Tuesday, July 21, 2015

California Appeals Court: Homeowners Incurring Legal Fees When Scoring Preliminary Injunctions In "Dual Tracking" Foreclosure Suits Are Entitled To Stick Bankster With Tab

From the Money & Dirt blog (California):
  • Cases featuring “dual tracking” claims under California’s Homeowner Bill of Rights seem to be all the rage these days.

    [An earlier] post, Tender Not Required for a “Dual Tracking” Claim, highlighted a recent Court of Appeal opinion holding that a borrower need not tender the loan amount in order to allege a dual tracking claim — a claim based on the lender foreclosing while negotiating a modification with the borrower.

    Another recent decision illustrates why lenders should not want to be on the wrong side of a dual tracking claim: the dreaded award of attorney fees. In Monterossa v. Superior Court, the California Court of Appeal (Third District in Sacramento) held that a borrower who obtains a preliminary injunction at the outset of the case can recover attorney fees against the lender.(1)
For more, including a discussion of the facts of the case, and an analysis of the applicable California law, see Lenders Face Attorney Fee Liability for Preliminary Injunction Stopping “Dual Tracking”.

For the court ruling, see Monterossa v. Superior Court, No. C077683 (Cal. App. 3d Dist. June 12. 2015).

(1) From the court ruling:
  • In 2012, new legislation imposed specific limitations regarding the nonjudicial foreclosure of owner-occupied residential real property.[1] Among other things, the statutory scheme provides that a court may award reasonable attorney fees and costs to the "prevailing borrower," indicating: "A borrower shall be deemed to have prevailed for purposes of this subdivision if the borrower obtained injunctive relief or was awarded damages pursuant to this section." (Civ. Code, § 2924.12, subd. (i).)[2]

    In this case, the respondent superior court concluded the petitioners were not prevailing borrowers because they obtained only a preliminary, rather than permanent, injunction. The court erred. We hold that a borrower who obtains a preliminary injunction enjoining, pursuant to section 2924.12, the trustee's sale of his or her home is a "prevailing borrower" within the meaning of the statute.

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