Opinion
C085656
03-11-2020
MARWAN ABDULRAHIM, Plaintiff and Respondent, v. WELLS FARGO BANK, N.A., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 34-2017-00212026-CU-OR-GDS)
This is a nonjudicial foreclosure action. Defendant Wells Fargo Bank, N.A. (Wells Fargo) appeals from the trial court's order awarding plaintiff Marwan Abdulrahim attorney fees and costs for obtaining a temporary restraining order (TRO) enjoining the trustee's sale of his residence. We affirm the trial court's order.
In light of the issues raised, we incorporate the relevant facts into our discussion.
DISCUSSION
In 2012, California enacted legislation known as the California Homeowner Bill of Rights, or HBOR, which imposed specific limitations regarding the nonjudicial foreclosure of owner-occupied residential real property. (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 86 & fn. 14.) Among other things, the HBOR prohibits " 'dual track' " foreclosures, which occur when a mortgage servicer continues foreclosure proceedings while reviewing a homeowner's application for a loan modification. (Id. at p. 86, fn. 14; Civ. Code, § 2923.6, subd. (c).) The HBOR provides for injunctive relief to remedy statutory violations that occur prior to foreclosure (§ 2924.12, subd. (a)), and monetary damages when the borrower seeks relief for statutory violations after the foreclosure sale has occurred (§ 2924.12, subd. (b)). The HBOR gives trial courts the discretion to award reasonable attorney fees and costs to the "prevailing borrower," providing: "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." (§ 2924.12, subd. (h).)
Undesignated statutory references are to the Civil Code.
On May 9, 2017, the trial court granted Abdulrahim's ex parte application for a TRO and order to show cause regarding preliminary injunction, which sought to prevent a May 11 trustee's sale of his Galt residence due to a violation of the HBOR's prohibition against dual tracking. Abdulrahim amended his allegations after Wells Fargo demurred and moved to strike portions of the complaint. Abdulrahim then withdrew his request for a preliminary injunction in mid-July 2017, but maintained the hearing on his motion for attorney fees and costs (based on the original complaint and its accompanying application for a TRO). In its opposition to Abdulrahim's motion for fees and costs, Wells Fargo requested judicial notice of prior litigation by Abdulrahim against Wells Fargo. The trial court denied Wells Fargo's request for judicial notice of recorded property and court documents filed in other cases as irrelevant to Abdulrahim's motion for attorney fees and costs. The trial court awarded him $7,905 in attorney fees and costs pursuant to section 2924.12, former subdivision (i). The court reasoned that Abdulrahim was a "prevailing borrower" under the HBOR because he obtained injunctive relief in the form of a TRO against his mortgage servicer—Wells Fargo. This timely appeal followed.
Although Wells Fargo alludes to the trial court's ruling on its request for judicial notice ("the trial court declined to consider anything other than the record before it at the time the TRO was granted . . . ."), over several pages in its briefing it inappropriately summarizes other litigation between the parties—relying on documents the trial court expressly refused to consider when addressing the merits of Abdulrahim's fee motion. We do not consider these portions of Wells Fargo's opening brief.
In 2014, section 2924.12 was amended and renumbered. The language in former subdivision (i) was codified in subdivision (h) of section 2924.12 without substantive change. The amended and renumbered version of the statute became operative on January 1, 2018. (Stats. 2014, ch. 401, § 7.) In September 2018, the Legislature, again, amended section 2924.12. (Stats. 2018, ch. 404, § 17.) The amendments have no impact on this appeal.
Abdulrahim filed this action against Wells Fargo and Clear Recon Corporation (CRC), alleging one cause of action under the HBOR for a violation of section 2923.6, subdivision (c) (dual tracking). The TRO issued by the trial court prevented Wells Fargo and CRC from proceeding with the trustee's sale of Abdulrahim's property pending a determination of his request for a preliminary injunction. Thereafter, Abdulrahim obtained the award of attorney fees and costs against Wells Fargo. CRC is not a party to this appeal.
