Page 38 Summer 2019 Points of Interest A lthough it has been effective since January 1, 2013, California’s Homeowner’s Bill of Rights (HOBR) is still working its way through the trial and appellate courts, with parties searching for clarification on many of its unclear provisions. One issue ripe for interpretation is under what circumstance is the borrower the prevailing party and entitled to attorneys’ fees. Civil Code Sections2924.12(i)and2924.19(h)1 givethe court the discretion to award reasonable attorney fees and costs to the “prevailing borrower,” who is defined as a borrower that “obtained injunctive relief or was awarded damages.” There is no question that borrowers who prevail on their HOBR claims at trial are entitled to their fees. Likewise, under the Court of Appeals’ 2015 decision in Monterossa v Superior Court,2 it isequallyasclearthatborrowersobtaining a preliminary injunction under HOBR are entitled to their fees in bringing the injunction even if the borrower does not ultimately prevail on the merits of their lawsuit. But, until recently, servicers have often successfully argued that borrowers who obtain a temporary restraining order (“TRO”) are NOT entitled to attorneys’ fees just for obtaining the TRO as it was not within the scope of the term “injunctive relief.” Unfortunately,theCourtofAppeals recently published decision in Hardie v Nationstar3 determined that borrowers by T. Robert Finlay, Esq. Wright, Finlay & Zak, LLP California Court of Appeals Expands a Borrower's Right to Attorneys' Fees Under HOBR: Hardie v. Nationstar prevailing on a TRO hearing are eligible for attorneys’ fees and costs under HOBR because a TRO should be considered a form of injunctive relief. This decision will undoubtedly increase the motivation for borrowers claiming violations of HOBR to seek TROs. A TRO is an injunction in the sense that it enjoins a particular act pending a hearing on preliminary injunction. Chico Feminist Women’s Health Center v. Scully, (1989) 208 Cal.App.3d 230, 237, fn. 1. However, it is distinguishable in the following ways: 1. A TRO may be issued “ex parte” and, sometimes, even without notice (e.g. where a foreclosure sale is just days or even hours away) as its purpose is to preserve the status quo; 2. In contrast to the ex parte TRO proceeding, a hearing on the preliminary injunction is a full evidentiary hearing giving all parties theopportunitytopresentarguments and evidence. Civ. Proc. Code (CCP) § 527; 3. AbondisnotessentialforaTROunlike a preliminary injunction which is not effective until the undertaking is filed. CCP § 529; 4. The TRO is transitory in nature and terminates automatically when a preliminary injunction is issued or denied. Landmark Holding Group v. Superior Court, (1987) 193 Cal.App.3d 525, 529. When issued without notice, the TRO is only supposed to last for 15 days, though, for good cause, the Court can set the expiration for up to 22daysfromthedateofissuance. CCP § 527(d). The most troubling aspect of the TRO is the short notice required prior to the ex parte hearing. In California State courts, a borrower need only provide telephonic notice by 10:00 am the day before an 8:30 am TRO hearing and, as noted, in emergency situations, no notice might need to be given at all. With less than 24 hours’ notice required, most telephonic, email or fax TRO notices do not make it to therightinternalpersonneltohirecounsel in time to appear at the hearing.  Even if counsel is hired, he or she often does not have sufficient information to effectively oppose the TRO.  Making matters worse, many judges “rubber stamp” TROs to stop foreclosure sales, believing that a short continuance until the Preliminary Injunction hearing, will not cause the servicer significant harm.   continued on page 39