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Sean M. Park, et al v. National City Mortgage Bank


December 6, 2010


The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge


This matter comes before the Court on Plaintiffs' ex parte motion for a temporary restraining order ("TRO") to prevent Defendants from foreclosing on Plaintiffs' property. Plaintiffs, who are proceeding pro se, filed the present case on November 22, 2010, and filed the present motion on November 29, 2010. It appears Plaintiffs have served copies of all of their filings on Defendant Quality Loan Service Corporation only. No party has filed an opposition to the motion.


BACKGROUND Plaintiffs allege they are the owners of real property located at 2011-2017 W. Island Avenue, San Diego, California. On August 3, 2005, Plaintiffs obtained a loan from Defendant National City Bank of Indiana to purchase the property. On March 22, 2010, National City Bank assigned its interest in the property to Defendant Green Tree Servicing LLC. On July 29, 2010, Defendant Green Tree, through Defendant Quality Loan Service Corporation, filed a Notice of Default on Plaintiffs' property.

On September 10, 2010, Defendant Green Tree filed a Substitution of Trustee for Plaintiffs' property substituting Defendant Quality Loan as trustee. On November 2, 2010, Defendant Quality Loan filed a Notice of Trustee's Sale on Plaintiffs' property, scheduling the sale for November 23, 2010. The sale has since been postponed to February 7, 2011.

Plaintiffs' allege that in March 2010 they entered into a contract with Defendant Green Tree to modify the loan on their property. Plaintiffs believed that this was a permanent loan modification, and they made the first three payments as required. In June 2010, Plaintiffs were informed that their request for a loan modification had been denied. Plaintiffs thereafter sent a qualified written request ("QWR") to Defendant Green Tree in which they disputed the debt and requested an accounting. Plaintiffs allege Defendants have not responded to Plaintiffs' QWR. Plaintiffs also allege that they arranged for a sale of the property in October 2010, but Defendants refused to proceed with that sale, instead opting to foreclosure on the property.

The First Amended Complaint alleges the following claims for relief: (1) violation of the Truth in Lending Act ("TILA"), (2) violation of California's Fair Debt Collection Practices Act ("the Rosenthal Act"), (3) violation of the federal Fair Debt Collection Practices Act ("the FDCPA"), (4) wrongful foreclosure, (5) violation of the Real Estate Settlement Procedures Act ("RESPA"), (6) breach of fiduciary duty, (7) intentional misrepresentation, (8) negligent misrepresentation, (9) violation of California Business and Professions Code § 17200, (10) breach of contract, (11) breach of the implied covenant of good faith and fair dealing, (12) quiet title, (13) injunctive relief, (14) rescission and (15) accounting.


DISCUSSION The purpose of a temporary restraining order is to preserve the status quo before a preliminary injunction hearing may be held; its provisional remedial nature is designed merely to prevent irreparable loss of rights prior to judgment. See Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers, 415 U.S. 423, 439 (1974) (noting that a temporary restraining order is restricted to its "underlying purpose of preserving the status quo and preventing irreparable harm just so long as is necessary to hold a hearing, and no longer.") The standard for issuing a temporary restraining order is identical to the standard for issuing a preliminary injunction. Lockheed Missile & Space Co., Inc. v. Hughes Aircraft Co., 887 F. Supp. 1320, 1323 (N.D. Cal. 1995). A party seeking injunctive relief under Federal Rule of Civil Procedure 65 must show "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'ns 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)).

Here, Plaintiffs have not shown that they are likely to succeed on the merits of any of their claims. Furthermore, in light of the postponement of the trustee's sale, Plaintiffs are unlikely to suffer irreparable harm in the absence of immediate and preliminary relief. In the absence of a showing that either of these elements has been met, Plaintiffs are not entitled to a temporary restraining order.


CONCLUSION For these reasons, Plaintiffs' ex parte motion for temporary restraining order is denied. IT IS SO ORDERED.


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