                                                             FILED
                                                               MAR 07 2014
 1                                                        SUSAN M. SPRAUL, CLERK
                                                            U.S. BKCY. APP. PANEL
 2                                                          OF THE NINTH CIRCUIT


 3                  UNITED STATES BANKRUPTCY APPELLATE PANEL
 4                            OF THE NINTH CIRCUIT
 5   In re:                        )     BAP No.     NC-13-1119-KiDJu
                                   )
 6   ELAINE L. BROSIO,             )     Bk. No.     12-57468-SLJ
                                   )
 7                  Debtor.        )
                                   )
 8                                 )
                                   )
 9   ELAINE L. BROSIO,             )
                                   )
10                  Appellant,     )
                                   )     O P I N I O N
11   v.                            )
                                   )
12   DEUTSCHE BANK NATIONAL        )
     TRUST COMPANY,                )
13                                 )
                    Appellee.      )
14   ______________________________)
15                Argued and Submitted on February 20, 2014,
                          at San Francisco, California
16
                             Filed - March 7, 2014
17
                 Appeal from the United States Bankruptcy Court
18                   for the Northern District of California
19            Hon. Stephen L. Johnson, Bankruptcy Judge, Presiding
20
21
22   Appearances:    Jim Erickson, Esq. of the Mlnarik Law Group, Inc.
                     argued for appellant, Elaine L. Brosio; Steven K.
23                   Linkon, Esq. of RCO Legal, PS argued for appellee,
                     Deutsche Bank National Trust Company.
24
25   Before: KIRSCHER, DUNN and JURY, Bankruptcy Judges.
26
27
28
 1   KIRSCHER, Bankruptcy Judge:
 2
 3           Debtor Elaine L. Brosio ("Brosio") appeals an order denying
 4   her motion for attorney's fees on the basis that she was not the
 5   prevailing party under CAL. CIV. CODE § 1717 and that the fees
 6   requested were not reasonable.      We AFFIRM.
 7                  I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
 8           Brosio filed a chapter 131 bankruptcy case on October 16,
 9   2012.       Among the assets was Brosio's residence.   In connection
10   with the residence, Brosio had executed a note ("Note") and deed
11   of trust ("DOT") in January 2007 in favor of former lender, Paul
12   Financial, LLC.      Appellee Deutsche Bank National Trust Company
13   ("Deutsche Bank") recorded the assignment of the DOT on November
14   9, 2012.
15           Paragraph 9 of the DOT, "Protection of Lender's Interest in
16   the Property and Rights Under this Security Instrument," provides,
17   in relevant part:
18           If (a) Borrower fails to perform the covenants and
             agreements contained in this Security Instrument; (b)
19           there is a legal proceeding that might significantly
             affect Lender's interest in the Property and/or rights
20           under this Security Instrument (such as a proceeding in
             bankruptcy, probate, for condemnation or forfeiture, for
21           enforcement of a lien which may attain priority over this
             Security Instrument, or to enforce laws or regulations)
22           . . . then Lender may do and pay for whatever is
             reasonable or appropriate to protect Lender's interest in
23           the Property and rights under this Security Instrument,
             including protecting and/or assessing the value of the
24           Property, and securing and/or repairing the Property.
             Lender's actions can include, but are not limited to:
25           (a) paying any sums secured by a lien which has priority
             over this Security Instrument; (b) appearing in court;
26
27           1
             Unless specified otherwise, all chapter, code and rule
     references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
28   the Federal Rules of Bankruptcy Procedure, Rules 1001-9037.

