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Lopez v. Bank of America


September 13, 2010


The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

Order Denying Request for Temporary Restraining Order

Plaintiff Jose Luis Lopez, proceeding pro se, has filed a Complaint against Defendant Bank of America, N.A., alleging breach of fiduciary duty, negligence, common law fraud, breach of the implied covenant of good faith and fair dealing, intentional infliction of emotional distress, and violation of the Truth in Lending Act ("TILA") and the Real Estate Settlement Procedures Act ("RESPA"). Along with his Complaint, Plaintiff filed a petition for temporary injunction [Doc. No. 4]*fn1 as well as a petition for restraining order ("TRO") [Doc. No. 3]. Plaintiff states Defendant Bank of America has scheduled a foreclosure sale for the week of September 15, 2010, and asks the Court to enjoin that sale pending resolution of his claims. Nothing in the record indicates Plaintiff has served Defendant Bank of America with either the Complaint or the motion for temporary restraining order.

Under Rule 65(b) of Federal Rules of Civil Procedure, the Court may issue a TRO if "specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition" and "the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required." The purpose of the TRO is "preserving the status quo and preventing irreparable harm just so long as necessary to hold a hearing, and no longer." Granny Goose Foods, Inc. v. Brotherhood of Teamsters Local No. 70, 415 U.S. 423, 439 (1974) (citations omitted). In order to obtain a TRO or a preliminary injunction, the plaintiff must show that he is "likely to prevail on the merits." Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 666 (2004).

Here, Plaintiff's complaint is primarily a general attack upon the lending practices of Defendant and other lenders over the past ten years. Plaintiff alleges violation of TILA and RESPA, but does not refer to any particular section of either of those laws. Plaintiff does not provide copies of any of the loan documents in support of his allegations, and also fails to plead any of his state law claims with sufficient particularity to allow the Court to determine whether he is "likely to prevail on the merits."

With regard to RESPA, Plaintiff alleges Defendant "charged fees to Petitioner that were in violation of the limitations imposed by the Real Estate Settlement Procedures Act as said fees were simply contrived and not paid to a third party vendor." [Complaint, Doc. No. 1, p. 14.] However, the remedy for a violation of RESPA is monetary damages and costs, not injunctive relief. Gray v. Central Mortg. Co., 2010 WL 1526451 (N.D. Cal. 2010) (citing 12 U.S.C. § 2605, which provides for the payment of actual damages, costs, and attorneys fees for plaintiffs alleging a violation of that section). Furthermore, although violations of TILA may justify injunctive relief, Plaintiff in his complaint fails to allege with any particularity what disclosures Defendant was required to but failed to make.

Loss of one's home is clearly a serious injury. Kerr v. American Home Mortg. Servicing, Inc., 2010 WL 3154551 (S.D. Cal. 2010). Nonetheless, Plaintiff is only entitled to a TRO if he shows both a risk of immediate and irreparable injury coupled with some likelihood of success on the merits. Ashcroft, 542 U.S. at 666. Here, he has not satisfied such showing. Therefore, the Court DENIES the motion for temporary injunction [Doc. No. 3].

Plaintiff is directed to serve the complaint and motion for preliminary injunction on Bank of America pursuant to Rule 4 of the Federal Rules of Civil Procedure. Upon Plaintiff's filing of a proof that such service has been effected, upon written request by Plaintiff, the Court will set a hearing date and briefing schedule with regard to Plaintiff's motion for preliminary injunction [Doc. No. 4.]


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