Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ines v. Countrywide Home Loans

July 28, 2008

MERLINDA L. INES, PLAINTIFF,
v.
COUNTRYWIDE HOME LOANS, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge

ORDER

The matter before the Court is the Ex Parte Application for Temporary Restraining Order (Doc. # 9).

Background

On July 15, 2008, Plaintiff initiated this action by filing the Complaint (Doc. # 1). On July 15, 2008, Plaintiff also filed the Ex Parte Application for Temporary Restraining Order ("First Application for TRO") (Doc. # 3). In the First Application for TRO, Plaintiff requested that the Court stay execution of Plaintiff's eviction from her home on grounds that Defendants violated the Rosenthal Fair Debt Collection Practices Act under California law, Cal. Civ. Code § 1788, et seq. ("RFDCPA"), and the Fair Debt Collection Practices Act under federal law, 15 U.S.C. § 1692 ("FDCPA"), and therefore had no standing to foreclose on Plaintiff's property and force an eviction. On July 18, 2008, after hearing oral argument from both parties, the Court issued an order denying the First Application for TRO on grounds that Plaintiff failed to demonstrate a likelihood of success on the merits or that the balance of hardships tips sharply in her favor (Doc. # 7). The Court concluded that Plaintiff had not established a likelihood of success on the merits because Plaintiff failed to demonstrate that the FDCPA and RFDCPA apply to Defendants.

On July 25, 2008, Plaintiff filed a second Ex Parte Application for Temporary Restraining Order ("Second Application for TRO") (Doc. # 9). In the Second Application for TRO, Plaintiff states: "The requested temporary restraining order essentially seeks reinstatement to take care of my family and our possessions while the court determines right to claims against the subject property and who owns my home." Second Application for TRO, p. 3. Plaintiff asserts that she is entitled to relief under 12 U.S.C. section 2605(b), which "concerns the requirement that a borrower must be notified in writing of any assignment, sale or transfer of the serving of the loan to any other person." Id. at 5. Plaintiff asserts that there is a "very good probability of success" on the merits of her claim for violation of section 2605(b). Plaintiff states:

I did not receive any notice of the wrongful unlawful detainer action against me in time to respond. I was given the legal documents after a timely response was due. Inadvertently the unlawful detainer documents were mixed with some junk mail and I saw and opened the envelop after a response was due and thus had no opportunity to respond.

Id. at 3. Plaintiff also asserts that Defendants have failed to submit evidence to demonstrate that they are the holder in due course and of documentation of ownership.

Standard of Review

Rule 65(b) of the Federal Rules of Civil Procedure provides that a court may issue a TRO without notice to the adverse party where "specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant . . . ." FED. R. CIV. P. 65(b). Regardless of notice to Defendant, the standard for issuing a TRO is similar to the standard for issuing a preliminary injunction, and requires that the party seeking relief show either "(1) a combination of likelihood of success on the merits and the possibility of irreparable harm, or (2) that serious questions going to the merits are raised and the balance of hardships tips sharply in favor of the moving party." Homeowners Against the Unfair Initiative v. Calif. Building Industry Assoc., Civil No. 06CV152 JAH (WMc), 2006 U.S. Dist. LEXIS 97023, *4 (S.D. Cal. Jan. 26, 2006) (citing Immigrant Assistance Project of the L.A. County of Fed'n of Labor v. INS, 306 F.3d 842, 873 (9th Cir. 2002)). "[T]hese two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases." Dep't Parks & Rec. of Calif. v. Bazaar Del Mundo, Inc., 448 F.3d 1118, 1123 (9th Cir. 2006) (citations omitted). The underlying purpose of a temporary restraining order is to preserve the status quo and prevent irreparable harm before a preliminary injunction hearing may be held. Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers, 415 U.S. 423, 439 (1974); see also Reno Air Racing Ass'n v. McCord, 452 F.3d 1126, 1130-31 (9th Cir. 2006).

Analysis

The underlying basis of Plaintiff's Second Application for TRO is that Defendants violated the 12 U.S.C. section 2605 by failing to provide Plaintiff with sufficient notice of the foreclosure sale of her property and subsequent eviction. Plaintiff asserts that in light of this violation, Defendants did not have standing to foreclose on Plaintiff's property and force her eviction. Plaintiff requests that this Court "reinstate [Plaintiff's] rights to [her] home possessions." Second Application for TRO, p. 16.

12 U.S.C. section 2605 governs the servicing of mortgage loans and the administration of escrow accounts. Section 1605(b), on which Plaintiff relies, provides in full:

(b) Notice by transferor or loan servicing at time of transfer.

(1) Notice requirement. Each servicer of any federally related mortgage loan shall notify the borrower in writing of any assignment, sale, or transfer of the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.