                                         -2-
 1           and (c) paying reasonable attorneys' fees to protect its
             interest in the Property and/or rights under this
 2           Security Instrument, including its secured position in a
             bankruptcy proceeding . . . . Any amounts disbursed by
 3           Lender under this Section 9 shall become additional debt
             of Borrower secured by this Security Instrument.
 4
 5   Paragraph 14 of the DOT, "Loan Charges," provides, in relevant
 6   part:
 7           Lender may charge Borrower fees for services performed in
             connection with Borrower's default, for the purpose of
 8           protecting Lender's interest in the Property and rights
             under this Security Instrument, including, but not
 9           limited to, attorneys' fees, property inspection and
             valuation fees . . . .
10
11   Paragraph 22 of the DOT, "Acceleration; Remedies," provides, in
12   relevant part:
13           Lender shall be entitled to collect all expenses incurred
             in pursuing the remedies provided in this Section 22,
14           including, but not limited to, reasonable attorneys' fees
             and costs of title evidence.
15
16   Finally, Paragraph 7(E) of the Note, "Borrower's Failure to Pay as
17   Required," provides:
18           If the Note Holder has required me to pay immediately in
             full as described above, the Note Holder will have the
19           right to be paid back by me for all of its costs and
             expenses in enforcing this Note to the extent not
20           prohibited by applicable law. Those expenses include,
             for example, reasonable attorneys' fees.
21
22           Loan servicer GMAC Mortgage, LLC filed a proof of claim
23   ("POC") on behalf of Deutsche Bank, asserting a secured claim for
24   $587,050.61.     The amount claimed in the POC included the principal
25   balance of $585,771.36, $854.25 in interest, and $425.00 for
26   "attorney fees for filing proof of claim, reviewing plan and
27   filing request for special notice[.]"     Brosio was current in her
28   mortgage payments at the time the POC was filed.

                                        -3-
 1        Brosio filed a one-page form objection to the POC, disputing
 2   only the attorney fee of $425.00 ("Claim Objection").   Brosio
 3   contended the fees were "inappropriate" and "were not justified by
 4   Creditor's need to assert their [sic] property rights, in that
 5   Debtor is current in payments and has not given any indication
 6   that Creditor's interest in the property is at risk or that
 7   foreclosure will become an option for Creditor."   No hearing was
 8   requested, set or held for the Claim Objection.
 9        Deutsche Bank subsequently filed an amended POC removing the
10   $425.00 attorney fee.   Brosio's counsel contacted counsel for
11   Deutsche Bank seeking reimbursement for the $865.00 she incurred
12   in attorney's fees filing the Claim Objection.    Deutsche Bank
13   declined to pay the fees.
14   A.   Brosio's motion for attorney's fees
15        On January 24, 2013, Brosio moved for an order awarding her
16   attorney's fees and costs "for her successful objection" to the
17   POC ("Fee Motion").   Brosio argued that because her objection to
18   the $425.00 attorney fee prompted Deutsche Bank to file an amended
19   POC removing the fee (thus implicitly withdrawing the original
20   POC), she was "the prevailing party in an action on a contract"
21   and was therefore entitled to fees and costs under CAL. CIV. CODE P.
22   ("CCP") §§ 1032 and 1033.5(a)(10), and CAL. CIV. CODE ("CCC")
23   § 1717.   Brosio based her claim on the attorney's fees provisions
24   found in Paragraphs 9, 14 and 22 of the DOT and Paragraph 7(E) of
25   the Note.
26        Recognizing that no hearing or further litigation occurred in
27   connection with her Claim Objection, Brosio argued that California
28   law still allowed for her fees as the "prevailing party," citing

                                     -4-
 1   Hsu v. Abbara, 9 Cal. 4th 863, 877 (1995), which held that a party
 2   may "be found to be a prevailing party if it is clear that the
 3   party has otherwise achieved its main litigation objective," and
 4   Scott Co. v. Blount, Inc., 20 Cal. 4th 1103, 1109 (1999), which,
 5   relying on Hsu, held:     "When a party obtains a simple, unqualified
 6   victory by completely prevailing on or defeating all contract
 7   claims in the action and the contract contains a provision for
 8   attorney fees, section 1717 entitles the successful party to
 9   recover reasonable attorney fees incurred in prosecution or
10   defense of those claims."    Brosio cited two additional unpublished
11   cases she contended supported her Fee Motion:     Moran v. Deutsche
12   Bank Nat'l Trust Co. (In re Moran), 2012 WL 6645025 (Bankr. D.
13   Haw. Dec. 20, 2012); and Aurora Loan Servs., LLC v. Guzman, 2012
14   WL 359684 (N.D. Cal. Feb. 2, 2012).2
15        Brosio conceded that no "prevailing party" exists where the
16   action has been voluntarily dismissed or dismissed pursuant to a
17   settlement of the case.    CCC § 1717(b)(2).3   However, Brosio
18
          2
19           Brosio argued that in Moran, the bankruptcy court awarded
     attorney's fees to a debtor (under Hawaii's version of CCC § 1717)
20   for objecting to a proof of claim that was later withdrawn, based
     on an attorney's fee provision in the note and deed of trust. In
21   Guzman, the district court affirmed the bankruptcy court's award
     of fees to a debtor under CCC § 1717 who had lost a stay violation
22   action against the creditor, but prevailed in reducing the
     creditor's proof of claim by several hundred dollars for improper
23   overcharges. The district court determined that the stay
     violation action could be viewed as an action "on a contract"
24   within the meaning of CCC § 1717, because debtor had also alleged
     that no contractual basis existed for the creditor to impose the
25   charges in the first place.
          3
26            CCC § 1717(b)(2) provides:
27        Where an action has been voluntarily dismissed or dismissed
          pursuant to a settlement of the case, there shall be no
28                                                       (continued...)

