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72 Legal Industry Update State Focus CALIFORNIA CALIFORNIA HOMEOWNER'S BILL OF RIGHTS When is a Borrower Entitled to Attorneys' Fees after Enjoining a Foreclosure Sale? By: Nicole Dunn and T. Robert Finlay, Wright, Finlay & Zak, LLP Although 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, searching for clarifi- cation on many of its unclear provisions. One issue ripe for interpretation is under what cir- cumstance is the borrower deemed the prevail- ing party and entitled to attorneys' fees. Civil Code Sections 2924.12(i) and 2924.19(h) give the court the discretion to award reasonable attor- ney fees and costs to the "prevailing borrower" who is defined as a borrower that "obtained in- junctive relief or was awarded damages." ere is no question that borrowers who prevail on their HOBR claims at trial are entitled to their fees. Likewise, under the recent Court of Ap- peals decision in Monterossa v Superior Court, it is now equally as clear that borrowers obtain- ing a preliminary injunction under HOBR are entitled to their fees in bringing the injunction. But, is the granting of a temporary restrain- ing order ("TRO") considered injunctive relief for purposes of obtaining attorney fees under HOBR? If so, what is to preclude borrowers from systematically applying for TROs (which are often unopposed and usually granted) for the express purpose of funding the litigation with an award of attorneys' fees obtained due to the preparation of the Complaint and other pre-litigation matters? To determine whether obtaining a basic TRO entitles borrowers to a fee award requires a closer examination of Section 2924.12(i) and the Monterossa decision. In Monterossa, the court addressed whether Section 2924.12(i) allows for an interim award of attorneys' fees after the borrower obtains a preliminary injunction as a result of a violation of Civil Code ยงยง 2923.55, 2923.6, 2923.7, 2924.9, 2924.10, 2924.11, or 2924.17. In Monterossa, the Borrowers/Petitioners filed an ex parte application for a 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. At the prelimi- nary injunction hearing, the court found (on undisputed evidence since the lender offered no