Calleja v. Bank of America Corporation et al

Filing 44

ORDERED that P's # 7 Motion for Preliminary Injunction is GRANTED. FURTHER ORD that Mr. Pankopf will draft a preliminary injunction order. FURTHER ORD that P's # 8 Motion to Remand is GRANTED. ( Certified copy of Order and PACER docket sheet mailed to 2nd Judicial Clerk on 7/27/2011 ) Signed by Chief Judge Robert C. Jones on 7/25/2011. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ALBERT CALLEJA,
Plaintiff,

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v.

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BANK OF AMERICA CORPORATION, et
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Defendants.

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3:11-cv-439-RCJ-RAM
ORDER

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Currently before the Court are Plaintiff’s Motion for a Preliminary Injunction (#7) and
Motion to Remand to State Court (#8). The Court heard oral argument on July 19, 2011.
BACKGROUND

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On June 21, 2011, Defendants Bank of America Corporation, Bank of America, N.A.,

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BAC Home Loans Servicing, LP, and Recontrust Company, N.A. (collectively “BAC

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Defendants”) filed a petition for removal to this Court and attached Plaintiff’s 27-page

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complaint. (Pet. for Removal (#1) at 1, 8). In addition to suing the BAC Defendants, Plaintiff

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also named Joseph Kammann, a Nevada resident, as a defendant. (Id. at 8, 10). Kammann

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purchased the property at issue at a foreclosure sale. (Id. at 10).

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Plaintiff’s complaint alleged the following. On July 1, 2008, Bank of America purchased

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Countrywide Financial Corporation. (Id. at 9). The Mortgage Electronic Registration Systems,

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Inc. (“MERS”) was named as the beneficiary on the deed of trust for the property located at

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41 Sandlering Court, Sparks, NV 89441. (Id.). In July 2010, Plaintiff retained iModification,

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LLC, a modification firm, to assist him with the modification of his loan with Bank of America
and Bank of America acknowledged that representation. (Id. at 10). On November 2, 2010,

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during the modification process, Bank of America caused a notice of default to be recorded.

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(Id.). Bank of America did not comply with NRS § 107.086 because Bank of America did not

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mail him a form giving him an election to opt into Nevada’s foreclosure mediation program.

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(Id.). Bank of America told Plaintiff that he did not have to worry about the notice of default

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because it would not foreclose on him while he was in the process of modifying his loan. (Id.).

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On December 8, 2010, Bank of America notified Plaintiff that it had received his modification

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package and would give him a response within 30 days. (Id.). Bank of America did not

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respond within that time period and, instead, on February 16, 2011, Bank of America recorded

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a notice of trustee’s sale and set it for March 7, 2011. (Id.). Bank of America told Plaintiff that

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it would not foreclose on his house while he was in the modification process. (Id.). On March

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16, 2011, Bank of America told Plaintiff that he did not qualify for the Home Affordable

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Mortgage Program (“HAMP”) and gave him 30 days to appeal its decision. (Id. at 11). Plaintiff

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appealed. (Id.). While the decision was on appeal, Bank of America reset the trustee’s sale

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for May 24, 2011, while telling Plaintiff that it would reconsider him for a modification and

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asked him to resubmit the same documentation. (Id.). Bank of America breached its promise

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by foreclosing on his house on May 24, 2011. (Id.). When Plaintiff contacted Bank of America

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they told him the foreclosure was a mistake and that it would rescind the sale. (Id.). Several

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days later, Bank of America told Plaintiff that it was too late and that it would not rescind the

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sale. (Id.).

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Plaintiff alleged nine causes of action including: (1) injunctive relief because Defendants

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violated the foreclosure act; (2) declaratory relief that deeds of trusts with MERS in the chain

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of title are not enforceable; (3) slander of title; (4) fraud; (5) set aside foreclosure sale/quiet

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title; (6) tortuous breach of the implied duty of good faith and fair dealing; (7) breach of

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contract and the covenant of good faith and fair dealing; (8) promissory estoppel; and (9)

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violation of Nevada’s Deceptive Trade Practices Act. (Id. at 25-32).

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LEGAL STANDARD

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Federal Rule of Civil Procedure 65(a) allows a court to issue a preliminary injunction on

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notice to an adverse party. The Ninth Circuit employs two sets of criteria for evaluating a
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request for preliminary injunctive relief. Under the “traditional test,” the movant must establish:

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“(1) a strong likelihood of success on the merits, (2) the possibility of irreparable injury to the

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plaintiff if preliminary relief is not granted, (3) a balance of hardships favoring the plaintiff, and

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(4) advancement of the public interest (in certain cases).” Beardslee v. Woodford, 395 F.3d

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1064, 1067 (9th Cir.2005) (citation omitted). As to the second element, the Supreme Court

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recently clarified that a plaintiff seeking an injunction must demonstrate that irreparable harm

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is likely, not just possible. Winter v. NRDC, Inc., 555 U.S. 7, 129 S.Ct. 365, 375-76,172

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L.Ed.2d 249 (2008). Under the “alternative test,” the plaintiff can meet its burden by showing

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“either a combination of probable success on the merits and the possibility of irreparable injury

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or that serious questions are raised and the balance of hardships tips sharply in his favor.”