                                       -5-
 1   argued that because she, as the objector, was in the position of
 2   "plaintiff," the voluntary withdrawal/amendment of the POC by
 3   "defendant" Deutsche Bank was not a voluntary dismissal.
 4        In support of her Fee Motion, Brosio's counsel submitted a
 5   declaration setting forth the time spent on the matter by various
 6   firm members.   In addition to the $865.00 in fees Brosio incurred
 7   in filing her Claim Objection, she sought $3,010.00 incurred
 8   preparing the Fee Motion and related papers and $1,400.00 for her
 9   anticipated reply to Deutsche Bank's response and hearing
10   attendance, for a total request of $5,265.00.4
11        Deutsche Bank opposed the Fee Motion, contending that Brosio
12   was not entitled to attorney's fees under CCC § 1717 because she
13   had not "prevailed" in her Claim Objection, as no order sustaining
14   her objection was entered, and because her Claim Objection was not
15   a "successful" contested matter.   Deutsche Bank argued that its
16   claimed $425.00 attorney fee was supported by Paragraph 9 in the
17   DOT, which authorized such charges due to Brosio's bankruptcy
18   filing, and that it only amended the POC removing the fee as a
19   courtesy and in the interest of conserving judicial resources; it
20   was not an admission of wrongdoing.
21        In her reply, Brosio contended that no "order" had to be
22   entered on the Claim Objection for her to be entitled to fees
23   under CCC § 1717.   Brosio argued that even if Deutsche Bank's
24   $425.00 attorney fee was justified, the claim was implicitly
25
26
          3
           (...continued)
27        prevailing party for purposes of this section.
28        4
              The requested amounts add to $5,275.50.

                                      -6-
 1   withdrawn and an amended claim was filed.    Therefore, argued
 2   Brosio, she "prevailed" because it was clear she had achieved her
 3   main litigation objective of removal of the fee.    In any event,
 4   Brosio argued that Deutsche Bank could not rely on Paragraph 9 of
 5   the DOT to justify its fees; she was not in default on the Note
 6   nor did she present any risk of default, so Deutsche Bank had no
 7   need to protect its interest in the collateral by filing a proof
 8   of claim.   Lastly, Brosio argued that Deutsche Bank should have
 9   accepted her reasonable settlement offer of $865.00.    Attached to
10   Brosio's reply was a declaration from counsel asserting that her
11   fees now totaled $6,535.00.
12   B.   The bankruptcy court's ruling on the Fee Motion
13        A hearing on the Fee Motion was held on February 21, 2013.
14   After brief argument by the parties, the bankruptcy court read its
15   oral ruling into the record.   The court began by noting that it
16   "never considered the [Claim Objection]" and "made no rulings on
17   the appropriateness or the legal sufficiency of either the [POC],
18   the amended [POC], or the [Claim Objection]."     Hr'g Tr. (Feb. 21,
19   2013) 5:7-11.   After reviewing the language of CCC § 1717(a), the
20   court then stated that two questions were presented by the Fee
21   Motion:   Was Brosio the prevailing party?   And, were the requested
22   fees reasonable?
23        The bankruptcy court found that Brosio was not the prevailing
24   party for two reasons.   First, according to the Note, Deutsche
25   Bank was entitled to charge the $425.00 attorney's fee.    Id. at
26   6:23-7:5.   Second, the amended POC, which removed the $425.00 fee
27   but still sought over $500,000 from Brosio, was "not an
28   unmitigated win for [Brosio]."   Id. at 7:5-16.    The court

