Johansen v. Bayview Loan Servicing LLC CA3

Filed 4/19/22 Johansen v. Bayview Loan Servicing LLC CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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) ----

CARLA L. JOHANSEN, C089085

Plaintiff and Appellant, (Super. Ct. No. 34-2018- 00247038-CU-OR-GDS) v.

BAYVIEW LOAN SERVICING LLC,

Defendant and Respondent.

Under Code of Civil Procedure section 529,1 a court generally must require a party who has obtained a preliminary injunction to post an undertaking in an amount determined by the court. Courts set this amount based on their estimate of the harmful effect the injunction is likely to have on the enjoined party, and in the event they later conclude the injunction was wrongly issued, they may require some or all of this amount

1 Undesignated statutory references are to the Code of Civil Procedure.

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to be distributed to the enjoined party to compensate it for the harm it suffered. These requirements provide a measure of protection to parties who are mistakenly enjoined. In this case, Carla L. Johansen sought to enjoin her loan servicer, Bayview Loan Servicing LLC (Bayview), from foreclosing on her home. The trial court afterward agreed to grant a preliminary injunction. But, relying on section 529, it conditioned the grant of the injunction on her posting an undertaking in an amount that would, among other things, cover the attorney fees that Bayview would likely incur as a result of the injunction. On appeal, Johansen contends the trial court wrongly included these attorney fees when it determined the amount of the undertaking. We affirm the court’s order. BACKGROUND In 2005, Johansen took out a loan for $260,000 and signed a deed of trust on her home to secure the loan. Sometime later, after Johansen fell behind on her loan payments, she and her loan servicer agreed to a loan modification. Sometime later still, after she again fell behind on her loan payments, she sought a second loan modification from her loan servicer. But she never obtained the loan modification that she believed was appropriate. In 2018, Johansen sued Bayview, which was her loan servicer at the time, and several other entities. Among other things, she alleged that Bayview threatened to foreclose on her home unless she signed a loan modification agreement that artificially inflated the amount of her loan and that Bayview, in violation of Civil Code section 2923.7, “failed to assign to [her] a designated [single point of contact] to assist her through the loan modification process.” (See Civ. Code, § 2923.7, subd. (a) [“When a borrower requests a foreclosure prevention alternative, the mortgage servicer shall promptly establish a single point of contact and provide to the borrower one or more direct means of communication with the single point of contact.”].) Two weeks after she filed her complaint, Johansen filed an application for a temporary restraining order and an order to show cause why a preliminary injunction