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Quintos v. One Mortgage Co.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


September 25, 2008

CHARITO DELOS REYES QUINTOS, PLAINTIFF,
v.
ONE MORTGAGE COMPANY, LLC; MORTGAGE MATTERS, INC.; COUNTRYWIDE HOME LOAN, INC.; RECONTRUST, INC., DEFENDANTS.

The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge

ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER DECISION

Plaintiff filed a Verified Complaint on September 24, 2008, alleging violations of the Truth in Lending Act (TILA), 15 U.S.C. § 1601, and the Real Estate Settlement Procedures Act (RESPA), 26 U.S.C. § 2605. Accompanying the complaint was a motion for a temporary restraining order ("TRO"), requesting the court enjoin a non-judicial foresclosure sale of his property set for October 2, 2008. Proof of service accompanying Plaintiff's filing showed service was initiated by first-class mail on September 24, 2008.

The Ninth Circuit has not articulated a specific test for temporary restraining orders. Ali v. United States, 932 F. Supp. 1206, 1208 (N.D. Cal. 1996). This court therefore uses the same tests applicable for preliminary injunctions. See Superior Servs., Inc. v. Dalton, 851 F. Supp. 381, 384 (S.D. Cal. 1994). Preliminary injunctive relief is available if the party meets one of two tests: (1) a combination of probable success and the possibility of irreparable harm, or (2) the party raises serious questions and the balance of hardship tips in its favor. Arcamuzi v. Continental Air Lines, Inc., 819 F.2d 935, 937 (9th Cir. 1987). "These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases." Id. Under either formulation, however, the party must demonstrate a "fair chance of success on the merits" and a "significant threat of irreparable injury." Id.

Plaintiff fails to demonstrate a likelihood of success on the merits for his claims for a fundamental reason - the claims are time-barred under the applicable statutes of limitations.

First, Plaintiff's claims relating to improper disclosures under TILA are subject to the one year statute of limitations period of 15 U.S.C. §1640(e) (any claim under this provision must be made "within one year from the date of the occurrence of the violation."). The complaint alleges Defendants violated TILA's disclosure rules by, among other things, failing to provide a copy of the signed completed loan documents. Compl. ¶ 13-14. While the court makes no findings with respect to the timeliness of these damage-related claims, it appears that some or all of the claims arising from the alleged disclosure deficiencies may be time barred as the alleged violations would have occurred at the time the loan closed on August 15, 2005.

Likewise, any TILA claim for rescission must be brought within three years of consummation of the transaction or prior to "the sale of the property, whichever occurs first." 15 U.S.C. §1635(f). Plaintiff's right to rescind the transaction expired on August 15, 2008, three years from the date he re-financed the loan. Compl. ¶ 12.

Second, Plaintiff's RESPA claims appear to be time-barred under the applicable one-year statute of limitations. 12 U.S.C. § 2614. Consequently, Plaintiff has failed to establish the requisite likelihood of success on the merits and irreparable harm.

In addition, service has not yet been effected on Defendants. In light of the above, Plaintiff's motion for a TRO is hereby DENIED without prejudice to further application based on a stronger showing under the Arcamuzi test as well as a showing of personal service effected on the defendants.

IT IS SO ORDERED.

20080925

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