                                      -7-
 1   distinguished Moran and Guzman as either factually dissimilar or
 2   not precedential in any event.    The court also found that Brosio's
 3   requested fees were not reasonable; the almost $5,600.00 she
 4   sought was disproportionate to the $425.00 in fees to which she
 5   objected.
 6        The bankruptcy court entered an order denying Brosio's Fee
 7   Motion on February 27, 2013 ("Fee Order").      This timely appeal
 8   followed.
 9                               II. JURISDICTION
10        The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334
11   and 157(b)(2)(A).   We have jurisdiction under 28 U.S.C. § 158.
12                                 III. ISSUES
13   1.   Did the bankruptcy court err in determining that Brosio was
14   not the prevailing party?
15   2.   Did the bankruptcy court erroneously determine the
16   reasonableness of Brosio's requested fees as an element in the
17   analysis of whether any fees at all should be awarded?
18                          IV. STANDARDS OF REVIEW
19        We review a bankruptcy court's refusal to award attorney's
20   fees for an abuse of discretion.    Renfrow v. Draper, 232 F.3d 688,
21   693 (9th Cir. 2000); Dinan v. Fry (In re Dinan), 448 B.R. 775, 783
22   (9th Cir. BAP 2011).   "[A] court's decision that there was no
23   'prevailing party on the contract' is subject to review under the
24   abuse of discretion standard of review."       City of Emeryville v.
25   Robinson, 621 F.3d 1251, 1266 (9th Cir. 2010)(citations omitted).
26   A bankruptcy court abuses its discretion if it applied the wrong
27   legal standard or its factual findings were illogical, implausible
28   or without support in the record.       TrafficSchool.com, Inc. v.

                                       -8-
 1   Edriver Inc., 653 F.3d 820, 832 (9th Cir. 2011).
 2        The bankruptcy court's application and interpretation of
 3   California law will be reviewed de novo.    Viceroy Gold Corp. v.
 4   Aubry, 75 F.3d 482, 488 (9th Cir. 1996).
 5        We may affirm on any ground supported by the record.     Shanks
 6   v. Dressel, 540 F.3d 1082, 1086 (9th Cir. 2008).
 7                               V. DISCUSSION
 8   A.   CCC § 1717
 9        CCC § 1717 provides a basis for a party to recover attorney's
10   fees incurred in litigation of a contract claim.   It provides, in
11   relevant part:
12          (a) In any action on a contract, where the contract
          specifically provides that attorney's fees and costs,
13        which are incurred to enforce that contract, shall be
          awarded either to one of the parties or to the prevailing
14        party, then the party who is determined to be the party
          prevailing on the contract, whether he or she is the
15        party specified in the contract or not, shall be entitled
          to reasonable attorney's fees in addition to other
16        costs. . . . Reasonable attorney's fees shall be fixed by
          the court, and shall be an element of the costs of suit.
17
            (b)(1) The court, upon notice and motion by a party,
18        shall determine who is the party prevailing on the
          contract for purposes of this section, whether or not the
19        suit proceeds to final judgment. Except as provided in
          paragraph (2), the party prevailing on the contract shall
20        be the party who recovered a greater relief in the action
          on the contract. The court may also determine that there
21        is no party prevailing on the contract for purposes of
          this section.
22
23   CCC § 1717(a), (b)(1).
24        Attorney's fees awarded under CCC § 1717 are specifically
25   allowed as a recoverable cost under CCP §§ 1032 and 1033.5.      CCP
26   § 1033.5(c)(5).5   CCC § 1717 creates a reciprocal right to recover
27
          5
28            CCP § 1033.5(c)(5) provides, in relevant part:
                                                           (continued...)

