of

the parties . . . .’ In other words, section 1021 permits parties to

‘“contract out” of the American rule’ by executing an agreement

that allocates attorney fees. [Citations.] Thus, ‘“[p]arties may

validly agree that the prevailing party will be awarded attorney

fees incurred in any litigation between themselves, whether such

litigation sounds in tort or in contract.”’ [Citations.]” (Mountain

Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th

744, 751 (Mountain Air).) Parties may also contractually “limit

the recovery of fees only to claims arising from certain

transactions or events, or award them only on certain types of

claims.” (Brown Bark III, L.P. v. Haver (2013) 219 Cal.App.4th

809, 818 [“In the absence of a statute authorizing the recovery of

attorney fees, the parties may agree on whether and how to

allocate attorney fees”] (Brown Bark).)

9

Civil Code section 1717 authorizes courts to enforce

contractual attorney fee clauses, and to enforce them in a

particular manner. Civil Code section 1717, subdivision (a)

provides in pertinent part: “In any action on a contract, where

the contract specifically provides that attorney’s fees and costs,

which are incurred to enforce that contract, shall be awarded

either to one of the parties or to the prevailing party, then the

party who is determined to be the party prevailing on the

contract, whether he or she is the party specified in the contract

or not, shall be entitled to reasonable attorney’s fees in addition

to other costs.”

In other words, when a contract provides for an award of

attorney fees to one party but not the other, Civil Code section

1717 makes the right reciprocal. (Santisas v. Goodin (1998) 17

Cal.4th 599, 610-611 [“[Civil Code s]ection 1717 makes an

otherwise unilateral right reciprocal, thereby ensuring mutuality

of remedy, . . .‘when the contract provides the right to one party

but not to the other’”].) “In this situation, the effect of [Civil

Code] section 1717 is to allow recovery of attorney fees by

whichever contracting party prevails, ‘whether he or she is the

party specified in the contract or not.’” (Id. at p. 611.)

Significantly for our purposes, Civil Code Section 1717 is also

“interpreted to further provide a reciprocal remedy for a

nonsignatory defendant, sued on a contract as if he were a party

to it, when a plaintiff would clearly be entitled to attorney’s fees

should he prevail in enforcing the contractual obligation against

the defendant.” (Reynolds Metals Co. v. Alperson (1979) 25

Cal.3d 124, 128; see also Cargill, Inc. v. Souza (2011) 201

Cal.App.4th 962, 966 [nonsignatory may recover attorney fees

10

under contract where the nonsignatory “‘stands in the shoes of a

party to the contract’”] (Cargill).)

A trial court’s determination of “‘the propriety or amount of

statutory attorney fees to be awarded’” is reviewed under an

abuse of discretion standard, “‘but a determination of the legal

basis for an attorney fee award is a question of law to be reviewed

de novo.’ [Citations.]” (Mountain Air, supra, 3 Cal.5th at p. 751.)

The de novo standard applies to the legal issues plaintiff raises in

this appeal.

B. The Chase Defendants May Invoke the Fee Provisions

in the Contracts

Both attorney fees provisions in the trust deed that the

Chase Defendants invoked state the “Lender” is owed attorney

fees in certain circumstances. The “Lender” identified in the deed

of trust was Washington Mutual Bank, not Chase or CRC. While

it is therefore true the Chase Defendants were not themselves

signatories to the promissory note or deed of trust, CRC was

named the trustee in the deed of trust and remained the trustee

until 2014. Additionally, the record reflects Washington Mutual

Bank was seized by the Federal Deposit Insurance Corporation

and certain assets and liabilities, including all mortgage

servicing rights and obligations, were sold to Chase in 2008.

Chase remained the servicer of plaintiff’s loan until 2013.

