Perry et al v. NationaL Default Servicing Corporation (NDSC) et al

Filing 14

ORDER granting 8 Motion for TRO by Judge Lucy H. Koh (lhklc2, COURT STAFF) (Filed on 8/5/2010)

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Perry et al v. NationaL Default Servicing Corporation (NDSC) et al Doc. 14 1 **E-Filed 8/5/2010** 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C a se Number: 10CV03167 LHK ORDER GRANTING APPLICATION FOR TEMPORARY RESTRAINING ORDER AND SETTING HEARING ON R E Q U E S T FOR INJUNCTIVE RELIEF 1 ROBERT PERRY; TAMMY M. REY, Plaintiffs, v. NATIONAL DEFAULT SERVICING CORPORATION; KONDAUR CAPITAL CORPORATION; EMC MORTGAGE CORPORATION; GMAC MORTGAGE LLC; MORTGAGE ELECTRONIC REGISTRATION SERVICE, INC.; AND ALL PERSONS UNKNOWN CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE ESTATE, LIEN OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT ADVERSE TO PLAINTIFFS' TITLE, OR ANY CLOUD UPON PLAINTIFFS' TITLE THERETO; and DOES 1-100, Defendants. Case Number: 10CV03167 LHK ORDER1 GRANTING APPLICATION FOR TEMPORARY RESTRAINING ORDER AND SETTING HEARING ON REQUEST FOR INJUNCTIVE RELIEF [re: docket no. 8] On June 25, 2010, Plaintiffs Robert Perry and Tammy M. Rey ("Plaintiffs") filed the This disposition is not designated for publication in the official reports. Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 instant action in the San Benito Superior Court against Defendants National Default Servicing Corporation, Kondaur Capital Corporation, EMC Mortgage Corporation, GMAC Mortgage LLC, Mortgage Electronic Registration Service, Inc., Unknown Persons Claiming Any Legal Or Equitable Right, Title, Estate, Lien or Interest in the Property Described in the Complaint Adverse to Plaintiffs' Title, or Any Cloud Upon Plaintiffs' Title Thereto; and Does 1-100 (collectively, "Defendants") alleging violations of the Truth in Lending Act ("TILA"), 15 U.S.C. 1601, et seq and of California law. On July 2, 2010, in response to Plaintiffs' motion filed the same day, the state court issued an ex parte temporary restraining order ("TRO") enjoining Defendants from transferring ownership interest in the subject property located at 1383 Perry Court, Hollister, CA 95023 ("the Property") and setting the matter for further hearing on July 22, 2010. Defendants thereafter removed this action to federal court on July 20, 2010, two days before the scheduled hearing set by the state court. See Dkt. No. 1. Defendants also rescheduled their scheduled sale of the Property to August 6, 2010. Today, August 5, 2010, Plaintiff filed the instant application in this Court. The foreclosure sale remains scheduled for tomorrow. Plaintiffs allege that they were not aware of the date of the foreclosure sale until this week. See Dkt. No. 8 at 3. Having considered Plaintiffs' application and Defendants' opposition thereto, this court finds that irreparable harm will result to the movant before all the Defendants may be heard in opposition, and that the Plaintiffs were unable to provide Defendants with more than one day's notice due to the timing of the scheduled sale. Therefore, good cause appearing, a hearing on Plaintiffs' request for injunctive relief is hereby scheduled for Friday, August 13, 2010 at 1:30 p.m. Any further opposition by Defendants shall be filed by Tuesday, August 10, 2010; any reply shall be filed by Thursday, August 12, 2010. Pending that hearing and until further order of the Court, Defendants shall be temporarily restrained from proceeding with any sale of or otherwise transferring any ownership interest in the Property. 2 C a se Number: 10CV03167 LHK ORDER GRANTING APPLICATION FOR TEMPORARY RESTRAINING ORDER SETTING HEARING ON R E Q U E S T FOR INJUNCTIVE RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 C a se Number: 10CV03167 LHK ORDER GRANTING APPLICATION FOR TEMPORARY RESTRAINING ORDER SETTING HEARING ON R E Q U E S T FOR INJUNCTIVE RELIEF IT IS SO ORDERED. DATED: August 5, 2010 LUCY H. KOH United States District Judge

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