                                      -9-
 1   attorney's fees as costs in a dispute over a contract containing
 2   an attorney fee clause, regardless of whether the attorney fee
 3   clause provision in the contract would have allowed for reciprocal
 4   recovery.    Santisas v. Goodin, 17 Cal. 4th 599, 610-11 (1998).
 5   B.   The bankruptcy court did not err in determining that Brosio
          was not the prevailing party.
 6
 7        Brosio contends the bankruptcy court erred in determining she
 8   was not the "prevailing party."    Specifically, she contends that
 9   her sole litigation objective was to remove the $425.00 attorney
10   fee from the amount claimed by Deutsche Bank in its POC, and by
11   Deutsche Bank amending its POC to remove the fee, it implicitly
12   withdrew its original claim.   Therefore, Brosio contends that she
13   clearly and unequivocally prevailed on the sole issue litigated in
14   the action on the contract.
15        Brosio argues that the size of the mortgage in comparison to
16   the victory on the fees was of no relevance because the "action on
17   the contract" was not an action on Deutsche Bank's entire claim,
18   it was on the sole issue of the attorney's fee.   She contends the
19   bankruptcy court erred by equating "action on the contract" with
20   the entire claim, rather than the discrete legal proceeding over
21   the disputed fee.   Brosio also argues that lack of an order on her
22   Claim Objection was of no importance to the issue of prevailing
23
          5
24         (...continued)
25        (c) Any award of costs shall be subject to the following:
26        . . .
27        (5) . . . Attorney's fees awarded pursuant to Section 1717 of
          the Civil Code are allowable costs under Section 1032 of this
28        code as authorized by subparagraph (A) of paragraph (10) of
          subdivision (a).

                                       -10-
 1   party.
 2        Deutsche Bank contends that, in addition to Brosio failing to
 3   submit any evidence in support of her Claim Objection, she could
 4   not be the "prevailing party" because the bankruptcy court never
 5   rendered any decision on the Claim Objection or the POC; hence, no
 6   party obtained a "victory" or "unqualified win" on the submitted
 7   claim.   We agree.
 8        Determination of "prevailing party" for the purpose of
 9   reciprocal attorney's fees in California is guided by the
10   California Supreme Court's decision in Hsu:
11        Accordingly, we hold that in deciding whether there is a
          "party prevailing on the contract," the trial court is to
12        compare the relief awarded on the contract claim or
          claims with the parties' demands on those same claims and
13        their litigation objectives as disclosed by the
          pleadings, trial briefs, opening statements, and similar
14        sources.   The prevailing party determination is to be
          made only upon final resolution of the contract claims
15        and only by "a comparison of the extent to which each
          party has succeeded and failed to succeed in its
16        contentions." [Internal citation omitted].
17   9 Cal. 4th at 876.   Hsu, wherein the court determined the merits
18   of the contract claim at issue, also held that when the results of
19   the litigation on the contract claims are not mixed — that is,
20   when the court's decision is purely good news for one party and
21   bad for the other — the trial court has no discretion to deny
22   attorney's fees to the successful party.   Id. at 875-76.
23        Thus, when a defendant defeats recovery by the plaintiff
          on the only contract claim in the action, the defendant
24        is the party prevailing on the contract under section
          1717 as a matter of law. [Internal citations omitted].
25        Similarly, a plaintiff who obtains all relief requested
          on the only contract claim in the action must be regarded
26        as the party prevailing on the contract for purposes of
          attorney fees under section 1717. [Internal citations
27        omitted].
28   Id. at 876.   "In determining litigation success, courts should