Under the circumstances, the Chase Defendants were

entitled to fees under Civil Code section 1717 even though

neither was the original lender. The Chase Defendants, as the

loan servicer and trustee of the deed of trust during a portion of

the relevant time period, were agents of the lender who had

authority to enforce the lender’s rights under the deed of trust

11

and note. Plaintiff sued the Chase Defendants for taking actions

authorized by the deed of trust during their tenure as loan

servicer and trustee, and plaintiff’s suit effectively treated the

Chase Defendants as if they were parties to the loan contracts

and sought to have the loan declared invalid. The Chase

Defendants thus stood in the shoes of a party to the contract and

could recover attorney fees as provided by the contract even

though they were not parties themselves. (See, e.g., Ng v. US

Bank, NA (N.D.Cal. Nov. 30, 2016, No. 15-cv-04998-KAW) 2016

U.S.Dist.LEXIS 166054, at *16-17 [successor in interest to note

holder and loan servicer could recover attorney fees under Civil

Code section 1717 because they were sued as if they were parties

to contract and they stood in shoes of party]; see generally

Cargill, supra, 201 Cal.App.4th at p. 966 [although fees are

generally awarded only when a suit is between the signatories to

a contract, an exception applies where a non-signatory party

stands in the shoes of a party to the contract].) Although the

attorney fee provisions are unilateral in favor of the lender only,

the “mutuality of remedy” provided by Civil Code section 1717

means the right created by this provision was available to

plaintiff and any non-signatories, like the Chase Defendants, who

ultimately prevailed in an action on the contract.4

(See Brown

Bark, supra, 219 Cal.App.4th at pp. 818-819.)



4 Plaintiff also argues the attorney fee provisions in the deed

of trust must be construed strictly to cover only the specified

“lender,” Washington Mutual Bank, because the deed of trust

was a contract of adhesion. The record provides no adequate

basis to believe the loan documents were contracts of adhesion.

Even if they were, plaintiff offers no persuasive argument for why

12

The cases plaintiff cites do not compel a contrary result. It

is true, as a general matter, that the terms of an attorney fee

provision may be so narrow that they only apply to the

signatories of the contract (Blickman Turkus, LP v. MF

Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 896 [fee

provision allowing fees in “‘any litigation between the parties

hereto’”]), but the attorney fee clause here is not so narrow.

Similarly, though plaintiff cites cases holding courts must

analyze the attorney fee provisions in a contract before

determining fees may be awarded, these same cases acknowledge

non-signatories can be eligible for fees based on contractual

clauses in certain circumstances. (See, e.g., Brown Bark, supra,

219 Cal.App.4th at p. 819; Super 7 Motel Associates v.

Wang (1993) 16 Cal.App.4th 541, 544-545.)

Topanga and Victory Partners v. Toghia (2002) 103

Cal.App.4th 775 (Topanga), upon which plaintiff chiefly (and

incorrectly)

5

relies, is also inapposite. The holding of that case,

which has no bearing on the question at hand, is best described

by the Topanga court itself: “The issue presented by this appeal

is whether a defendant who is not a party to a contract but is

sued for breach of that contract and various related tort and



Civil Code section 1717 would apply differently to contracts of

adhesion.

5 Plaintiff’s reply brief represents the following quote can be

found at page 786 of the Topanga opinion: “‘Entities that are not

parties to a contract, or who are not intended third party

beneficiaries, have no power to enforce attorney fees clauses in

the contract.’” Plaintiff is mistaken—no such language appears

on that page, or any page, of the Topanga court’s opinion.

13

statutory causes of action may recover attorney fees incurred in

defending the noncontract causes of action if the plaintiff files a

voluntary dismissal with prejudice. We hold that he cannot.”

(Id. at p. 778.) Plaintiff does not dispute her lawsuit qualifies as

an “action on a contract” for purposes of Civil Code section 1717

(nor does she contest the trial court’s calculation of reasonable

attorney fees). Topanga’s holding that a non-party may not

recover attorney fees on non-contract causes of action is thus no

help to plaintiff.

[Part II.C, below, is to be published.]

C. The Deed of Trust Authorizes the Addition of Attorney

Fees to the Loan Amount, Not a Separate Award to

Pay Fees

The Chase Defendants sought attorney fees under sections

9 and 14 of the deed of trust. While each section provides the

lender may seek reimbursement for attorney fees paid in certain

circumstances, neither authorizes a court to enter an attorney fee

award order that obligates the borrower to pay fees independent

of the borrower’s repayment obligation under the deed of trust

and associated promissory note.

