Lane v. CitiMortgage, Inc.

Filing 12

ORDER GRANTING TEMPORARY RESTRAINING ORDER signed by Judge Kimberly J. Mueller on 10/7/2014 ORDERING 7 Defendants and its agents are enjoined by this temporary restraining order from conducting a trustee sale of plaintiff's residence located a t 6771 Mt. Murphy Road, Coloma, CA; Plaintiff is directed to serve a copy of this order on all defendants and effect proof of service; this TRO shall remain in place until this court has issued an order on plaintiff's request for a preliminary i njunction; No bond is required at this time; the hearing for the preliminary injunction shall take place on 10/14/2014 at 2:30 PM in Courtroom 3; any supplemental brief in support may be filed by plaintiff and served on defendants no later than 10/8/2014, and any opposition shall be filed and served on plaintiff no later than 10/10/2014. (Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MELODY LANE,

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Plaintiff,

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No. 2:14-CV-02295 KJM KJN

v.

ORDER GRANTING TEMPORARY
RESTRAINING ORDER

CITIMORTGAGE, INC., and DOES 1 to
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Defendants.

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On October 3, 2014, plaintiff filed a complaint and an ex parte application for a

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temporary restraining order and preliminary injunction to enjoin defendants from conducting a

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foreclosure sale of her home. ECF No. 7. For the reasons below, the court GRANTS the motion.

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I.

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BACKGROUND
Plaintiff submitted a loan modification application on July 13, 2014. ECF No. 6

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¶ 24. In early August, plaintiff was notified that her loan modification application was complete.

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Id. ¶ 33. Shortly thereafter, however, plaintiff learned that her application was denied. Id. ¶ 35.

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Plaintiff alleges that the letter informing her of the denial of her application indicated that

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defendants used an incorrect value for the subject property and did not account for plaintiff’s

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income. Id. Accordingly, plaintiff appealed defendant’s decision. Id. ¶ 39. Plaintiff avers

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because she has not received any response concerning her appeal, her application for loan

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modification is still pending and, therefore, defendants cannot proceed with the foreclosure. Id.
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II.

LEGAL STANDARD

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A temporary restraining order may be issued upon a showing “that immediate and

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irreparable injury, loss, or damage will result to the movant before the adverse party can be heard

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in opposition.” FED. R. CIV. P. 65(b)(1)(A). The purpose of such an order is to preserve the

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status quo and to prevent irreparable harm “just so long as is necessary to hold a hearing, and no

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longer.” Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 439 (1974). In

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determining whether to issue a temporary restraining order, a court applies the factors that guide

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the evaluation of a request for preliminary injunctive relief: whether the moving party “is likely to

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succeed on the merits, . . . likely to suffer irreparable harm in the absence of preliminary relief,

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. . . the balance of equities tips in [its] favor, and . . . an injunction is in the public interest.”

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Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see Stuhlbarg Int’l. Sales Co. v.

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John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (stating that the analysis for

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temporary restraining orders and preliminary injunctions is “substantially identical”).

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III.

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ANALYSIS
A.

Likelihood of Success on the Merits
Plaintiff has met this first element. Plaintiff alleges a claim under California Civil

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Code § 2923.6(c), which provides, “If a borrower submits a complete application for a first lien

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loan modification offered by, or through, the borrower’s mortgage servicer, a mortgage servicer,

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mortgagee, trustee, beneficiary, or authorized agent shall not record a notice of default or notice

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of sale, or conduct a trustee’s sale, while the complete first lien loan modification application is

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pending.” Plaintiff has shown she filed a loan modification application on July 13, 2014. Lane

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Decl. ¶ 4, ECF No. 7-1. Plaintiff has further shown defendants denied that application on the

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basis of incorrect information, id. ¶ 6, and that she filed a timely appeal, but received no response,

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id. ¶¶ 7–8. The trustee sale remains in place and is scheduled for October 8, 2014. Id. ¶ 3.

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Accordingly, plaintiff has established a likelihood of success sufficient to support a temporary

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restraining order.

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B.

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Likelihood of Irreparable Harm, Balance of Equities & the Public Interest
Plaintiff has also made a sufficient showing on each of the remaining three

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elements. As to irreparable harm, plaintiff has shown immediate and irreparable injury will occur

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in the form of her loss of her residence if the foreclosure sale of her home proceeds as scheduled

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on October 8, 2014. Pls.’ App. TRO 3, ECF No. 7. Loss of plaintiff’s residence is a sufficient

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showing of irreparable harm. Kilgore v. Wells Fargo Home Mortgage, No. 12-0899, 2012 WL

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2195656, at *1 (E.D. Cal. June 13, 2012).

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In addition, the balance of equities favors plaintiff: she will lose her residence if
the sale goes forward, whereas defendants will be required to complete review of plaintiff’s

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appeal based on her completed application for loan modification before they proceed with the

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foreclosure sale, ECF No. 7 at 7. See Wrobel v. S.L. Pope & Associates, No. 07-1591, 2007 WL

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2345036, at *2 (S.D. Cal. June 15, 2007). Finally, a decision in plaintiff’s favor will serve the

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public interest by either confirming a foreclosure sale is the correct course for plaintiff’s home or

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avoiding a sale based on incorrect information, ECF No. 7 at 8–9. See Sencion v. Saxon

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Mortgage Servs., LLC, No. 10-3108, 2011 WL 1364007, at * 3 (N.D. Cal. Apr. 11, 2011);

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Sharma v. Provident Funding Associates, LP, No. 09-5968, 2010 WL 143473, at *2 (N.D. Cal.

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Jan. 8, 2010).

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C.

Bond
Federal Rule of Civil Procedure 65(c) provides that “[t]he court may issue a

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temporary restraining order . . . only if the movant gives security in an amount that the court

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considers proper to pay the costs and damages sustained by any party found to have been

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wrongfully . . . restrained.” District courts have wide discretion in fashioning the amount of the

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bond, and “the bond amount may be zero if there is no evidence the party will suffer damages

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from the injunction.” Connecticut Gen. Life Ins. Co. v. New Images of Beverly Hills, 321 F.3d

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878, 882 (9th Cir. 2003).

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Here, the court finds plaintiff is not required to post a bond because there is no

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evidence in the record that defendants will suffer damages from the restraining order. See

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Sencion, 2011 WL 1364007, at * 3 (“Because the hearing on the order to show cause will occur
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within the next ten days, [p]laintiff will not be required to post a bond at this time.”); Lyles v.

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Am.’s Servicing Co., No. 10-01482, 2010 WL 2629402, at *2 (E.D. Cal. June 29, 2010).

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Because for the limited purposes of the instant motion the relevant factors weigh in

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favor of a temporary restraining order, the court GRANTS plaintiff’s motion.

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IV.

CONCLUSION

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The court therefore orders as follows:

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(1)

Defendants and its agents are enjoined by this temporary restraining order

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from conducting a trustee sale of plaintiff’s residence located at 6771 Mt. Murphy Road, Coloma,

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California. Plaintiff is directed to serve a copy of this order on all defendants and effect proof of

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service.

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(2)

This temporary restraining order shall remain in place until this court has

issued an order on plaintiff’s request for a preliminary injunction.

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(3)

No bond is required at this time.

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(4)

The hearing for the preliminary injunction shall take place on October 14,

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2014 at 2:30 p.m. in Courtroom 3. Any supplemental brief in support may be filed by plaintiff

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and served on defendants no later than October 8, 2014, and any opposition shall be filed and

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served on plaintiff no later than October 10, 2014.

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IT IS SO ORDERED.
DATED:

October 7, 2014.

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UNITED STATES DISTRICT JUDGE

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