McMahon v. JPMorgan Chase Bank, N.A. et al
Filing
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ORDER signed by District Judge John A. Mendez on 08/24/17 ORDERING that the 47 Motion to Dissolve the 17 Preliminary Injunction is GRANTED. (Benson, A.)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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GORDON MCMAHON, an
individual;
No.
2:16-cv-1459-JAM-KJN
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Plaintiff,
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ORDER GRANTING DEFENDANT’S
MOTION TO DISSOLVE PRELIMINARY
INJUNCTION
v.
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JPMORGAN CHASE BANK, N.A.;
SELECT PORTFOLIO SERVICING,
INC.; and DOES 1 through 10
inclusive,
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Defendants.
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On August 23, 2016, this Court enjoined Defendant Select
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Portfolio Servicing (“SPS”) from conducting a foreclosure sale of
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304 Seawind Drive in Vallejo, California.
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No. 17.
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to Dissolve Prelim. Inj. (“Mot.”), ECF No. 47.
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McMahon (“McMahon”) opposes the motion.
8/23/2016 Order, ECF
SPS now asks the Court to dissolve the injunction.
Mot.
Plaintiff Gordon
Opp’n, ECF No. 60. 1
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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for July 11, 2017.
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I.
FACTS AND PROCEDURAL BACKGROUND
McMahon defaulted on his mortgage in 2007.
First Amended
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Complaint (“FAC”) ¶ 1, ECF No. 26.
McMahon applied for a loan
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modification several times.
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servicer, denied McMahon’s applications.
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86, 99, 101, 103.
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including his first cause of action for violation of the
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Homeowners Bill of Rights (“HBOR”) under California Civil Code
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Section 2924.12.
FAC ¶ 1.
SPS, McMahon’s loan
FAC ¶¶ 60, 61, 70, 81,
McMahon sued SPS, alleging six claims,
FAC at 19.
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McMahon moved for a preliminary injunction under Section
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2924.12 of the HBOR, which states that “[i]f a trustee’s deed
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upon sale has not been recorded, a borrower may bring an action
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for injunctive relief to enjoin a material violation of Section
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. . . 2923.6.”
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oppose the motion.
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Court enjoined SPS from proceeding with foreclosure “until there
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has been compliance with California Civil Code section[s] 2923.6
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and 2924.12.”
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Cal. Civ. Code § 2924.12(a)(1).
SPS did not
See Adviento Decl. ¶ 4, ECF No. 13.
The
8/23/2016 Order at 1.
On November 25, 2016, McMahon submitted another loan
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modification application, which SPS denied.
FAC ¶¶ 102, 103.
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SPS then moved to dismiss McMahon’s claims.
Mot. to Dismiss, ECF
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No. 30.
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4/26/2017 Order at 4-6, 13.
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reconsider that ruling, which the Court denied.
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at 6, ECF No. 64.
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The Court dismissed McMahon’s HBOR claim with prejudice.
II.
McMahon moved the Court to
8/24/2017 Order
OPINION
A district court has ‘wide discretion’ to dissolve, modify,
or reconsider a preliminary injunction based on a change in
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factual or legal circumstances.
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Inc., 284 F.3d 1091, 1098 (9th Cir. 2002).
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an injunction under Section 2924.12(a)(1), the “enjoined entity
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may move to dissolve [the] injunction based on a showing that the
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material violation has been corrected and remedied.”
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Code § 2924.12(a)(2).
A&M Records, Inc. v. Napster,
If a court has issued
Cal. Civ.
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A.
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The Court has dismissed with prejudice McMahon’s HBOR
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claims.
Change in Legal Circumstances
4/26/2017 Order at 4-6, 13.
The preliminary injunction
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was issued pursuant to Section 2924.12(a)(1) and conditioned
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upon SPS’s compliance with Section 2923.6.
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under which McMahon moved for the preliminary injunction, the
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injunction can no longer stand.
8/23/2016 Order at
Because the Court has dismissed with prejudice the claim
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B.
Remedy of Alleged Violation
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SPS has also submitted evidence demonstrating that “the
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loan modification process has been completed twice during the
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pendency of the litigation.”
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subsequent loan modification reviews complied with 2923.6 and
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2924.12, therefore warranting dissolution of the injunction.
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Mot. at 5.
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mumerous documents that clearly demonstrate that it has
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considered and denied two additional applications from McMahon.
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Adelman Decl., ECF No. 47-2.
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Mot. at 6.
SPS argues these two
SPS supports this argument with a declaration and
McMahon responds that the Court should not dissolve the
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injunction because SPS has not complied with Section
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2923.6(f)(2), which requires that a servicer denying a loan
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modification “based on investor disallowance” provide “the
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specific reasons for the investor disallowance.”
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§ 2923.6(f)(2).
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sufficient to show that SPS did not comply with Section 2923.6
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because any failure to provide specific reasons for investor
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denial was immaterial in light of the many other reasons SPS
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denied McMahon’s application.
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Cal. Civ. Code
SPS responds that McMahon’s argument is not
Mot. at 6.
Under the HBOR, a borrower is entitled to an injunction
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only for a “material” violation.
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§ 2924.12(a)(1).
Cal. Civ. Code
An HBOR violation is material if “any such
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violation prejudiced [the plaintiff’s] ability to obtain a loan
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modification.”
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2353 MMC, 2015 WL 13425101, at *1 (N.D. Cal. Jul. 17, 2015).
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McMahon’s only argument for materiality is that “based on the
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U.S. Treasury online NPV calculator, Plaintiff qualifies for a
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HAMP modification.”
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cites to support this contention, however, explicitly states
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“you may be eligible for a HAMP modification” and
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“CheckMyNPV.com provides only an estimate of a servicer’s NPV
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evaluation.”
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added).
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motion for reconsideration, ECF No. 64, McMahon cannot show
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materiality by citing to a website that explicitly indicates its
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results are an estimate and may differ from the lender’s
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results.
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Castillo v. Wells Fargo Bank, N.A., No. C-15-
Opp’n at 10.
The exhibit that McMahon
McMahon Decl., Exh. 6 at 1, ECF 33-2 (emphasis
As discussed in the Court’s order denying McMahon’s
McMahon has no remaining HBOR claims that entitle him to
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injunctive relief and SPS has shown that it has materially
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complied with the HBOR.
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and dissolves the preliminary injunction issued on August 23,
The Court therefore grants SPS’s motion
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2016.
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III.
ORDER
For the reasons set forth above, the Court GRANTS SPS’s
motion to dissolve the August 23, 2016 preliminary injunction.
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IT IS SO ORDERED.
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Dated: August 24, 2017
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