Consumer Statutes, Deeds Of Trust: Third District Agrees That TRO Relief Can Justify Fee Recovery To Prevailing Borrower Under The California Homeowner Bill Of Rights Even If Borrower Loses Later Preliminary Injunction

This Decision Tracks The Reasoning Of The Fifth District In Hardie.

            In Bustos v. Wells Fargo Bank, N.A., Case No. C085657 (3d Dist. Aug. 28, 2019) (partially published), the Third District Court of Appeal agreed that a borrower obtaining a temporary restraining order (TRO) under the California Homeowner Bill of Rights (HBOR) for a lender’s “dual tracking” violations, although later losing a preliminary injunction OSC,  is entitled to a discretionary award of attorney’s fees, in this case affirming an award of $4,260 in fees and costs out of a requested $10,800.  Although agreeing that TRO and preliminary injunction determinations are different in nature, the statutory language applies broadly to “Injunctive relief” which would include a TRO.  In so concluding, it agreed with the reasoning in a federal case and a fairly recent Fifth District decision.  (Lac v. Nationstar Mortgage LLC, 2016 U.S. Dist. LEXIS 98250 (E.D. Cal. July 26, 2016); Hardie v. Nationstar Mortgage LLC, 32 Cal.App.5^th 714, 718, 720, 723 (2019) [reviewed in our March 6, 2019 post].)