                                     -11-
 1   respect substance rather than form, and to this extent should be
 2   guided by 'equitable considerations.'    For example, a party who is
 3   denied direct relief on a claim may nonetheless be found to be a
 4   prevailing party if it is clear that the party has otherwise
 5   achieved its main litigation objective."   Id. at 877 (citations
 6   omitted)(emphasis in original).
 7        Some appellate courts in California have held that the court
 8   can determine a "prevailing party" and award attorney's fees under
 9   CCC § 1717, even when that party has prevailed only on a discrete
10   legal proceeding and the merits of the underlying contract dispute
11   have not yet been decided.   This issue most often arises in the
12   context of motions to compel arbitration, or when an action (or
13   defendant) is dismissed on procedural grounds.   See Kandy Kiss of
14   Cal., Inc. v. Tex-Ellent, Inc., 209 Cal.App.4th 604, 613-14 (2012)
15   (defendant who prevails by obtaining a dismissal for lack of
16   subject matter jurisdiction is entitled to contractual attorney's
17   fees, even though plaintiff is able to refile in another forum);
18   PNEC Corp. v. Meyer, 190 Cal.App.4th 66, 71 (2010)(awarding fees
19   to defendant where complaint was dismissed on forum non conveniens
20   grounds, even though no adjudication on the actual contract
21   dispute had occurred and may still occur in another forum); Profit
22   Concepts Mgmt., Inc. v. Griffith, 162 Cal.App.4th 950, 955-56
23   (2008)(trial court dismissed defendant for lack of personal
24   jurisdiction and plaintiff awarded nothing on claim; appellate
25   court held that determination on merits of contract claim was not
26   required for trial court to award attorney's fees under
27   CCC § 1717; the contract claim was "finally resolved" within the
28   meaning of Hsu); Otay River Constructors v. San Diego Expressway,

                                       -12-
 1   158 Cal.App.4th 796, 806-08 (2008)(where no contract action
 2   pending and petition to compel arbitration is filed, successful
 3   defense of the petition allows an award of prevailing party
 4   attorney's fees, even though merits of contract dispute may be
 5   decided later).
 6        However, some California courts have disagreed with this
 7   notion.   See HSBC Bank USA v. DJR Props., Inc., 2011 WL 1404899,
 8   at *2 (E.D. Cal. Apr. 13, 2011)(dismissal for lack of subject
 9   matter jurisdiction; rejecting Profit Concepts as inconsistent
10   with the plain language of CCC § 1717 and Hsu's holding that
11   prevailing party can only be determined upon "final resolution" of
12   the contract claims); Idea Place Corp. v. Fried, 390 F.Supp.2d
13   903, 904-05 (N.D. Cal. 2005)(district court denied fees under CCC
14   § 1717 based on dismissal for lack of subject matter jurisdiction;
15   plaintiff could still pursue contract claims in state court, so
16   "prevailing party" on the action remained to be seen); Frog Creek
17   Partners, LLC v. Vance Brown, Inc., 206 Cal.App.4th 515, 538-39
18   (2012)(defeating petition to compel arbitration filed in pending
19   contract action does not justify attorney's fees because merits of
20   contract action are still to be determined and there can only be
21   one prevailing party "on the action"); Estate of Drummond, 149
22   Cal.App.4th 46, 51-52 (2007)(despite dismissal of plaintiff's
23   claims in probate court, trial court had discretion to deny
24   defendants' fee motion because litigation was continuing in same
25   court where separate contract suit had already been filed).
26        Fortunately, we do not have to decide which courts are
27   correct to resolve this appeal.    Brosio fails to address a major
28   procedural problem presented in this case.   In all of the cases

                                       -13-
 1   she cites to support her fees — Hsu, Otay River Constructors,
 2   Scott Co., Santisas, Moran, Guzman — and in the cases we cited
 3   above, the trial court rendered a "decision" on a pending matter,
 4   whether it be a motion to compel arbitration, a motion to dismiss,
 5   or a judgment after trial, before any party moved for or was
 6   awarded attorney's fees under CCC § 1717.    She has not cited, and
 7   we could not locate, a single case with a procedural posture such
 8   as this one where nothing was adjudicated by the court and yet it
 9   considered a party's motion for attorney's fees under CCC § 1717.
10   Although the bankruptcy court ultimately determined that Brosio
11   was not the prevailing party because Deutsche Bank was entitled to
12   charge the $425.00 fee and because it recovered a greater relief,
13   the court also noted that it had never made any ruling regarding
14   the appropriateness or the legal sufficiency of either the POC,
15   the amended POC, or the Claim Objection.    It is on that basis we
16   affirm the bankruptcy court's ruling.
17        No "final resolution" was ever entered by a court on Deutsche
18   Bank's POC or Brosio's Claim Objection, whether it be on the
19   entire claim or the discrete proceeding over the disputed fee.
20   Hsu, 9 Cal. 4th at 876.    For Brosio to be the prevailing party, we
21   conclude that the bankruptcy court had to first enter some sort of
22   disposition on these issues.    Brosio's "self-proclaimed" victory
23   is insufficient to trigger an award under CCC § 1717.
24        The California Rules of Court further support our decision.
25   Under Court Rule 3.1702,6 which governs the timing of claims for
26
          6
27            Court Rule 3.1702 provides, in relevant part:

28        (a) Application.     Except as otherwise provided by statute,
                                                            (continued...)

