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Felicia Tuitama v. Bank of America

November 7, 2011

FELICIA TUITAMA
v.
BANK OF AMERICA, N.A.



The opinion of the court was delivered by: Honorable Philip S. Gutierrez, United States District Judge

CIVIL MINUTES - GENERAL

Present: The Honorable Philip S. Gutierrez, United States District Judge

Wendy K. Hernandez Not Present n/a Deputy Clerk Court Reporter Tape No.

Attorneys Present for Plaintiff(s): Attorneys Present for Defendant(s): Not Present Not Present

Proceedings: (In Chambers) Order Denying Plaintiff's Ex Parte Request for a Temporary Restraining Order

Before the Court is pro se Plaintiff Felicia Tuitama's ex parte application for a temporary restraining order. The Court finds the matter appropriate for decision without oral argument.

Fed. R. Civ. P. 78; L.R. 7-15. Having considered the papers submitted in support of the application, the Court DENIES the application.

Background

On November 2, 2011, Plaintiff Felicia Tuitama ("Plaintiff") filed this action against Defendant Bank of America, N.A. ("Defendant") in this Court. The Complaint asserts claims inter alia, wrongful foreclosure, fraud, quiet title, and unjust enrichment. In general, Plaintiff's claims are based on alleged irregularities in the foreclosure process and on her assertion that Defendant has no legal interest in her property. See Compl. Plaintiff does not dispute that Countrywide (identified in the Deed of Trust as "America's Wholesale Lender") was the Lender for her mortgage or that Defendant absorbed Countrywide, but claims that Countrywide passed the note and all legal interest therein to Lehman Brothers, who securitized the note and sold the security to private investors. Compl. ¶¶ 47-57.

Plaintiff received a notice of default and election to sell under the Deed of Trust on July 15, 2011. See Compl., Ex. 1, p. 94-96. The notice of default stated that Plaintiff's loan was delinquent in the amount of $130,742.86 and advised Plaintiff that she had the legal right to bring her account into good standing. See id. It also stated the property could be sold without any court action, but that no sale could take place until approximately 90 days from the date of the notice of default. See id. On October 24, 2011, Plaintiff received a Notice of Trustee's Sale indicating that the property would be sold on November 9, 2011. See Compl., Ex. 1, p. 99.

Plaintiff filed the present ex parte application for a temporary restraining order on November 4, 2011. See Dkt. # 4 (Nov. 4, 2011)). For the reasons that follow, the Court DENIES Plaintiff's ex parte application.

Legal Standard

The law on ex parte applications is well-settled in this circuit. In order to justify ex parte relief, the moving party must establish (1) that its cause will be irreparably prejudiced if the underlying motion is heard according to regular noticed motion procedures, and (2) that it is without fault in creating the crisis that requires ex parte relief, or that the crisis occurred as a result of ...


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