Velasquez v. Chase Home Finance LLC et al

Filing 6

ORDER signed by Judge Lawrence K. Karlton on 2/29/12 GRANTING 5 Motion for TRO. All defendants are temporarily restrained for 14 days from foreclosing upon the real property. A hearing is set for Preliminary Injunction for 3/12/2012 at 10:00 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. (Donati, J)

1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
8
FOR THE EASTERN DISTRICT OF CALIFORNIA
9
10

RODOLFO VELAZQUEZ,
NO. CIV. S-12-0433 LKK/CKD PS

11
12

Plaintiff,
v.
O R D E R

13

CHASE HOME FINANCE LLC,
FANNIE MAE, NDEx WEST LLC,

14
Defendants.
/

15
16

Pending before the court is an application by plaintiff for

17

a Temporary Restraining Order to prohibit the foreclosure sale of

18

plaintiff’s home, scheduled for March 1, 2012.
I. Standard

19
20

Fed.

R.

Civ.

P.

65

injunctions

provides
or

authority

temporary

to

issue

21

preliminary

22

Ordinarily, a plaintiff seeking a preliminary injunction must

23

demonstrate that it is “[1] likely to succeed on the merits, [2]

24

that he is likely to suffer irreparable harm in the absence of

25

preliminary relief, [3] that the balance of equities tips in his

26

favor, and [4] that an injunction is in the public interest.”
1

restraining

either

orders.

Am.

1

Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th

2

Cir. 2009) (quoting Winter v. Natural Res. Def. Council, 129 S. Ct.

3

365, 374 (2008)). The requirements for a temporary restraining

4

order are largely the same.

5

Brush & Co., 240 F.3d 832, 839 (9th Cir. 2001); see also Wright and

6

Miller, 11A Fed. Prac. & Proc. Civ. § 2951 (2d ed.). After Winter,

7

the

8

balancing the elements of the preliminary injunction test. “The

9

‘serious questions’ approach survives Winter when applied as part

10

of the four-element Winter test. In other words, ‘serious questions

11

going to the merits’ [rather than a likeliness of success on the

12

merits] and a hardship balance that tips sharply toward the

13

plaintiff can support issuance of an injunction, assuming the other

14

two elements of the Winter test are also met.” Alliance For The

15

Wild Rockies v. Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011).

Ninth

Circuit

modified

Stuhlbarg Int’l Sales Co. v. John D.

its

“sliding

scale”

approach

to

16

A TRO is an emergency measure, intended to preserve the status

17

quo pending a fuller hearing on the injunctive relief requested.

18

II. Analysis

19

A. Likeliness of Success on the Merits

20

In his complaint, plaintiff alleges that he had a written and

21

oral

agreement

with

22

plaintiff

23

plaintiff’s financial situation, Chase would process plaintiff’s

24

loan modification application. Plaintiff alleges that he provided

25

all of the requested documents in 2008, in May 2011, and again in

26

January 2012. Plaintiff also alleges that defendant Chase has not

provided

defendant
Chase

Chase

with

2

Bank

certain

(“Chase”)
documents

that

if

regarding

1

reviewed or processed his loan modification applications, in breach

2

of the parties’ oral and written agreements. Plaintiff alleges that

3

absent such a breach, plaintiff would have been offered a loan

4

modification, and would have been able to afford his payments and

5

avoid foreclosure.

6

Plaintiff also alleges that defendants’ conduct constitutes

7

fraud, negligence, violation of RESPA, violation of California’s

8

Unfair Competition Law, disability discrimination, and wrongful

9

foreclosure.

10

In this case, the court finds that plaintiff’s allegations,

11

if proven, raise a “serious question” going to the merits of

12

plaintiff’s breach of contract claim.

13

B. Irreparable Harm

14

If

the

court

does

not

issue

a

preliminary

injunction,

15

plaintiff’s home is likely to be sold at foreclosure on March 1,

16

2012. The loss of one’s personal residence is an irreparable harm.

17

See, e.g. Sundance Land Corp. V. Community First Federal sav. And

18

Loan Ass’n., 840 F.2d 653 (9th Cir. 1988)(loss of real property,

19

because it is unique, is an irreparable injury). In this case,

20

plaintiff has made the requisite showing of risk of irreparable

21

harm.

22

C. Balance of the Equities

23

According to the complaint, plaintiff has severe physical

24

disabilities. He has owned the property that is the subject of this

25

action for more than 20 years and has made substantial payments on

26

the loan. If the foreclosure were to occur, plaintiff would be
3

1

ejected from his home.

2

Chase Bank may be harmed by a delay in the foreclosure of the

3

subject property, but the court finds that the balance of equities

4

tips sharply in plaintiff’s favor.

5

D. The Public Interest

6

It is in the public interest to require lenders to comply with

7

the California and Federal statutes enacted to protect homeowners

8

from unnecessary foreclosures. The court finds, therefore, that the

9

public interest weighs in favor of granting plaintiff’s preliminary

10

injunction.

11

III. Conclusion

12

The court finds that plaintiff is entitled to a temporary

13

restraining order because he has raised a serious question going

14

to the merits of his case, the balance of equities tips sharply in

15

his favor, he will be irreparably harmed in the absence of an

16

injunction, ad the public interest weighs in favor of issuing an

17

injunction.

18

Accordingly, the court ORDERS as follows:

19

[1]

All

20

fourteen

21

property located at 426 Idora Avenue, Vallejo, CA 94591.

22

[2] A hearing is set for a preliminary injunction on

23

this matter for March 12, 2012 at 10:00 a.m.

24

[3]

25

plaintiff

26

submitted not later than seven (7) days prior to the

The

defendants

are

temporarily

restrained

(14)

from

foreclosing

upon

court

days

will

parties

rely
unless

4

on

previous
additional

the

briefing
briefing

for
real

from
is

1

hearing on the preliminary injunction. Defendants SHALL

2

file an opposition to the preliminary injunction no

3

later than seven (7) days prior to the hearing.

4

IT IS SO ORDERED.

5

DATED:

February 29, 2012.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
5