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Beardslee, 395 F.3d at 1067 (citation and internal quotation marks omitted). “These two

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alternatives represent ‘extremes of a single continuum,’ rather than two separate tests.” Id.

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(citations omitted).
DISCUSSION

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I.

Motion for Preliminary Injunction (#7)

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In response to this Court’s oral order that Plaintiff supplement his motion for preliminary

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injunction with affidavits from iModification, Plaintiff submitted the affidavit of Lauro Aranda,

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the iModification agent/resolutions officer authorized to assist Plaintiff in his loan modification

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with BAC Defendants. (Aranda Decl. (#33) at 1-2). Aranda’s declaration and accompanying

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exhibits demonstrate that, on May 19, 2011, a BAC representative from the Office of the CEO

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and President advised Aranda that she would assign a negotiator to Plaintiff’s case and

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postpone the foreclosure sale date. (Id. at 6). On May 20, 2011, Aranda spoke to another

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BAC representative in the Office of the CEO and President who advised him that a Jeffrey

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Murkel had been assigned as the negotiator for the postponement. (Id.). On May 24, 2011,

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another BAC representative in the Office of the CEO and President told Aranda that a Marisol

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Parra had been assigned as the negotiator for the postponement. (Id.). On May 26, 2011,

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Aranda spoke to Dan Abila, a BAC representative in the Office of the CEO and President, who

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told Aranda that BAC was resciding the sale because of a mistake on BAC’s end. (Id.). Abila
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stated that Parra had neglected to postpone the sale date and misinformed everyone that she

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did postpone the foreclosure sale. (Id.). On May 26, 2011, Abila told Aranda that he would

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rescind the sale and that he was taking over the file. (Id.). On June 1, 2011, Abila stated that

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he would not be rescinding the sale because there was a “missing item letter” in Calleja’s file.

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(Id.; Abila Emails (#33-1) at 3). In Aranda’s email to Abila, Aranda notes that Calleja received

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the documents on the day his house was sold. (Abila Emails (#33-1) at 2). Abila responded

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that the Office of the CEO and President considered the “matter closed” and that Calleja would

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have to take it to litigation. (Id.).

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Calleja’s declaration demonstrates that on May 23, 2011, BAC wrote Calleja a letter

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informing him that it would reconsider him for a loan modification but that he needed to submit

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more documentation and had to fax the documents to BAC by May 24, 2011. (BAC Letter

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(#35-3) at 2). The Fed Ex package slip demonstrates that Calleja received the letter on May

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24, 2011, the day BAC foreclosed on his home. (Id. at 9).

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In this case, Calleja demonstrates a strong likelihood of success on his promissory

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estoppel claim. To establish promissory estoppel four elements must exist: “(1) the party to

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be estopped must be apprised of the true facts; (2) he must intend that his conduct shall be

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acted upon, or must so act that the party asserting estoppel has the right to believe it was so

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intended; (3) the party asserting the estoppel must be ignorant of the true state of facts; (4)

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he must have relied to his detriment on the conduct of the party to be estopped.” Pink v.

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Busch, 691 P.2d 456, 459 (Nev. 1984). Here, a BAC representative knew that she had not

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postponed the foreclosure sale but informed others, including Calleja, that she had. Calleja

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believed that the foreclosure sale scheduled for May 24, 2011, had been postponed based on

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BAC’s representations. Calleja did not know that the BAC representative had not postponed

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the foreclosure sale. Calleja relied on BAC’s representation to his detriment because BAC

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foreclosed on his house on the day he was attempting to re-file loan modification documents

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at BAC’s request. If preliminary relief is not granted, Calleja will suffer irreparable injury

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because he will be dispossessed of his home. Additionally, the balance of hardships do favor

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Calleja because the BAC Defendants told Calleja that they were postponing the foreclosure
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sale in order for him to re-file the loan modification documents. However, before Calleja could

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re-file those documents, BAC Defendants sold his home. As such, the Court grants Calleja’s

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motion for a preliminary injunction (#7). As directed by the Court at oral argument, Mr.

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Pankopf is ordered to draft a preliminary injunction order.

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II.

Motion to Remand (#8)

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In its petition for removal, BAC Defendants alleged that this Court had diversity

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jurisdiction because Defendant Joseph Kammann was fraudulently joined to defeat diversity

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jurisdiction. (Pet. for Removal (#1) at 4-5).

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In its motion to remand, Plaintiff argues that Defendant Kammann is domiciled in Reno,

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Nevada, and is a necessary party to this action because he is the successor-in-interest to the

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property that was illegally foreclosed upon. (Mot. to Remand (#8) at 2). Additionally,

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Defendant Kammann has initiated eviction proceedings. (Id.).

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The Court agrees with Plaintiff and finds that Defendant Kammann is a necessary party

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to this action because he is the successor-in-interest to the property at issue. As such, the

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Court grants the motion to remand (#8) back to state court for lack of diversity jurisdiction.
CONCLUSION

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For the foregoing reasons, IT IS ORDERED that Plaintiff’s Motion for Preliminary
Injunction (#7) is GRANTED.

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IT IS FURTHER ORDERED that Mr. Pankopf will draft a preliminary injunction order.

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IT IS FURTHER ORDERED that Plaintiff’s Motion to Remand (#8) is GRANTED.

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DATED: This 25th

day of July, 2011.

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_________________________________
United States District Judge

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