Undertaking: Home Foreclosure Preliminary Injunction Can Include Amount Of Attorney’s Fees Lender Would Likely Incur As A Result Of The Injunction

Even If Deed Of Trust Only Allows Fees Added To The Debt, Fees Can Be Included For Provisional Relief Pending Future Actions On Whether Fees Recovered Through A Foreclosure Sale.

            In Johansen v. Bayview Loan Servicing LLC, Case No. C089085 (3d Dist. Apr. 19, 2022) (unpublished), residential borrower obtained a preliminary injunction to prevent a foreclosure of her house, but the trial judge conditioned the preliminary injunction under Code of Civil Procedure section 529 on an undertaking which included attorney’s fees the lender would likely incur as a result of the injunction.  Borrower appealed, arguing it was error to include the fees as an undertaking component.  The appellate court disagreed.  An undertaking is required by statute, separate and apart from deed of trust provisions which only allowed the fees to be added to the debt.  The Third District did agree that future events would determine what happened—lender, if it does get fee recovery through a foreclosure sale, cannot “double dip” by claiming fees against the injunction bond later on.