On appeal, Wells Fargo contends the trial court erred in interpreting section 2924.12 as authorizing an award of attorney fees and costs to a borrower who obtains a TRO enjoining a trustee's sale of his or her residence. Wells Fargo's arguments in this regard are identical in all material respects to the arguments we recently rejected in Bustos v. Wells Fargo Bank, N.A. (2019) 39 Cal.App.5th 369 (Bustos). For the reasons set forth in Bustos, we reject Wells Fargo's arguments here. (Id. at pp. 377-380 [concluding that a borrower who obtains a TRO enjoining the trustee's sale of his or her home is a "prevailing borrower" within the meaning of § 2924.12, subd. (h), and therefore may recover attorney fees and costs]; see Hardie v. Nationstar Mortgage LLC (2019) 32 Cal.App.5th 714, 718, 720, 723 [same] (Hardie).)
We note that Abdulrahim has not filed a respondent's brief, although this does not absolve us of adjudicating the merits of Wells Fargo's appeal. (In re Bryce C. (1995) 12 Cal.4th 226, 232-233; People v. Hill (1992) 3 Cal.4th 959, 995, fn. 3, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13; Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178, fn. 3; see Cal. Const., art. VI, § 13.)
Counsel for Wells Fargo acknowledged at oral argument before this court that "Bustos is the law," but emphasized that the circumstances of this case are factually distinguishable from Bustos.
We also reject Wells Fargo's contention that the trial court abused its discretion in awarding attorney fees and costs to Abdulrahim under the circumstances of this case. Wells Fargo devotes a single paragraph of its 72-page brief to this claim. Without citation to the record, that paragraph states: "No inquiry was made by the trial court into events post-dating the TRO's issuance. Though the trial court knew the PI [(i.e., preliminary injunction)] was withdrawn, it persisted in disregarding the import of that, and failed to correctly weigh that fact's significance in its order granting fees. Its failure to exercise its discretion to deny fees against this factual background was itself an abuse of discretion. [Citation.]"
As an initial matter, Wells Fargo has forfeited this claim by failing to raise it in the trial court. In its opposition to the fee motion, Wells Fargo did not argue that an award of attorney fees and costs would be an abuse of discretion under the circumstances of this case. Nor did Wells Fargo make such an argument at the hearing on the fee motion. " 'It is axiomatic that arguments not raised in the trial court are forfeited on appeal.' " (Sander v. Superior Court (2018) 26 Cal.App.5th 651, 670.)
But even if the claim werer preserved for appeal, Wells Fargo's conclusory presentation is insufficient to demonstrate reversible error. A general principle of appellate practice is that the lower court order is presumed to be correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Thus, the appellant must affirmatively show error occurred. (Ibid.) To make this showing, an appellant must present meaningful legal analysis supported by citations to authority and to facts in the record that support the claim of error. An appellant cannot demonstrate reversible error through conclusory claims. (In re S.C. (2006) 138 Cal.App.4th 396, 408; see Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 557 ["an appellant must do more than assert error and leave it to the appellate court to search the record and the law books to test his claim"].)
At oral argument before this court, counsel for Wells Fargo asserted that the trial court failed to weigh relevant factors, including the relative merits of the TRO, in determining whether to award attorney fees. (See Hardie, supra, 32 Cal.App.5th at p. 725; Bustos, supra, 39 Cal.App.5th at p. 382 ["among the relevant factors a trial court may consider in making this determination are the type of injunctive relief obtained by the borrower and whether the borrower forced compliance with the HBOR"].) We recognize the trial court made its fee determination in August of 2017 without the benefit of Hardie and Bustos, both of which were filed in 2019. However, we are not persuaded the trial court was unaware of or abused its discretion under section 2924.12, subdivision (h) (fees "may" be awarded). In this case, the court reduced the fee award as part of its exercise of discretion.
DISPOSITION
The trial court's order awarding attorney fees and costs to Abdulrahim is affirmed. Because Abdulrahim did not file a brief or otherwise make an appearance, no costs are awarded on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
/s/_________
Butz, Acting P. J. We concur: /s/_________
Duarte, J. /s/_________
Renner, J.