Nelson LAC v. Nationstar Mortgage LLC

Filing 41

ORDER granting 38 EX PARTE application signed by Judge Kimberly J. Mueller on 12/28/15. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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NELSON LAC,

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Plaintiff,

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No. 2:15-cv-00523-KJM-AC

v.

ORDER

NATIONSTAR MORTGAGE, LLC,

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Defendant.

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This matter is before the court on plaintiff Nelson Lac’s second ex parte

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application for a temporary restraining order barring the foreclosure sale of his home. ECF No.

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38.

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Lac filed a complaint in this court on March 9, 2015. ECF No. 1. He alleges the

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defendant, Nationstar Mortgage LLC, did not comply with California Civil Code section 2923.55

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before initiating foreclosure proceedings. Id. ¶ 9. Specifically, Lac alleges Nationstar did not

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respond to several letters requesting a home mortgage loan modification before it recorded a

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notice of default in late 2014. See id. ¶¶ 3–7. The court granted Lac’s motion to proceed in

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forma pauperis on March 18, 2015. ECF No. 4. The United States Marshals Service completed

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service, and a summons was returned executed and filed on the docket on August 24, 2015. ECF

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No. 11. Nationstar did not file a timely responsive pleading. On September 17, 2015, Lac filed a
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“Motion for Entry of Default” against Nationstar. ECF No. 12. Only several weeks after Lac

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filed this motion did Nationstar file a motion to dismiss, which the court later struck. ECF Nos.

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17, 30.

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On September 20, 2015, Lac filed his first ex parte application for a temporary

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restraining order, notifying the court a foreclosure sale had been scheduled for October 13, 2015.

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ECF No. 13. After a hearing, this court granted Lac’s motion, as unopposed in part. ECF No. 24.

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Accordingly, the court enjoined Nationstar from conducting any nonjudicial foreclosure sale on

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the property until sixty days after the order was filed. Id.

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On November 18, 2015, the court ordered the clerk of the court to enter default

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against Nationstar. ECF No. 30. The clerk entered default on the same day. ECF No. 31.

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Because the damages he sought are not readily ascertainable, Lac filed a motion for entry of

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default judgment against Nationstar. ECF No. 32-1. In the same motion, Lac requested the court

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permanently enjoin Nationstar barring the foreclosure sale of his home, and award attorney’s fees.

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Id. This motion currently is set for hearing before Magistrate Judge Allison Claire on January 13,

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2016. ECF No. 35.

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On December 7, 2015, Lac filed the current ex parte application to enjoin

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Nationstar from engaging in a foreclosure sale. ECF No. 38. In his moving papers, Lac states

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that a foreclosure sale was set to occur on December 22, 2015. Id. In its opposition to the ex

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parte application, Nationstar represents the foreclosure sale has been postponed to February 2,

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2016. ECF No. 39. Nationstar does not in substance oppose enjoining a sale from occurring in

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December 2015. See id. The court construes Lac’s application to the court as unopposed.

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Lac’s ex parte application to enjoin Nationstar from engaging in a December 2015

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foreclosure sale is hereby GRANTED. Accordingly, Nationstar Mortgage LLC, and its agents

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and assigns, are hereby ORDERED to refrain from taking any action to alienate title in 7575

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Citrus Avenue, Sacramento, California 95823, from Mr. Nelson Lac. In light of Nationstar’s

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representation to the court, and the pending motion for default judgment, Nationstar is

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ENJOINED from conducting any nonjudicial foreclosure sale on the Citrus Avenue property

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before February 2, 2015.

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IT IS SO ORDERED.
DATED: December 28, 2015.

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UNITED STATES DISTRICT JUDGE

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