                                       -14-
 1   attorney's fees under CCC § 1717, a party must file and serve its
 2   notice and motion for fees within the time for filing a "notice of
 3   appeal."   Arguably, one cannot file an appeal without a final
 4   underlying order or judgment from the court, and certainly no
 5   appeal time can run until one is entered.    Thus, "some" order or
 6   judgment must exist before a party can move for, or be entitled
 7   to, attorney's fees under CCC § 1717.
 8        Alternatively, we conclude that CCC § 1717(b)(2) precluded
 9   Brosio from being the prevailing party.    Under CCC § 1717(b)(2),
10   no prevailing party will exist when an action has been voluntarily
11   dismissed.    Brosio is incorrect when she equates herself to
12   "plaintiff" and Deutsche Bank as "defendant."    The filing of a
13   proof of claim is analogous to filing a complaint in the
14   bankruptcy case.    United States v. Levoy (In re Levoy), 182 B.R.
15   827, 833 n.5 (9th Cir. BAP 1995); Smith v. Dowden, 47 F.3d 940,
16   943 (8th Cir. 1995); Simmons v. Savell (In re Simmons), 765 F.2d
17
          6
18         (...continued)
          this rule applies in civil cases to claims for statutory
19        attorney's fees and claims for attorney's fees provided for
          in a contract. Subdivisions (b) and (c) apply when the court
20        determines entitlement to the fees, the amount of the fees,
          or both, whether the court makes that determination because
21        the statute or contract refers to "reasonable" fees, because
          it requires a determination of the prevailing party, or for
22        other reasons.
23        (b) Attorney's fees before trial court judgment
24                (1) Time for motion
25                A notice of motion to claim attorney's fees for services
                  up to and including the rendition of judgment in the
26                trial court — including attorney's fees on an appeal
                  before the rendition of judgment in the trial court —
27                must be served and filed within the time for filing a
                  notice of appeal under rules 8.104 and 8.108 in an
28                unlimited civil case or under rules 8.822 and 8.823 in a
                  limited civil case.

                                        -15-
 1   547, 552 (5th Cir. 1985); Nortex Trading Corp. v. Newfield, 311
 2   F.2d 163, 164 (2d Cir. 1962); In re Edwards Theatres Circuit,
 3   Inc., 281 B.R. 675, 681 (Bankr. C.D. Cal. 2002).     And a claim
 4   objection by the debtor is analogous to an answer.    O'Neill v.
 5   Cont'l Airlines (In re Cont'l Airlines), 928 F.2d 127, 129 (5th
 6   Cir. 1991)("[T]he filing of a proof of claim is analogous to the
 7   filing of a complaint in a civil action, with the bankrupt's
 8   objection the same as the answer.")(citing Simmons and Nortex
 9   Trading Corp.); In re Cruisephone, Inc., 278 B.R. 325, 330 (Bankr.
10   E.D.N.Y. 2002)("In the bankruptcy context, a proof of claim filed
11   by a creditor is conceptually analogous to a civil complaint, an
12   objection to the claim is akin to an answer or defense and an
13   adversary proceeding initiated against the creditor that filed the
14   proof of claim is like a counterclaim.").
15        Accordingly, Deutsche Bank was the "plaintiff," and Brosio,
16   as objector to the POC, was in the role of "defendant."    Deutsche
17   Bank's abandonment of its claim for attorney's fees in the amended
18   POC was akin to a voluntary dismissal, which prevented defendant
19   Brosio from prevailing on her claim under CCC § 1717.    See Ennis
20   v. Mortgagetree Lending, Inc., 2010 WL 3341544, at *2 (E.D. Cal.
21   Aug. 24, 2010)(plaintiff's abandonment of breach of contract claim
22   before trial was akin to voluntary dismissal and precluded
23   defendants from prevailing on their CCC § 1717 claim); Baldain v.
24   Am. Home Mortg. Servicing, Inc., 2010 WL 2606666, at *6 (E.D. Cal.
25   June 28, 2010)(because plaintiff voluntarily dismissed its TILA
26   claim by declining to re-plead it in its amended complaint,
27   defendant was not prevailing party on that claim under CCC
28   § 1717); Dodson v. Pan Pac. Retail Props., Inc., 2003 WL 25656778,

