Civil Code Section 2924.12(i) Did Allow Fee Entitlement.
In response to the residential subprime meltdown, the California Legislature prohibited “dual tracking,” namely, recording a notice of trustee’s sale while simultaneously engaging in a loan modification process, with injunctive and damages relief being allowed depending on when the trustee’s sale notice was recorded. Injunctive relief is the proper remedy where the notice was recorded after loan mod discussions were initiated. For purposes of our blog, Civil Code section 2924.12(i) provides that a court may award reasonable attorney’s fees and costs to the “prevailing borrower,” defining this to be a borrower obtaining injunctive relief or awarded damages for “dual tracking” violations.
The trial judge in Monterossa v. Superior Court (PNC Bank), Case No. C077683 (3d Dist. June 12, 2015) (published) denied fees to a borrower who had obtained a preliminary injunction for “dual tracking” violations, reasoning that interim fees for winning a provisional injunction order were not recoverable under section 2924.12(i).
The Third District reversed. After examining the language/purpose of the statutory scheme, and its legislative history, the appellate court concluded that the Legislature intended to authorize an award of fees and costs when a preliminary injunction issues in these contexts.
Comments