Predicate for Fee Entitlement Evaporated.
In our June 14, 2015 post, we discussed the Third District’s decision in Monterossa v. Superior Court, 237 Cal.App.4th 747, 754 (2015), which decided that attorney’s fees were properly awarded to a borrower obtaining a preliminary injunction against lender “dual tracking” under Civil Code section 2924.12(i) (the Homeowner Bill of Rights fee-shifting statute effective January 1, 2013). Monterossa’s reasoning recently was extended to allow a fee award to a borrower obtaining a temporary restraining order (TRO) under the Homeowner Bill of Rights. (See Lac v. Nationstar Mortgage LLC, 2016 U.S. Dist. LEXIS 40633 at *10 (E.D. Cal. March 28, 2016).)
Borrower in Zadovsky v. Wells Fargo Bank, N.A., Case No. A140939 (1st Dist., Div. 3 Apr. 20, 2016) (unpublished) won a TRO for lender “dual tracking,” but lost a preliminary injunction battle because the lower court determined that the property was not owner-occupied so as to be ineligible for Homeowner Bill of Rights protections. However, in the TRO order, borrower was awarded attorney’s fees of $14,219 for the TRO win under the Bills of Right fee-shifting statute.
The fee award went POOF! on appeal because nothing in the TRO, either, established borrower’s relevant property was owner-occupied such that the TRO was issued in error. Based on this, the attorney’s fees award evaporated also. (Borrower argued the appeal was moot because the property had been sold such that the appeal was moot, with the appellate court agreeing with respect to the TRO merits but disagreeing with respect to the fee exposure still faced by lender under the fee component of the TRO—with this latter aspect allowing for scrutiny of the propriety of issuing a TRO in the first place.)