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Zinnel v. CitiMortgage Inc.

September 15, 2010

STEVEN K. ZINNEL, PLAINTIFF,
v.
CITIMORTGAGE, INC., A NEW YORK CORPORATION; CR TITLE SERVICES, INC., A DELAWARE CORPORATION; AND DOES 1 THROUGH 100, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER DENYING PLAINTIFF'S APPLICATION FOR A TEMPORARY RESTRAINING ORDER

On September 9, 2010, Plaintiff Steven K. Zinnel, proceeding in propria persona, filed an ex parte application for a temporary restraining order ("TRO") and preliminary injunction in which he seeks to enjoin the non-judicial foreclosure sale of his home, which is scheduled to occur on September 22, 2010. However, "[t]he court may issue a preliminary injunction only on notice to the adverse party." Fed. R. Civ. Pro. 65(a)(1). Plaintiff declares he "inform[ed] [Defendants that Plaintiff would be bringing the instant Application and Motion," and that a copy of the "fax/email is attached [to his declaration] as Exhibit 31." (Decl. Supp. Mot. TRO "Decl." ¶ 6.) Exhibit 31 is not attached to Plaintiff's Declaration, however, Exhibit 28 appears to be a copy of the notice Plaintiff sent. (Id. Ex. 28.)

Exhibit 28 does not indicate whether or not Plaintiff provided Defendants with a copy of his application; it appears that Plaintiff only informed them he would be seeking an injunction.

For the reasons stated below, Plaintiff's TRO application is DENIED.

I. LEGAL STANDARD

"Temporary restraining orders are governed by the same standard applicable to preliminary injunctions." Pimentel v. Deutsche Bank Nat. Trust Co., No. 09-CV-2264 JLS (NLS), 2009 WL 3398789, at *1 (S.D. Cal. Oct. 20, 2009); see also Stuhlbarg Intern. Sales Co., Inc. v. John D. Brushy and Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001)(stating the standards for issuing a TRO are "substantially identical" to those for issuing a preliminary injunction). Therefore, "[a] plaintiff seeking a [TRO] must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Am. Trucking Ass'n, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009)(quoting Winter v. Natural Res. Def. Council, Inc., --- U.S. ----, 129 S.Ct. 365, 374 (2008)). "A preliminary injunction is appropriate when a plaintiff demonstrates . . . that serious questions going to the merits were raised and the balance of hardships tips sharply in the plaintiff's favor." Alliance for the Wild Rockies v. Cottrell, --- F.3d ----, 2010 WL 2926463, at *7 (9th Cir. 2010). A TRO is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter, 129 S.Ct. at 376.

II. BACKGROUND

Plaintiff declares that in October 1995, Plaintiff and his now ex-wife purchased the real property located at 11966 Old Eureka Way, Gold River, California 95670 (the "Property"). (Decl. ¶ 18.) Plaintiff and his ex-wife executed a Promissory Note to borrow $294,550.00 plus interest at the fixed rate of 8.25 percent from Commerce Security Bank (the "Note"). (Id. Ex. 1.) The Note was secured by a Deed of Trust which was recorded in the Official Records in the Office of the Recorder of Sacramento County, California on October 27, 1995 ("Bank Deed of Trust"). (Id. Ex. 2.) The Bank Deed of Trust lists the beneficiary as the Commerce Security Bank and "its successors and/or assigns" and the trustee as the Stewart Title Guaranty Company. (Id.)

Plaintiff declares "as part of his marriage dissolution proceeding," he was awarded sole ownership of the Property. (Id. ¶ 20.) An Inter-spousal Transfer Deed was recorded on April 8, 2002. (Id. Ex. 3.) The same day Plaintiff executed a Promissory Note to borrow $80,000.00 from Derian Eidson and secured the loan with a Deed of Trust which was recorded on April 8, 2002, making it junior to the Bank Deed of Trust. (Id. ¶¶ 22-23; Ex. 4.)

Plaintiff declares "[i]n January 2009, [he] "began to experience severe financial problems, making it increasingly difficult for him to make the payment on the [Note]." (Id. ¶ 28.) Plaintiff declares he repeatedly contacted Defendant CitiMortgage Inc. ("Citi") and attempted to reduce his monthly mortgage payments and modify his loan. (Id. ¶¶ 33-56.)

On May 25, 2010 an Assignment of the Bank Deed of Trust was recorded (the "Assignment"). (Id. Ex. 5.) The Assignment was signed by Lisa Markham, listed as the Assistant Vice President of "DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE F/K/A BANKERS TRUST COMPANY OF CALIFORNIA, N.A. SUCCESSOR TRUSTEE BY OPERATION OF LAW TO BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, SUCCESSOR BY MERGER TO SECURITY PACIFIC NATIONAL BANK AS TRUSTEE BY CITIMORTGAGE, INC., AS SERVICING AGENT" and granted, assigned, and transferred to Citi all beneficial interest under the Bank Deed of Trust. (Id.) The same day a Substitution of Trustee was recorded, also executed by Lisa Markham, that substituted CR Title Services Inc. for Stewart Title of California as Trustee. (Id. Ex. 6.)

Plaintiff declares he "believes that Deutsche Bank National Trust Company . . . have never had a beneficial interest in the [Bank Deed of Trust] [or] . . . the ability to grant, assign, or transfer to CITI[;] . . . that Lisa Markham was not the Assistant Vice President of Deutsche Bank[;]" and therefore, the Assignment and Substitution of Trustee are "invalid as a matter of law." (Id. ¶¶ 58- 59, 60, 64.)

A Notice of Default was recorded on May 25, 2010, the content of which includes the statements: Plaintiff owed $34,472.16 in past due payments plus costs and expenses, as of May 20, 2010; "When [the Notice of Default is] recorded mail to: CR Title . . . ." (Id. Ex. 7.) Plaintiff declares he "believes that CR Title is not authorized by the beneficiary of the [Bank Deed of Trust] to record the [Notice of Default]." (Id. ¶ 66.) Plaintiff also declares he "believes that actual notice of the [Notice of Default] was not given to junior lien holder [Eidson] as required by California Civil Code 2924b(c)(1)[;]" and that the Notice of Default "is invalid as a matter of law." (Id. ¶¶ 67-68.)

Plaintiff declares after he became aware of the Notice of Default, he continued his efforts to stop the foreclosure by calling and writing letters to "numerous employees and executives of CITI, GMAC Residential Funding corporation, and their attorneys." (Id. ¶ 71.) Plaintiff sent multiple letters requesting documents he believed the Notice of Default specified he was entitled to, including the reinstatement amount and the Deed of Trust on which Citi was foreclosing. (Id. ¶¶ 72, 74, 80.) The Notice of Default states: ...


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