Painter

BACKGROUND

The Foreclosure, the Complaint, and the Summary Judgment Motion In August 2009, Painter’s mother Betty J. Painter (Betty)2 borrowed $550,000 from Francis Realty. The loan was memorialized by a promissory note and secured by a deed of trust against real property in an unincorporated part of Shasta County. The promissory note contained an attorney fee clause by which Betty “promise[d] to pay such sum as the court may fix as attorney’s fees” if an “action be instituted on this Note.” The accompanying deed of trust (entitled “First Deed of Trust with Assignment of Rents”) contains no attorney fee provision. Betty defaulted on the note by failing to make the monthly payments it required and Francis Realty recorded a notice of default and election to sell, and notice of trustee’s sale. Betty filed for bankruptcy protection, which had the effect of delaying the trustee’s sale. Betty then transferred the property to Painter and his wife; Painter and his wife filed for bankruptcy protection, which further delayed the trustee’s sale. Eventually, the trustee sale occurred, and Francis Realty purchased the property at the sale. Painter and his wife, who lived on the property,…