*352Plaintiff 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 *353defendants 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 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.
*923unlawful 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.
*354Plaintiff appealed, and we affirmed the trial court's ruling. ( Chacker v. JPMorgan Chase Bank, N.A. (Dec. 22, 2017, B272380)
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 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."
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 *355Rosenthal 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.
Plaintiff opposed the attorney fees motion.
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."
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.
*356II. 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 fees but rather allow the Chase Defendants to add their fees to the *925underlying 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.-B.
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 *357any amounts disbursed by Lender for this purpose "shall become additional debt of Borrower secured by this Security 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, 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 *926may limit or expand the circumstances under which attorney fees are awardable ( Brown Bark , supra , 219 Cal.App.4th at p. 818,
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)
D. The Rosenthal Act Provides No Independent Basis for Ordering Plaintiff to Pay Attorney Fees
DISPOSITION
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.
We concur:
MOOR, J.
KIM, J.
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.
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).)
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.
See footnote *, ante .
Hart v. Clear Recon Corp. (2018)
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."
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.
See footnote *, ante .