                                    -16-
 1   at *1 (E.D. Cal. June 13, 2003)(holding that defendant was not
 2   prevailing party where plaintiff abandoned claim prior to
 3   trial)(citing Galan v. Wolfriver Holding Corp., 80 Cal.App.4th
 4   1124, 1130 (2000)(when plaintiff has voluntarily dismissed a cause
 5   of action no prevailing party exists as a practical matter);
 6   Gilbert v. Nat'l Enquirer, Inc., 55 Cal.App.4th 1273, 1277-78
 7   (1997)(same).
 8        In short, we view the procedural posture of this case as
 9   follows.   Deutsche Bank filed its POC (the complaint), and Brosio
10   filed her Claim Objection (the answer).   Deutsche Bank then filed
11   an amended POC (an amended complaint) in which it abandoned its
12   claim for attorney's fees.    Brosio then, through her Fee Motion,
13   contended that because Deutsche Bank amended its POC (complaint)
14   removing the fee claim, she was the "winner" on the "action on the
15   contract" and entitled to attorney's fees under CCC § 1717.    Put
16   this way, Brosio's Fee Motion makes little sense.7   Further, to
17   award fees to Brosio under these circumstances would be punishing
18   Deutsche Bank for its gesture of civility in removing its claim
19   for attorney's fees from the POC — a claim the bankruptcy court
20   determined it was entitled to assert under Paragraph 9 of the DOT.
21   We agree with that determination.
22        Brosio has complained that Deutsche Bank incurred attorney's
23   fees only because it discretionarily elected to file an
24   unnecessary proof of claim.   Although secured creditors are not
25
          7
26           Counsel has "an obligation to consider the potential   for
     recovery and balance the effort required against the results   that
27   might be achieved . . . . [A]n attorney must scale his . . .   fee
     at least to the reasonably expected recovery." Unsecured
28   Creditors’ Comm. v. Puget Sound Plywood, Inc., 924 F.2d 955,    961
     (9th Cir. 1991). Billing judgment is mandatory.

                                      -17-
 1   required to file a proof of claim in a chapter 13 case, prudent
 2   creditors like Deutsche Bank are certainly entitled to file one to
 3   establish the amount they are owed according to their own
 4   calculations, rather than relying on the debtor's, and to receive
 5   distributions on an allowed claim under the provisions of a
 6   chapter 13 plan.      See, e.g., In re Dumain, 492 B.R. 140, 143
 7   (Bankr. S.D.N.Y. 2013); §§ 501, 502 and 1326(c); Rules 3002 and
 8   3021.       Further, by signing the DOT, Brosio agreed that Deutsche
 9   Bank could take reasonable actions to protect its security
10   interest, particularly if she filed bankruptcy, and that she would
11   pay Deutsche Bank's reasonable attorney's fees incurred for those
12   actions.      Preparing and filing the POC, reviewing Brosio's plan
13   and filing a request for special notice, and charging a total of
14   only $425.00 in attorney’s fees, seems more than reasonable.
15           Because we conclude that the bankruptcy court did not err in
16   determining Brosio was not the prevailing party, we need not reach
17   Brosio's second issue about whether it erred in deciding her fees
18   were not reasonable.
19                                  VI. CONCLUSION
20           Although we have determined on a different legal basis why
21   Brosio was not the prevailing party under CCC § 1717, because the
22   bankruptcy court reached this same conclusion, we perceive no
23   error in this case.      Accordingly, we AFFIRM the Fee Order.8
24
25
26
             8
             Deutsche Bank contends that Brosio's appeal is frivolous,
27   and it requests attorney's fees on appeal. We decline to consider
     Deutsche Bank's request because it did not file a separate motion
28   as required by Rule 8020. See Rule 8020; Garner v. Shier (In re
     Garner), 246 B.R. 617, 626 n.14 (9th Cir. BAP 2000).

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