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California Court of Appeal ruling on the Homeowner’s Bill of Rights

A recent California Court of Appeal ruling on the Homeowner’s Bill of Rights is the topic of this blog post.

On June 12, 2015, in the case of Monterrosa v. Superior Court the California Court of Appeal for the Third Appellate District issued a published decision in which they stated that a borrower who obtains a preliminary injunction enjoining a trustee sale using Civil Code section 2924.12 contained in the Homeowner’s Bill of Rights is a “prevailing borrower” under the statute and is entitled to attorney fees. The Court specifically found that a borrower only has to obtain a preliminary injunction to be entitled to attorney fees they are not required to obtain a permanent injunction.

This case is another huge win for California homeowners facing foreclosure in that once the case becomes final within 30 days it may be cited in a memorandum of points and authorities. The case will become final on July 12, 2015 unless the respondents in this case, namely PNC Bank, et al, file a petition for rehearing with the Court of Appeal, request that the case be depublished or file a petition for review with the California Supreme Court.

The petitioners in that case were Michael Monterrosa and Cheranne Nobis who filed an 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. The petitioners then 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.

The petitioners then 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, stating 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.” The case was remanded for consideration on the merits, and costs were awarded to the petitioners for the writ proceeding.

To view the slip opinion of this case on Justia visit:

View case on Justia

To view the slip opinion of this case on Google Scholar visit:

View case on Google Scholar

 

To view over 300 sample legal documents for California and Federal litigation created by the author of this blog post visit:

http://www.scribd.com/LegalDocsPro

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

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DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

 

 

 

 

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