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April 16, 2012 | Law Alert

Brown v. Wells Fargo Bank, NA (2012) 204 Cal.App.4th 1352

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The Second District orders its court clerk to alert the State Bar to an attorney who abused the appellate process by filing an appeal solely for delay.

When Jane Brown defaulted on her home mortgage Wachovia Mortgage, a division of Wells Fargo Bank NA, recorded notice of a trustee sale and set a sale date.  Brown filed suit seeking declaratory and injunctive relief to prevent the sale of her home.  The court granted a preliminary injunction preventing the sale on condition that Brown deposit monthly payments in a trust account in lieu of a bond.

Brown failed to make the payments and Wells Fargo sought ex-parte relief to dissolve the preliminary injunction and set a foreclosure sale date.  Brown’s counsel, Jason Estavillo, appeared at the hearing and argued that the proposed order should not issue ex-parte.  The trial court agreed, set a hearing date, and instructed Estavillo to find out what Brown had done to comply with the prior order.  The day before the hearing Brown filed opposition papers, but did not explain why she failed to comply with the prior order.  The court dissolved the preliminary injunction and allowed the foreclosure sale to proceed.  Brown filed a notice of appeal which automatically stayed the sale.

On appeal Brown argued that Wells Fargo had failed to show good cause for ex-parte relief and that her due process rights were violated.  The Court of Appeal noted the premise of the appeal was false because the trial court had denied the ex-parte request and set the matter for hearing.  At the hearing Brown expressly waived any claim that the hearing was improper.  Regardless, there was good cause to expedite the hearing.

The Court concluded that with the misguided help of counsel, Brown had abused the appellate process and delayed the sale of her home for over two years.  The court did not extend the benefit of any doubt to Estavillo, and ordered its clerk to send a copy of its opinion to the California State Bar for consideration of discipline.

Comment:  The Court of Appeal, in its own words, will not suffer lightly the abuse of the appellate process.  A frivolous appeal filed solely for delay may bring the attorney to the attention of the State Bar at the instigation of the court.

Practice Area: Lawyers & Judges Defense Group
Attorney: John B. Sullivan

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