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Apply for Attorney Fees as Soon as Your Attorney Obtains a Preliminary Injunction; You do NOT have to Wait Until the End to Get Attorney Fees!

law.justia.com | June 19, 2015

Monterossa v. Super. Ct.

In 2012, new legislation imposed specific limitations regarding the nonjudicial foreclosure of owner-occupied residential real property. Among other things, the statutory scheme provided that a court may award reasonable attorney fees and costs to the "prevailing borrower:" "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." Petitioners Michael Monterossa and Cheranne Nobis filed an ex parte application for a temporary restraining order (TRO) and request for issuance of an order to show cause regarding a preliminary injunction, seeking to prevent the trustee's sale of their residence, then scheduled for April 21, 2014. The superior court issued an order on May 8, 2014, granting petitioners’ motion for a preliminary injunction enjoining the trustee’s sale of petitioners' home, with conditions. Thereafter, petitioners filed a motion for attorney fees and costs. After a hearing, the superior court denied the motion, reasoning the language of the applicable statute was consistent with the award of attorney fees at the conclusion of the action; statutory attorney fees were awardable only at the end of the case; and the statute did not specifically provide for an interim award of attorney fees upon the granting of provisional relief such as a preliminary injunction. Petitioners filed a petition for writ of mandate seeking an order to direct the superior court to grant their motion for attorney fees and costs. After review, the Court of Appeal concluded the superior court erred in concluding that petitioners were not prevailing borrowers because they obtained only a preliminary rather than permanent injunction. "[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." The case was remanded for consideration on the merits, and costs were awarded on this writ proceeding.

View Case.

 

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Nancy Duffy McCarron, CBN 164780
Attorney, Real Estate Broker, BBB Arbitrator, CA Notary Public
Certified Forensic Loan Auditor, Property Manager

 

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