Sese v. Wells Fargo Bank

Filed 7/22/16 pub. order 8/18/16 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

DANILO SESE,

Plaintiff and Appellant, C074663

v. (Super. Ct. No. 34201300144287CUWEGDS) WELLS FARGO BANK N.A.,

Defendant and Respondent.

Appellant Danilo Sese seeks to challenge an order denying his motion for interim attorney fees under Civil Code section 2924.12, a provision in the California Homeowner Bill of Rights.1 Subdivision (i) of section 2924.12 provides that “[a] court may award a prevailing borrower reasonable attorney’s fees and costs in an action brought pursuant to this section. 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.” Having secured a preliminary injunction to enjoin the foreclosure sale of

1 Undesignated statutory references are to the Civil Code.

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his residential real property, Sese moved for attorney fees of $100,865. The trial court denied the motion on grounds section 2924.12, subdivision (i), does not provide for interim attorney fees. Sese contends the order must be reversed because section 2924.12 provides attorney fees to a borrower immediately after successfully obtaining a preliminary injunction. Respondent Wells Fargo Bank N.A. (Wells Fargo) asserts the appeal must be dismissed because the trial court’s order is interlocutory in nature and nonappealable under the one final judgment rule. After the completion of briefing, we asked the parties to address the effect, if any, of this court’s decision in Monterossa v. Superior Court of Sacramento County (2015) 237 Cal.App.4th 747, 751 (Monterossa) on the present appeal. Sese did not file a supplemental brief. However, we have received and considered a supplemental brief from Wells Fargo. We conclude the trial court’s order is nonappealable because it is interlocutory in nature. Accordingly, we dismiss the appeal. FACTUAL AND PROCEDURAL HISTORY In 2007, Sese received a $472,000 residential property loan from Wells Fargo’s predecessor. Starting in 2009, Sese started missing regular monthly payments on the loan and failed to pay taxes on the residential property. In 2012, Wells Fargo and Sese agreed to modify the loan under the Home Affordable Mortgage Program. However, Sese defaulted on the agreement shortly after it was executed. The California Homeowner Bill of Rights became effective on January 1, 2013. (See Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 86, fn. 14 [noting name and effective date of legislation at issue in this case].) Also in January 2013, Wells Fargo recorded a notice of default with the Sacramento County Recorder. Sese requested another modification of the loan, but did not submit the financial documentation necessary for a modification. In May 2013, Wells Fargo