Filed 3/11/20 Abdulrahim v. Wells Fargo Bank, N.A. CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

—-

MARWAN ABDULRAHIM,

Plaintiff and Respondent,

v.

WELLS FARGO BANK, N.A.,

Defendant and Appellant.

C085656

(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).)

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.

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 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”].)

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.