32 Cal. App. 5th 714
Cal. Ct. App. 5th2019Background
- Lana and Scott Hardie sued Nationstar Mortgage, New Residential Loan Trust, and Aztec Foreclosure Corporation under Civil Code §2924.12 and related HBOR provisions to stop a trustee's sale.
- The Hardies obtained an ex parte temporary restraining order (TRO) enjoining the scheduled trustee's sale; their TRO application included a request for $3,500 in attorney's fees.
- At the hearing the court orally indicated it believed §2924.12 authorized fees only for preliminary injunctions, not TROs, but the written TRO order nonetheless awarded $3,500 in fees.
- Nationstar appealed solely from the attorney's fees award.
- The appellate court considered (1) whether a borrower who obtains a TRO is a "prevailing borrower" under Civil Code §2924.12(h) entitled to discretionary fees, and (2) whether the fee request was procedurally proper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a borrower who obtains a TRO is a "prevailing borrower" under §2924.12(h) and may recover attorney's fees | TRO is injunctive relief; §2924.12(h) covers injunctive relief generally, so fees are authorized | TROs are temporary/ex parte and differ from preliminary injunctions; statute shouldn't authorize fees for TROs | Court: §2924.12(h) authorizes discretionary fees for obtaining injunctive relief including TROs (statute's plain language includes temporary injunctive relief) |
| Whether the fee award here was procedurally proper | Hardies requested fees in their TRO papers | Award was made without a properly noticed fee motion; Rule 3.1702 requires noticed motion when determining prevailing party or reasonableness of fees | Court: Fee award reversed—fees must be sought by a properly noticed motion; remand for further proceedings |
Key Cases Cited
- Monterossa v. Superior Court, 237 Cal.App.4th 747 (construing §2924.12 to permit fees for preliminary injunctive relief)
- Lueras v. BAC Home Loans Servicing, LP, 221 Cal.App.4th 49 (discussing HBOR purpose and remedies)
- Brown, Winfield & Canzoneri, Inc. v. Superior Court, 47 Cal.4th 1233 (final written order controls over oral tentative rulings)
- Yvanova v. New Century Mortgage Corp., 62 Cal.4th 919 (recognizing judicial notice of recorded documents and court records)