Burch

Argus Properties, Inc., (Argus) appeals the judgment after a court trial in which Virgil A. Burch was awarded $2,500 damages plus costs and $1,000 attorney fees.

Argus, a duly licensed real estate broker, signed a written contract on August 10, 1973, with Burch in which Argus agreed to get for Burch a $2,545,000 loan. The contract provided for a $10,000 deposit; $5,000 for costs was nonrefundable; $5,000 for an advance fee was to be credited against a 1 percent commitment fee, if and when a loan commitment was made. Argus actually received a deposit of $7,500 of which $5,000 was retained for costs and $2,500, an advance fee, was placed in a trust account. No loan commitment was ever made. By letter Burch requested the return of his deposit on July 8, 1974. On July 9, 1974, the $2,500 was transferred to a second trust account with a different trustee. Argus paid Burch from this second account on September 2, 1974.

During the period Argus held the advance fee it made no accounting to Burch. Business and Professions Code section 10146 provides:

Argus argues that if section 10146 applies then the amount of damages and award of attorney fees was an abuse of discretion. It…