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Aguilar v. Citimortgage

June 4, 2010


The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge


This matter is before the court on the motion of plaintiff Pasqual Aguilar ( "plaintiff" or "Aguilar") for a preliminary injunction preventing defendant Citimortgage, Inc. ("CITI") from continuing any foreclosure, eviction, or other ejectment proceedings from the property located at 8711 Los Banos Way, Elk Grove, CA 95624 (the "Property"). Defendant opposes the motion. The court heard oral arguments on the motion on June 4, 2010. For the reasons set forth below, plaintiff's motion is DENIED.


In June 2003, plaintiff purchased the Property. (Decl. of Pasqual Aguilar in Supp. of Preliminary Injunction ("Aguilar Decl."), filed Apr. 23, 2010, at 2; Ex. D to Decl. of Jennifer Oakes in Supp. of Def.'s Opp'n ("Oakes Decl."), filed May 26, 2010.) Defendant is the servicer under the Deed of Trust. (Oakes Decl. ¶ 1.)

In or around November 2008, plaintiff contacted defendant to discuss the possibility of a loan modification as a result of a financial hardship. (Aguilar Decl. at 2.) An unnamed representative informed plaintiff that CITI would not work with plaintiff because he was not currently in breach of his loan terms. (Id.) Plaintiff was advised to stop making payments for a period of three months, at which time defendant would consider a loan modification. (Id.) Plaintiff stopped making his loan payments. (Id.)

On or about February 18, 2009, defendant sent a Notice of Delinquency to plaintiff. (Oakes Decl. ¶ 4.) On March 2, 2009, CITI's Loss Mitigation department was contacted by plaintiff, who indicated that his job had decreased and resulted in financial difficulties. (Id. ¶ 5.) On or about April 1, 2009, CITI's Loss Mitigation department contacted plaintiff via telephone and offered to enter into a temporary forbearance agreement for three months, whereby he would make payments of $650 due April 15, 2009, May 15, 2009, and June 15, 2009. (Id. ¶ 6.) Plaintiff made these three payments. (Aguilar Decl. at 3.)

In or around May 2009, plaintiff sent all documents requested by defendant necessary to process a loan modification.

(Id.) When plaintiff contacted defendant in July 2009, he was told that defendants had no documents in the computer related to a loan modification. Plaintiff resubmitted the same documents. (Id.)

On July 15, 2009, CITI made telephone contact with plaintiff, advised plaintiff that he had a right to request a subsequent meeting, assessed plaintiff's financial situation, and discussed option to assist with the delinquency. (Oakes Decl. ¶ 7.)*fn1 Plaintiff did not request a subsequent meeting. (Id.) Plaintiff was also provided the toll-free telephone number made available by the United States Department of Housing and Urban Development ("HUD") to find a HUD-certified housing counseling agency. (Id.) Plaintiff was advised of these rights again on August 24, 2009 and August 28, 2009. (Id.) Plaintiff contends that in August 2009, defendant informed him that they had received the loan modification documents and that they were actively working on obtaining a loan modification. (Aguilar Decl. at 3.)

In or around September, 2009, plaintiff contacted defendant to check on the status of his loan modification. (Aguilar Decl. at 3.) At that time, defendant informed him that it had no documentation in the system of any request for loan modification nor did they have any documents necessary for a loan modification. (Id.) Plaintiff immediately again sent the paperwork. (Id.)

On September 9, 2009, a Notice of Default was recorded. (Oakes Decl. ¶ 8.) The Notice of Default included a declaration that the mortgagee, beneficiary, or authorized agent had contacted the borrow or tried with due diligence to contact the borrow as required by California Civil Code § 2923.5. (Id.)

On January 7, 2010, a Notice of Trustee's Sale was filed. (Oakes Decl. ¶ 9; Ex. B to Oakes Decl.) The foreclosure sale was held on March 15, 2010, and the Property was purchased by CITI for $179,340.74. (Oakes Decl. ¶ 10.) A Trustee's Deed Upon Sale was recorded on April 1, 2010. (Id. ¶ 11; Ex. C to Oakes Decl.) Plaintiff was contacted by a lawyer and given a 90 day notice to quit. (Aguilar Decl. at 4.)

After February 18, 2009, plaintiff never cured the delinquency on his mortgage, reinstated his loan, or attempted any credible tender of all sums due and ...

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