Section 9 of the deed of trust provides the “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 the

Security Instrument . . . .” Section 9 further specifies, however,

that any amounts disbursed by Lender for this purpose “shall

become additional debt of Borrower secured by this Security

14

Instrument” and that the “amounts shall bear interest at the

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

with such interest, upon notice from Lender to Borrower

requesting payment.” The plain text of these two clauses

authorizes attorney fees to be added to the loan amount; section 9

does not provide for a separate award of attorney fees.

In a paragraph headed “Loan Charges,” section 14 of the

deed of trust states “Lender may charge Borrower fees for

services performed in connection with Borrower’s default, for the

purpose of protecting Lender’s interest in the Property and rights

under this Security Instrument, including, but not limited to,

attorney fees . . . .” Here again, the plain language of this

provision does not provide for a separate award of attorney fees.

Rather, it entitles the lender to charge the borrower fees, and the

usage of the word “charge,” particularly in combination with the

“Loan Charges” heading and the other clauses in section 14, is

naturally read to permit the lender to add any attorney fees it

may have incurred to the outstanding amount due under the

promissory note. There is no language in section 14 that

indicates the trust deed permits a freestanding contractual

attorney fees award.

Seeking to avoid the conclusion that flows from the text of

these two sections in the deed of trust, the Chase Defendants

argue (1) “no authority” requires adding attorney fees to the

balance of the loan, rather than entering a separate order

directing payment of fees, and (2) because they are no longer the

active servicer or trustee under the trust deed, their attorney fees

were not “amounts disbursed by [the] Lender,” as specified in

section 9. Neither of these arguments is persuasive, and indeed,

15

the latter is contrary to the Chase Defendants’ litigation position

in seeking fees.

Where not authorized by statute, entitlement to attorney

fees derives from the contractual terms chosen. Just as parties

may limit or expand the circumstances under which attorney fees

are awardable (Brown Bark, supra, 219 Cal.App.4th at p. 818),

they may also limit or expand how those attorney fees may be

obtained. Here, the parties to the deed of trust agreed attorney

fees incurred as described under section 9 would become

additional debt secured by the deed of trust. They also agreed

the lender could “charge” the borrower fees for services performed

in connection with the borrower’s default, including attorney fees,

under section 14. As we have explained, the trust deed is

properly read (only) to permit attorney fees to be added to the

borrower’s promissory note obligation, and the terms of the trust

deed itself are all the “authority” that is necessary under the

circumstances.

But there is additional persuasive authority. Although no

published California case has analyzed the import of the trust

deed attorney fee provisions at issue here, multiple federal

district courts have held trust deed provisions similar or identical

to those here do not authorize a separate fee award and instead

only allow the fees to be added to the outstanding balance due

under the promissory note. (E.g., Eisenberg v. Citibank, N.A.

(C.D.Cal. Oct. 11, 2017, No. 2:13-cv-01814-CAS(JPRx)) 2017

U.S.Dist.LEXIS 169182, at *11 [concluding an apparently

identical section 9 in a trust deed “authorize[d] attorneys’ fees to

be added to the borrower’s outstanding debt” and an identical

section 14 permitted the lender to add attorney fees incurred to

the outstanding amount owed, not to render the borrower

16

personally liable for the amounts]; Dufour v. Allen (C.D.Cal. Apr.

20, 2017, No. 14-cv-05616-CAS(SSx)) 2017 U.S.Dist.LEXIS

61229, at *15 [plain terms of identical section 9 of trust deed did

not entitle party to obtain attorney fees through a motion for

attorney fees]; Barba v. Flagstar Bank FSB (C.D.Cal. Sept. 19,

2011, No. CV 10-8023-VBF (VBKx)) 2011 U.S.Dist.LEXIS

163110, at *4 [denying motion for attorney fees where the

“language provides for attorney fees, [but] it specifically provides

for them to accrue as part of the debt instrument itself”]; see also

Valencia v. Carrington Mortg. Servs., LLC (D.Hawaii June 25,

2013, No. CIVIL 10-00558 LEK-RLP) 2013 U.S.Dist.LEXIS

88886, at *27 [deed of trust did not provide an independent basis

for an award of attorney fees where it stated amounts disbursed

in protecting rights under the mortgage “‘shall become additional

debt of Borrower secured by this Security Instrument’”].)

