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Michael Bowe v. American Mortgage Network

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


October 11, 2011

MICHAEL BOWE, PLAINTIFF,
v.
AMERICAN MORTGAGE NETWORK, INC.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; CALIFORNIA RECONVEYANCE COMPANY; JP MORGAN CHASE BANK, NA; BANK OF AMERICA, NA, DEFENDANTS.

The opinion of the court was delivered by: Dean D. Pregerson United States District Judge

ORDER GRANTING PLAINTIFF'S APPLICATION FOR TEMPORARY RESTRAINING ORDER [Dkt. No. 2]

This matter comes before the court on Plaintiff Michael Bowe's application for a temporary restraining order ("TRO"). After reviewing and considering the materials submitted by Plaintiff, the court GRANTS the application.

I. BACKGROUND

On October 11, 2011, Plaintiff filed a verified complaint alleging seven causes of action, including violations of California Civil Code § 2923.5 and California Civil Code § 2924f, against Defendants in connection with their attempt to foreclose upon Plaintiff's home, located at 3958 Keeshen Drive, Los Angeles, California 90066. Also on October 11, 2011, Plaintiff filed an application for a Temporary Restraining Order ("TRO"), seeking to halt a foreclosure sale scheduled for October 12, 2011.

II. Legal Standard

The Supreme Court set forth the standard for assessing a motion for preliminary injunction in Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365, 376 (2008). "Under Winter, plaintiffs seeking a preliminary injunction must establish that (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) a preliminary injunction is in the public interest." Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir. 2009).

III. Discussion

Having reviewed Plaintiff's pleadings and without the benefit of an opposition from Defendants, the court concludes that Plaintiff has made a showing of likelihood of success on the merits and that the balance of hardships weighs heavily in favor of issuing the TRO.

Plaintiff asserts that Defendants failed to comply with California Civil Code § 2923.5, which requires that a mortgagee, beneficiary, or authorized agent contact, or attempt to contact, a borrower to discuss options for the borrower to avoid foreclosure before filing a Notice of Default. A foreclosure sale cannot proceed without a valid Notice of Default. Mabry v. Superior Court, 185 Cal.App.4th 208, 223 (2010). Plaintiff has also alleged that Defendants failed to provide him with proper notice of trustee's sale, as required by California Civil Code § 2924f. A foreclosure sale cannot be made absent proper notice. Cal. Civ. Code § 2924f(b)(1).

Plaintiff has, therefore, shown a likelihood of success on the merits. The improper sale of Plaintiff's home in the absence of a TRO would like cause Plaintiff immediate, irreparable harm. It does not appear that Defendants will suffer any great injury should a TRO issue. Further, given the improprieties alleged here, the court concludes that a TRO would benefit the public interest in maintaining the integrity of California's non-judicial foreclosure procedures.

Therefore, at this time, the court is persuaded that a TRO should issue. The court will consider Defendants' arguments at the upcoming hearing for a preliminary injunction.

Accordingly, it is hereby ordered that Defendants and Defendants' respective agents, employees, representatives, and all persons acting under Defendants' direction are enjoined from foreclosing on the certain real property located at 3958 Keeshen Drive, Los Angeles, California 90066, or from taking any further action in an attempt to foreclose on or conduct a trustee's sale of Plaintiff's residence.

IV. CONCLUSION

For the foregoing reasons, the court GRANTS Plaintiff's application for a TRO. In addition, a Preliminary Injunction Hearing is set for Thursday, October 20 2011 at 10:00 a.m.

IT IS SO ORDERED.

20111011

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