Velasquez v. Chase Home Finance LLC et al

Filing 26

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 6/28/2012 VACATING the Motion Hearing as to 25 Motion for Sanctions set for 8/29/2012; RECOMMENDING that the 25 Motion for Sanctions, construed as a Motion for Preliminary Injunctive Relief be denied. Motion referred to Judge Lawrence K. Karlton. Objections due within 14 days. (Michel, G)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RODOLFO VELASQUEZ,

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Plaintiff,

No. CIV S-12-433 LKK CKD PS

vs.
CHASE HOME FINANCE LLC, et al.,
Defendants.

ORDER AND
FINDINGS AND RECOMMENDATIONS

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Plaintiff has filed a motion for sanctions, or in the alternative a motion for

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intervention to administrate loan documents. Plaintiff complains that defendant has not timely

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processed his loan modification application under the HAMP program. Because oral argument is

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not of material assistance, this matter is submitted on the briefs. E.D. Cal. L.R. 230(g).

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The court construes plaintiff’s motion as a motion seeking affirmative preliminary

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injunctive relief. The legal principles applicable to a request for preliminary injunctive relief are

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well established. “The traditional equitable criteria for granting preliminary injunctive relief are

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(1) a strong likelihood of success on the merits, (2) the possibility of irreparable injury to plaintiff

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if the preliminary relief is not granted, (3) a balance of hardships favoring the plaintiff, and

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(4) advancement of the public interest (in certain cases).” Dollar Rent A Car v. Travelers Indem.

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Co., 774 F.2d 1371, 1374 (9th Cir. 1985). The criteria traditionally are treated as alternative

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tests. “Alternatively, a court may issue a preliminary injunction if the moving party demonstrates

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‘either a combination of probable success on the merits and the possibility of irreparable injury or

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that serious questions are raised and the balance of hardships tips sharply in his favor.’” Martin

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v. International Olympic Comm., 740 F.2d 670, 675 (9th Cir. 1984) (quoting William Inglis &

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Sons Baking Co. v. ITT Continental Baking Co., 526 F.2d 86, 88 (9th Cir. 1975) (emphasis in

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original)). See also Alliance for the Wild Rockies v. Cottrell, 622 F.3d 1045, 1049-50 (9th Cir.

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2010).

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On April 19, 2012, the undersigned issued findings and recommendations that

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defendants’ motion to dismiss be granted and this action be dismissed in its entirety. In light of

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that recommendation, plaintiff fails to demonstrate a strong likelihood of success on the merits.1

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Preliminary injunctive relief is accordingly not warranted.

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Accordingly, IT IS HEREBY ORDERED that the hearing date of August 29,
2012 on plaintiff’s motion for sanctions is vacated; and

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IT IS HEREBY RECOMMENDED that plaintiff’s motion for sanctions (dkt. no.
25), construed as a motion for preliminary injunctive relief, be denied.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within

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fourteen days after being served with these findings and recommendations, any party may file

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written objections with the court and serve a copy on all parties. Such a document should be

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captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the

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Plaintiff’s claim under HAMP was specifically addressed in the findings and
recommendations: “Plaintiff’s seventh cause of action is predicated on plaintiff’s contention that
defendants have not followed the guidelines under the Home Affordable Modification Program
(“HAMP”). As previously noted by the District Judge in the order on the motion for preliminary
injunction, there is no private right of action against a lender under HAMP. See Pantoja v.
Countrywide Home Loans, Inc., 640 F.Supp.2d 1177 (N.D. Cal. 2009); see also Wigod v. Wells
Fargo Bank, N.A., 2012 WL 727646 at *24 (7th Cir. 2012) (absence of private right of action
under HAMP does not displace state cause of action). Accordingly, this claim is subject to
dismissal.” Findings and Recommendations, filed April 19, 2012 (dkt. no. 22) at 6:9-16.
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objections shall be served and filed within seven days after service of the objections. The parties

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are advised that failure to file objections within the specified time may waive the right to appeal

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the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: June 28, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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velasquez.pi

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