Tyler

INTRODUCTION

Defendant Wells Fargo Bank, N.A. (Wells Fargo), as trustee for First Franklin

Mortgage Loan Trust Series 2004-FFH2 Asset Backed Certificates 2004-FFH2 (Asset

Backed Certificates Trust), appeals an order denying Wells Fargo’s motion for an award

of attorney fees. Wells Fargo filed the motion after Wells Fargo was dismissed from a

wrongful foreclosure action brought by Steven Green Tyler (Tyler) against Wells Fargo

and other defendants.

Wells Fargo contends that under Civil Code sections 1021 and 1717, Wells Fargo

is entitled to recover reasonable attorney fees as the prevailing party under a deed of trust

on Tyler’s property (Senior TD). Wells Fargo argues the trial court erred in ruling that

the Senior TD did not authorize Wells Fargo to recover attorney fees incurred in

protecting Wells Fargo’s interests under the Senior TD. Wells Fargo asserts that, even

though the Senior TD was paid off and extinguished prior to the lawsuit, Wells Fargo

could nevertheless recover its attorney fees under the Senior TD. Wells Fargo argues it is

entitled to recover its attorney fees under Civil Code section 1717, because Tyler’s action

involved claims predicated upon a…