York -v- Bank of America, et al

Filing 11

TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY A PRELIMINARY INJUNCTION SHOULD NOT ISSUE. Preliminary Injunction Hearing set for 6/17/2014 10:00 AM. Signed by Judge Richard Seeborg on 6/3/14. (cl, COURT STAFF) (Filed on 6/3/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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For the Northern District of California

United States District Court

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Case No. 14-CV-02471 RS

WILLIE YORK,
Plaintiff,
v.
BANK OF AMERICA, CHAMPION
MORTGAGE and DOES 1-50, inclusive,

TEMPORARY RESTRAINING
ORDER AND ORDER TO SHOW
CAUSE WHY A PRELIMINARY
INJUNCTION SHOULD NOT ISSUE

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Defendants.
____________________________________/

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I. TEMPORARY RESTRAINING ORDER

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In consideration of plaintiff Willie York’s application for a temporary restraining order, the

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supporting documents submitted therewith, and the complaint, this order finds that York is entitled

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to temporary injunctive relief. Although this case remains at the earliest stages of litigation, York

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has nonetheless demonstrated entitlement to a temporary restraining order under Federal Rule of

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Civil Procedure 65 for the limited purpose of preserving the relative positions of the parties pending

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further proceedings. See Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011)

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(temporary injunctive relief may be granted if moving party adequately shows: (1) there are serious

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questions going to the merits, (2) absent relief, there is a likelihood of irreparable harm, (3) that the

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balance of the equities tips sharply in movant’s favor, and (4) that issuance of injunctive relief

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serves the public interest). See also Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20

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(2008).

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14-CV-02471 RS
ORDER

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York is a 78-year-old homeowner who claims that Bank of America and Champion

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Mortgage, unless restrained, will cause an unlawful foreclosure sale tomorrow, June 4, 2014, of

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York’s home at 80 Conkling Street, San Francisco, California. According to York, defendants

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engaged in misrepresentation and various predatory lending practices to obtain an initial reverse

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mortgage on the property in 2007. York further alleges that in 2009, Bank of America obtained a

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second reverse mortgage through fraudulent means without his knowledge or consent. According to

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York, defendants’ conduct violated various state and federal laws, including the Truth in Lending

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Act, 15 U.S.C. § 1639, et seq., the Real Estate Settlement Procedures Act, 12 U.S.C. § 2602, et seq.,

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and the California Homeowner Bill of Rights. York, who has purportedly occupied the same

For the Northern District of California

United States District Court

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residence for forty-five years, will lose his home if the June 4 foreclosure sale is permitted to go

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forward.

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Defendants have not responded to York’s request for temporary relief. York lodged his

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complaint and application for a temporary restraining order on May 29, 2014. (ECF Nos. 1 and 2).

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That same day, defendants were ordered to file a written response, if any, by the afternoon of June 2,

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2014. (ECF No. 3). The same order instructed York to serve all relevant filings on defendants by

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May 30, 2014. On June 2, after the deadline passed without a response from defendants, York

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lodged two affidavits purporting to show that service had been effected on Bank of America and

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Champion Mortgage. As of the date of the issuance of this order, defendants still have not appeared

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or lodged any sort of response to York’s request.

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In the absence of a response from defendants, it is impossible to tell whether, or on what

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grounds, defendants would oppose York’s request. Nonetheless, York has demonstrated that he is

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entitled to a temporary restraining order to prevent the sale of his home. First, there are “serious

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questions going to the merits” of his claim that the 2009 reverse mortgage, which allegedly

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triggered the impending foreclosure sale, is invalid or subject to rescission. See Cottrell, 632 F.3d at

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1135. York avers that the mortgage was obtained through fraud or forgery. “A forged document is

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void ab initio and constitutes a nullity; as such it cannot provide the basis for a superior title as

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against the original grantor.” Schiavon v. Arnaudo Bros., 84 Cal. App. 4th 374, 380 (2000)

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(citation, quotation marks, and alterations omitted). He further alleges that defendants violated the
14-CV-02471 RS
ORDER

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California Homeowner Bill of Rights by, among other things, failing to contact him to discuss

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alternatives to foreclosure at least thirty days prior to recording a Notice of Default. These claims, if

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true, could bar defendants from executing a foreclosure sale of York’s home. Second, absent

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immediate injunctive relief, York will suffer the irreparable harm of losing his home. See Gonzalez

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v. Wells Fargo Bank, C 09-03444 MHP, 2009 WL 3572118 (N.D. Cal. Oct. 30, 2009) (“Since real

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property is considered unique, foreclosure on one’s property may constitute irreparable harm.”).

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Third, the balance of the equities tips sharply in plaintiff’s favor. While the threat of irreparable

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harm to York is significant, defendants will at most endure some inconvenience or slight financial

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loss if the sale is postponed pending a preliminary injunction hearing. See Jackmon v. Am’s

For the Northern District of California

United States District Court

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Servicing Co., C 11-03884 CRB, 2011 WL 3667478 (N.D. Cal. Aug. 22, 2011). Finally, “[t]he

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public interest is served by affording homeowners the opportunity to pursue facially valid claims

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before their homes are sold.” Id. (citation and quotation marks omitted). Accordingly, York

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satisfies all four elements of the test for temporary injunctive relief.

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As a consequence, and pending a hearing on the order to show cause as set forth below,

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defendants Bank of America and Champion Mortgage, their employees, agents, servants, assigns,

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and all those acting in concert with them, are hereby restrained and enjoined from directly or

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indirectly selling or attempting to sell the real property located at 80 Conkling Street, San Francisco,

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California. This temporary restraining order shall expire at the conclusion of the hearing on the

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order to show cause on June 17, 2014, unless extended by further order. See Fed. R. Civ. P.

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65(b)(2) (“order expires at the time after entry—not to exceed 14 days—that the court sets, unless

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before that time the court, for good cause, extends it for a like period”).

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Federal Rule of Civil Procedure 65(c) directs the court to require security from the moving

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party “in an amount that the court considers proper to pay the costs and damages sustained by any

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party found to have been wrongfully enjoined or restrained.” Here, however, there is no indication

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in the record that defendants will suffer any costs or damages by complying with this order, even if

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wrongfully issued. The district court retains discretion “as to the amount of security required, if

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any,” and in this instance York need not post any bond. Johnson v. Couturier, 572 F.3d 1067, 1086

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(9th Cir. 2009) (internal quotation marks and citations omitted) (emphasis in original).
14-CV-02471 RS
ORDER

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II. ORDER TO SHOW CAUSE

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Defendants are further ordered to show cause why a preliminary injunction should not issue

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upon dissolution of the temporary restraining order. A hearing on that matter will be held at 10:00

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a.m. on Tuesday, June 17, 2014 in Courtroom 3, 17th Floor, Phillip Burton Federal Building and

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U.S. Courthouse, 450 Golden Gate Avenue, in San Francisco, California, unless the parties agree to

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postpone the hearing with the court’s consent.

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IT IS SO ORDERED.

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For the Northern District of California

United States District Court

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Dated: 6/3/14
RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE

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14-CV-02471 RS
ORDER

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