Mclean v. Aurora Loan Servicing et al

Filing 20

ORDER denying 16 Motion for Preliminary Injunction. Signed by Judge Larry Alan Burns on 10/3/11. (kaj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ANGELA MCLEAN,

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CASE NO. 11cv0455-LAB (NLS)
Plaintiff,

ORDER DENYING MOTION FOR
PRELIMINARY INJUNCTION

vs.
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AURORA LOAN SERVICING, etc., et al.,

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Defendants.

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Plaintiff Angela Mclean moves for a preliminary injunction to grant access to her

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online mortgage account and to return her monthly mortgage payment to its pre-suit amount.

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Mclean alleges that Defendant Aurora Loan Servicing raised her monthly mortgage payment

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and locked her out of her online account in retaliation for filing of this suit, which contests the

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assignment of her mortgage to Aurora and its alleged refusal to engage in a fair loan

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modification process. (Compl. at ¶¶ 12–20.) Mclean has failed to demonstrate that she will

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likely suffer irreparable harm absent the granting of her motion for a preliminary injunction.

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I. DISCUSSION

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A preliminary injunction is “an extraordinary and drastic remedy” that may only be

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awarded upon a clear showing that the plaintiff is entitled to such relief. Munaf v. Green,

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553 U.S. 674, 689–90 (2008) (quoting 11A Wright & Miller, Federal Practice & Procedure

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§ 2948 (2d ed. 1995)). There are four elements a plaintiff must clearly demonstrate in order
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to obtain a preliminary injunction: (1) likelihood of success on the merits; (2) likelihood of

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irreparable harm absent the preliminary injunction; (3) the balance of equities favors the

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plaintiff; and (4) the injunction is in the public interest. See Winter v. Natural Resources Def.

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Council, Inc., 555 U.S. 7, 20 (2008). However, if a plaintiff cannot demonstrate the likelihood

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of irreparable harm absent the preliminary relief, the Court does not need to address the

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other three elements. See Ctr. for Food Safety v. Vilsack, 636 F.3d 1166, 1174 (9th Cir.

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2011).

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The harm the plaintiff seeks to prevent with the preliminary injunction must be both

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likely and irreparable. “Under Winter, plaintiffs must establish that irreparable harm is likely,

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not just possible, in order to obtain a preliminary injunction.” Alliance for Wild Rockies v.

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Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). “The key word in this consideration is

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irreparable. Mere injuries, however substantial, in terms of money, time and energy

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necessarily expended in the absence of a stay, are not enough.” Sampson v. Murray, 415

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U.S. 61, 90 (1974) (emphasis added) (citation and internal quotation marks omitted).

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The first harm that Mclean alleges will befall her without preliminary relief is her

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continued inability to access her online mortgage account. Mclean claims to have been

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“locked” out of her account since March 2011. However, Mclean has not alleged facts

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showing that her inability to access her account online has or will injure her irreparably.

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Mclean has been informed of her mortgage payments in advance of their due dates and has

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paid them in full each time. (Mot. for Prelim. Inj. at 6 (“Ms. Mclean continues to make her

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payments on time, despite the fact that she has no access to her account . . . .”)) Out of

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distrust for Aurora, she has declined to make payments by mail, and instead has used

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Western Union. (Decl. of Mclean, ¶ 7.) While having access to a mortgage account online

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would be more convenient than having to make payments by mail (or some alternative such

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as the one Mclean is using), denial of this convenience does not constitute irreparable harm.

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The second harm that Mclean alleges is the “financial harm of an unexplained

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increase in her monthly mortgage payment,” a purely economic harm. However, economic

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injury, by itself, does not constitute irreparable harm. See Rent-A-Center, Inc. v. Canyon TV
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& Appliance Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991).

Except in unusual

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circumstances, see Wright & Miller, supra, when a plaintiff can be made whole through

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pecuniary damages there is no irreparable harm. The increased mortgage payments do not

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justify the extraordinary measure of a preliminary injunction.

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Mclean alleges her property may be foreclosed on, and her credit rating damaged.

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This harm, however, is too speculative to merit the granting of the preliminary injunction.

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Mclean mistakenly relies on Simula v. Autoliv, 175 F.3d 716, 724 (9th Cir. 1999), for the

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proposition that she must demonstrate a “significant threat of irreparable injury.” (Mot. for

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Prelim. Inj. at 6.) But the standard is that irreparable harm must be likely. See Cottrell, 632

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F.3d at 1131. Though Mclean has been able to pay the increased mortgage payments, she

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says that because her husband’s pay was cut and because they are expecting a child, she

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cannot afford her current mortgage obligations. (Dec. of Mclean at ¶ 16.) While the loss of

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real property through foreclosure may constitute irreparable harm in some cases,1 Mclean

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has not shown the likelihood of foreclosure. Nor has she shown it is likely Aurora will

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damage her credit rating by reporting her non-payment of disputed amounts to credit

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bureaus.

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Mclean in passing also mentions Aurora’s failure to modify her loan, despite repeated

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requests and extensive correspondence, as giving rise to irreparable harm. (Mot. for Prelim.

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Inj. at 5:3–5.) But the complaint does not seek loan modification, and Mclean has no

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statutory right to loan modification. Mabry v.Superior Ct., 185 Cal.App.4th 208, 231 (Cal.

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App. 4 Dist. 2010).

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None of the Court’s discussion of these issues is intended as a ruling or comment on

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the merits. It may be that Mclean is being treated unfairly by Aurora. But the fact remains,

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she has not shown that she will likely suffer irreparable harm absent preliminary relief. The

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Court does not reach the other Winter factors See Ctr. for Food Safety, 636 F.3d at 1174.

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Mclean cites Sundance Land Corp. v. Cmty. First Fed’l Sav. & Loan Ass’n, 840 F.2d
653 (9th Cir. 1988) for the proposition that loss of real property may constitute a threat of
irreparable injury. But this does not address the problem here, that foreclosure is only
speculative at this point.
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II. CONCLUSION

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For these reasons, the Court holds that Mclean has not alleged and cannot show a

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likelihood of irreparable harm. Mclean’s motion for a preliminary injunction is therefore

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DENIED.

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IT IS SO ORDERED.
DATED: October 3, 2011

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HONORABLE LARRY ALAN BURNS
United States District Judge

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