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Greg Edwards v. Wachovia Mortgage

May 26, 2011

GREG EDWARDS,
PLAINTIFF,
v.
WACHOVIA MORTGAGE, A DIVISION OF WELLS FARGO BANK, N.A., WORLD SAVINGS BANK, FSB, IRVINE FUNDING CORPORATION, CAL-WESTERN RECONVEYANCE CORPORATION, DOES 1-10, DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matter before the Court is the Ex Parte Application for a Temporary Restraining Order Re: a Preliminary Injunction filed by Plaintiff. (ECF No. 31).

BACKGROUND

On August 24, 2010, this case was removed from the Superior Court for the County of San Diego. (ECF No. 1). On August 31, 2010, Defendant Wells Fargo, who was "sued erroneously" as Wachovia Mortgage and World Savings Bank, FSB, filed a Motion to Dismiss. (ECF No. 6).

On February 10, 2011, the Motion to Dismiss was granted and Plaintiff was given leave to file a First Amended Complaint. (ECF No. 16). On March 11, 2011, Plaintiff filed a First Amended Complaint. (ECF No. 18).

On March 28, 2011, a Joint Motion to Grant Plaintiff Leave to File Second Amended Complaint was filed (ECF No. 22) which was granted (ECF No. 23).

On April 7, 2011, Plaintiff filed a Second Amended Complaint. (ECF No. 24). On April 8, 2011, Defendant Wells Fargo filed a Motion to Dismiss the Second Amended Complaint. (ECF No. 26). On April 24, 2011, Plaintiff filed an Opposition. (ECF No. 29). On May 2, 2011, Defendant filed a Reply. (ECF No. 30).

On May 16, 2011, Plaintiff filed the Ex Parte Application for a Temporary Restraining Order Re: a Preliminary Injunction. (ECF No. 31). On May 20, 2011, Defendant Wells Fargo filed an Opposition. (ECF No. 33).

ALLEGATIONS OF THE COMPLAINT

Plaintiff owns a house located at 3343 Bayside Walk #B, San Diego, CA 92109 ("the Property"). (ECF No. 24 at 2 ¶ 3). In July 2007, Defendants Irvine Funding Corp. and Derek Taber offered to refinance Plaintiff's loan to provide Plaintiff with a lower monthly mortgage payment of about $3,000 and a fixed-interest rate. Id. at 3 ¶¶ 11,14-15. Plaintiff listed his accurate income on his application, but Defendants did not show him "what exact amounts were actually stated in respect to his income on the loan application." Id. at 4 ¶¶ 21, 23. Plaintiff's loan application lists his employer as "California Aerospace Manufacturing," but Plaintiff has never been employed by "California Aerospace Manufacturing." Id. at ¶ 24. The debt-to-income ratio on the loan was in excess of the industry standard of 35%, the approval of the loan was "unreasonably outside of industry standard guidelines in underwriting procedures," and the actual finance charge "well outside tolerance limits." Id. at ¶¶ 28, 30, 35. "Based on the foregoing facts, Plaintiff began having difficulty paying his mortgage." Id. at ¶ 39.

Plaintiff requested a loan modification. Defendant Wells Fargo's agent "informed Plaintiff that they would not review his account unless [Plaintiff] stopped making mortgage payments." Id. at 5 ¶ 41. Defendant Wells Fargo's agent "assured Plaintiff that his account would not go into a 'default status while [his] account was in review but that he had to stop making payments' or words to that effect." Id. at ¶ 42. Plaintiff stopped making payments but he has not been offered a loan modification. A Notice of Default was recorded, which "clearly misrepresent[ed] that [Defendant] had made contact as necessary under [California Civil] Code. [section] 2923.5 and provided options to avoid foreclosure." Id. at ¶ 43.

The Complaint asserts seven claims as follows: (1) intentional misrepresentation seeking monetary damages; (2) fraudulent concealment seeking monetary damages; (3) constructive fraud seeking monetary damages; (4) breach of fiduciary duty seeking monetary damages; (5) violation of the Real Estate Settlement Procedures Act seeking monetary damages and rescission; (6) violation of California Civil Code Sections 2923.5 and 2923.6 seeking declaratory relief; (7) violation of California Business and Professions Code Section 17200 seeking monetary damages. Id. at 13-23.

CONTENTIONS OF THE PARTIES

Plaintiff moves the Court for an Order that "Defendants are ordered to refrain from foreclosing upon and selling Plaintiff's home until the Court can hold a hearing on whether a preliminary injunction should issue." (ECF No. 31-1 at 11). Plaintiff contends that a Trustee's Sale is set for May 31, 2011. Plaintiff contends that there was fraud in the origination of the loan as alleged in the Complaint. Plaintiff contends that Defendant failed to strictly comport with California's non-judicial foreclosure requirements on the grounds that the Notice of Trustee Sale was posted on Plaintiff's door on May 12, 2011, giving him 19 instead of the required 20 days notice and the Notice of Trustee Sale did not include a specific declaration. Plaintiff contends that he has alleged facts to support a claim of fraud in the factum, fraud in the inducement, and fraudulent concealment. Plaintiff contends that he intends to name the agent broker of Defendant Irvine Funding as a Defendant an assert a claim of fraudulent concealment against him. Plaintiff contends that his claim of promissory estoppel is now ripe because his loan ...


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