Aguilar v. Aurora Loan Services, LLC et al

Filing 9

ORDER denying plaintiff's 3 Motion for Preliminary Injunction. Signed by Judge Larry Alan Burns on 2/15/12. (kaj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ADOLFO AGUILAR,

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CASE NO. 11CV3030-LAB (jma)
Plaintiff,

ORDER DENYING PLAINTIFF’S
MOTION FOR A PRELIMINARY
INJUNCTION

vs.
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AURORA LOAN SERVICES, LLC., et al.,

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Defendants.

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Aguilar alleges that Defendants America One Finance and First National Bank

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misrepresented his1 actual income on a home loan application in order to approve a loan with

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a “substantially high risk of default.” Aguilar did subsequently default on his loan. Now

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before the Court is his motion for a preliminary injunction to stop Aurora Loan Services, the

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loan servicer and holder of the deed of trust, from asserting ownership of his home and

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evicting him from it.

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Aguilar’s complaint isn’t completely clear about what he believes Aurora has done

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wrong. As best the Court can tell, in January 2009 Aguilar and Aurora agreed to some kind

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of loan modification, which Aguilar calls a “trial modification agreement.” Aguilar, for the next

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three months, made payments to Aurora pursuant to that modification. Rather than stick with

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this arrangement, however, Aguilar alleges that Aurora simply stopped working with him, and

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on June 11, 2009 purchased his home (from itself, really) in a trustee’s sale. (Compl. ¶ 61.)

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Aguilar’s complaint refers to Aguilar in the masculine and the feminine, but the Court
assumes Aguilar is a man. (See Compl. ¶¶ 56, 57.)
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11CV3030

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This story is straightforward enough, but other of Aguilar’s factual allegations confuse it.

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First, in his complaint, filed on December 28, 2011, he claims that “Aurora is the servicer of

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the note currently conducting a Trustee Sale on 7/18/2011 at 10:00 a.m.” (Compl. ¶ 7.)

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Second, Aguilar alleges that “Aurora sold at public auction Debtor’s residence even though

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Debtor and Debtor and Debtor’s counsel were actively negotiating a loan modification.”

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(Compl. ¶ 18.) If Aurora sold Aguilar’s home, though, in August of last year, then why does

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Aguilar seek a preliminary injunction to stop Aurora from asserting ownership?

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To obtain a preliminary injunction, Aguilar “must establish that he is likely to succeed

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on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief,

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that the balance of equities tips in his favor, and that an injunction is in the public interest.”

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Winter v. Natural Res. Def. Council, Inc., 129 S.Ct. 365, 374 (2008). He has failed to satisfy

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even the first prong. Rather than explain to the Court how or why he is likely to succeed on

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the merits, he simply asserts that he is and then cites a completely unrelated case from this

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district in which the Court found that a plaintiff was likely to succeed on her claims that she

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did not receive statutorily mandated loan disclosures as required under TILA and RESPA.

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See Moceri v. Plaza Home Mortgage, Case No. 11CV1060, Dkt. No. 4. Moreover, the Court

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questions Aguilar’s basic story. He has offered no evidence that Aurora had some free-

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floating obligation to modify his loan, no evidence that the “trial modification agreement” was

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binding on Aurora, and no evidence, beyond his own declaration, of the agreement itself.

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Looking at Aguilar’s complaint and preliminary injunction motion together, the Court

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finds he has not shown that his claim against Aurora for breaching the covenant of good faith

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and fair dealing is likely to succeed on the merits. His motion for a preliminary injunction is

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therefore DENIED.

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IT IS SO ORDERED.

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DATED: February 15, 2012

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HONORABLE LARRY ALAN BURNS
United States District Judge

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11CV3030