Insofar as the Chase Defendants would contend even these

cases are still insufficient authority, we have one further

rejoinder: every legal proposition has at one time or another been

without authority; novel questions often arise in the law. Going

forward, this opinion will serve as the authority the Chase

Defendants believe is lacking.

As for the Chase Defendants’ argument that adding the

attorney fees amount to the loan balance would be unjustified

because they are no longer the active servicers or trustees of the

deed of trust, Justice Scalia’s observation in another context is

apt: the Chase Defendants “must take the bitter with the sweet.”

(Bailey v. United States (2013) 568 U.S. 186, 206 (conc. opn. of

Scalia, J.).) The Chase Defendants’ argument for why they are

entitled to seek attorney fees in the first place—despite being

non-parties to the contract that serves as the foundation for their

17

fee request—depends on their assertion that they acted as the

lender’s agents and stood in the lender’s shoes.

6

They cannot

repudiate that position merely because the upshot, required by

the terms of the contract on which they rely, is that the fees they

seek to recoup are added to the balance of a loan agreement that

has since been assigned to another financial institution.7

[Part II.D, below, is deleted from publication. See post at

page 19 for where publication is to resume.]

D. The Rosenthal Act Provides No Independent Basis for

Ordering Plaintiff to Pay Attorney Fees

Plaintiff’s operative complaint alleged, in its third cause of

action, that Chase engaged in unlawful debt collection practices

in violation of the Rosenthal Act and an analogous federal



6 At oral argument, counsel for the Chase Defendants

appeared to disavow seeking fees on the ground that the Chase

Defendants stood in the lender’s shoes. However, that is

precisely what the Chase Defendants argued in their motion for

attorney fees filed in the trial court and their respondents’ brief

in this court. The motion for attorney fees, for example, asserted

the Chase Defendants qualified for fees because they were

“nonsignator[ies] stand[ing] in the shoes of a party to the

contract” and “third party beneficiaries of the contract.”

7 Although the result we reach is compelled by the terms of

the trust deed and persuasive case law, a party in the Chase

Defendants’ position, when negotiating with a prospective

assignee of a trust deed, can adjust the consideration given for

the assignment or other terms of the assignment deal to account

for how attorney fees may be recovered when a borrower defaults.

18

statute. We affirmed the trial court’s ruling sustaining Chase’s

demurrer to this cause of action, following California authority

and other cases that hold giving notice of a foreclosure sale does

not constitute debt collection activity under the Rosenthal Act.

(Chacker I, supra, B272380.)

The Rosenthal Act includes a provision authorizing a court

to award reasonable attorney fees to a “prevailing creditor upon a

finding by the court that the debtor’s prosecution or defense of

the action was not in good faith.” (Civ. Code, § 1788.30, subd.

(c).) Chase invokes this provision as an independent ground

justifying an attorney fee award payable by plaintiff, but the

Rosenthal Act’s requirements for an award of attorney fees are

not satisfied here.

Putting aside the issue of whether Chase is a “creditor”

under the statute, plaintiff’s prosecution of her Rosenthal Act

cause of action was undertaken in good faith. We, of course,

disagreed that liability could be had under the statute, but

plaintiff responsibly advanced a colorable argument to the

contrary. (See, e.g., Dowers v. Nationstar Mortg., LLC (9th Cir.

2017) 852 F.3d 964, 970; but see Pfeifer v. Countrywide Home

Loans, Inc. (2012) 211 Cal.App.4th 1250, 1264; Sipe v.

Countrywide Bank (E.D.Cal. 2010) 690 F.Supp.2d 1141, 1151.)

The Rosenthal Act does not authorize an award of attorney fees

to a prevailing defendant under these circumstances.

The order compelling plaintiff to pay $46,827.40 in attorney fees to the Chase Defendants is reversed, and the matter is remanded for the entry of a new order authorizing this amount to be added to the outstanding balance plaintiff owes as the result of her default on the promissory note. The parties shall bear their

own costs on appeal.