Urania Maria Lopez v. First Mangus Financial et al

Filing 10

Order by Hon. Ronald M. Whyte granting 2 Ex Parte Application for a Temporary Restraining Order. (rmwlc1, COURT STAFF) (Filed on 3/3/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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URANIA MARIA LOPEZ,

Case No. 15-cv-00933-RMW

United States District Court
Northern District of California

Plaintiff,
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v.

ORDER GRANTING EX PARTE
APPLICATION FOR A TEMPORARY
RESTRAINING ORDER

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FIRST MANGUS FINANCIAL, et al.,

Re: Dkt. No. 2

Defendants.
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Plaintiff Urania Maria Lopez moves for a temporary restraining order pursuant to Fed. R.

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Civ. P. 65(b) directing defendants to cease and desist from foreclosing upon the property located

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at 21 Boling Road, Watsonville, CA 95076. Dkt. No. 2. Plaintiff also seeks an order for

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defendants to appear and show cause why the court should not issue a preliminary injunction

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against all further foreclosure activity by defendants on the subject property. Id.

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Upon consideration of plaintiff Urania Maria Lopez’s ex parte application for a temporary

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restraining order and order to show cause, the court, having reviewed the complaint, pleadings,

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moving papers, and declarations submitted by plaintiff, and defendants’ opposition papers makes

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the following preliminary findings:

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1. The plaintiff is likely to succeed in demonstrating that defendant Quality Loan

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Servicing on behalf of Select Portfolio Servicing (“SPS”) informed plaintiff on

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ORDER GRANTING TRO
15-cv-00933-RMW

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December 24, 2014 that the planned foreclosure sale set for March 2, 2015 would

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be put on hold pending the outcome of plaintiff’s state court litigation against

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defendants, and that despite this assurance, she was recently informed on February

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26, 2015 that defendant SPS unilaterally lifted the hold Quality Loan Servicing had

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placed on the foreclosure sale, and that the sale would proceed as scheduled. Dkt.

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No. 2, at 2, 4. Plaintiff’s complaint seeks injunctive relief and damages for

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defendants’ alleged violation of the Fair Debt Collection Practices Act, 15 U.S.C. §

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1692, et seq., and the Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code

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§ 1788, et seq., and includes claims for Wrongful Foreclosure and Quiet Title. Dkt.

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No. 1. Plaintiff alleges in her complaint that the party seeking to enforce the subject

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United States District Court
Northern District of California

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loan (CWALT-Trust) failed to comply with a pooling and service agreement,

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which deprived CWALT-Trust of standing to enforce the subject loan. Dkt. No. 1,

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¶¶ 26-36. Based on its review of the complaint, the court is not convinced that

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plaintiff has standing to enforce the pooling and service agreement, as she was not

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a party to the contract. Nevertheless, the court finds that plaintiff may have

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standing to challenge the foreclosure sale based on the alleged representations by

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Quality Loan Servicing that the sale would be postponed pending the outcome of

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plaintiff’s state court action.

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2. An immediate and irreparable harm will occur to plaintiff as a result of the planned

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foreclosure sale of the subject property given Quality Loan Servicing’s

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representation and SPS’s subsequent unilateral decision to foreclose on the subject

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property; SPS will suffer little harm from the delay of the sale from the date of this

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order and the hearing on plaintiff’s application for a preliminary injunction;

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3. The harm to the plaintiff outweighs the harm to the legitimate interest of defendants
resulting from the granting the application; and

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ORDER GRANTING TRO
15-cv-00933-RMW

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4. As the foreclosure sale’s scheduled date has past, 1 the court’s decision on

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plaintiff’s TRO application is unusually time-sensitive, and therefore this order is

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issued without advance notice beyond that which has been given to defendants.
Application having been made, and the court having made the above preliminary findings,

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the court enters the following order pursuant to Fed. R. Civ. P. 65(b).

TEMPORARY RESTRAINING ORDER

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It is ORDERED, ADJUDGED, and DECREED that, pending a hearing on plaintiff’s order

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to show cause regarding a preliminary injunction, plaintiff’s application for a temporary

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restraining order is hereby GRANTED as follows:
Defendants shall immediately postpone the foreclosure sale which was set for March 2,

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United States District Court
Northern District of California

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2015, at 1:30 p.m. at 168 W. Alisal Street, Salinas, CA 93901, if such sale has not already taken

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place.

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It is FURTHER ORDERED that the Temporary Restraining Order shall remain in effect

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until the date for hearing on the Order to Show Cause set forth below, or such further date set by

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the court, unless defendants stipulate to or have not objected to the entry of a preliminary

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injunction. This Temporary Restraining Order is effective immediately upon plaintiff’s filing with

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the court security in the amount of $5,000 to cover SRS’s costs and damages if it is later found to

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have been wrongfully enjoined or restrained. See Fed. R. Civ. P. 56(c).

ORDER TO SHOW CAUSE

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It is FURTHER ORDERED that plaintiff’s application for an order to show cause

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regarding a preliminary injunction is hereby GRANTED as follows.
1. Defendants shall show cause before this court on March 13, 2015 at 9:00 a.m. why

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an order should not be entered granting plaintiff a preliminary injunction pursuant

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to Fed. R. Civ. P. 65. In particular, the parties should be prepared to discuss at the

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hearing the court’s concerns regarding: (1) whether plaintiff has standing to

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If the sale has already occurred, the application for a TRO is moot.
ORDER GRANTING TRO
15-cv-00933-RMW
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challenge the foreclosure sale; and (2) why plaintiff decided to forego her state

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court litigation in Monterey. The parties should each also be prepared to show what

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is owed on the subject loan and plaintiff should be prepared to show the factual

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basis for her failure to pay the amount owing.

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2. Plaintiff must serve its moving papers and this order on defendants on or before
12:00 noon on March 5, 2015.
3. Defendants opposition papers regarding the order to show cause, if any, shall be

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filed with the Clerk of Court and personally served or delivered by Federal Express

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(or other overnight delivery) upon the attorney for plaintiff by delivering copies
thereof to the Law Office of Gilbert E. Maines, located at 1320 Crooked Mile

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United States District Court
Northern District of California

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Court, Placerville, California, 95667, fax [phone], on or before 12:00 noon,

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March 10, 2015; and

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4. Plaintiff’s reply papers regarding the preliminary injunction, if any, shall be filed

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with the Clerk of the Court and personally served or delivered by Federal Express

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(or other overnight delivery) on defendants’ counsel, to be received on or before

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12:00 noon, March 12, 2015.

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IT IS SO ORDERED.
Dated: 5:00 p.m., March 3, 2015
______________________________________
Ronald M. Whyte
United States District Judge

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ORDER GRANTING TRO
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