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Paula Tilley v. Ampro Mortgage

January 6, 2012

PAULA TILLEY, PLAINTIFF,
v.
AMPRO MORTGAGE, AN ARIZONA CORPORATION, ET AL. DEFENDANTS.



ORDER

On January 5, 2012, plaintiff filed an ex parte application for a temporary restraining order, seeking to prevent a trustee's sale of her house, set for January 6, 2012. Plaintiff did not indicate the time set for the sale. Defendants have opposed the motion, arguing plaintiff cannot demonstrate a likelihood of success on the merits, particularly as she has not tendered the indebtedness.

I. Background

On April 27, 2011, plaintiff filed a complaint, challenging the foreclosure of her home. On June 21, 2011, defendants filed a motion to dismiss. While this motion was pending, on August 26, 2011, plaintiff filed a motion for a preliminary injunction, seeking to enjoin the trustee's sale of her home. On November 28, 2011, the court granted the motion to dismiss, giving plaintiff leave to amend some of her claims, and denied the motion for a preliminary injunction. ECF No. 25.

On December 14, 2011, plaintiff filed her First Amended Complaint (FAC), amending some of the original claims and adding new claims. The FAC is comprised of six claims: (1) a violation of California Civil Code § 2923.5 against all defendants; (2) wrongful foreclosure against all defendants; (3) slander of title against all defendants; (4) declaratory and injunctive relief against all defendants; (5) promissory estoppel against all defendants; and (6) fraudulent misrepresentation as to all defendants. ECF No. 26.

Defendants have filed a motion to strike and to dismiss, currently set for March 9, 2012. ECF No. 27.

II. The Motion For A Preliminary Injunction

A. Standard

A temporary restraining order may be issued upon a showing "that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition." FED. R. CIV. P. 65(b)(1)(A). The purpose of such an order is to preserve the status quo and to prevent irreparable harm "just so long as is necessary to hold a hearing, and no longer." Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 439 (1974). In determining whether to issue a temporary restraining order, a court applies the factors that guide the evaluation of a request for preliminary injunctive relief: whether the moving party "is likely to succeed on the merits, . . . likely to suffer irreparable harm in the absence of preliminary relief, . . . the balance of equities tips in [its] favor, and . . . an injunction is in the public interest." Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008); see Stuhlbarg Int'l. Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (analyses for temporary restraining order and preliminary injunction "substantially identical").

B. Analysis*fn1

Plaintiff argues she is likely to succeed on the merits of her claims that the beneficiary of the deed of trust has not properly executed and recorded the assignment of the deed of trust, that the note cannot be transferred by way of assignment of the deed of trust, the assignment violates the provisions of the trust, the trustee is not the trustee identified on the Pooling and Servicing Agreement (PSA), the substitution of the trustee has not been properly executed and recorded by the beneficiary, and the notice of default and trustee's sale are "no good" because California Reconveyance Company (CRC) has not been properly substituted for the original trustee. ECF No. 29 at 4.

1. The Foreclosure In This Case

On June 9, 2006, plaintiff Paula Tilley and her husband Michael Tilley executed two deeds of trust, one in the amount of $622,000 and the second in the amount of $78,000, both relating to the property described as 8800 Ridge Road, Newcastle, California. ECF No. 33 at 6-34. The first deed of trust identifies the Tilleys as the borrowers; Ampro Mortgage, a division of United Financial Mortgage Corp., as the lender; Liberty Title Company as the trustee; and MERS as the nominee for the lender and the lender's successors and assigns, as well as the beneficiary under the security interest. Id. at 6.*fn2 The first deed of trust grants the power of sale to the trustee. Id. at 8. In addition, it notifies the borrowers that the note or a partial interest in the note, plus the deed of trust, could be sold without prior notice to the borrower. Id. at 15-16.

It also notifies plaintiff that there might be changes in the loan servicer unrelated to any sale of the note. Id. at 16. Finally, the deed provides that the lender has the option to appoint a successor trustee by an instrument executed by the lender and recorded in the county recorder's office. Id. at 17. These deeds were recorded in the Placer County Recorder's Office on June 15, 2006.

On November 3, 2009, Deborah Brignac, Vice President of MERS, signed an assignment of the deed of trust, assigning the deed and the note to U.S. Bank National Association, as trustee for WAMU Mortgage Pass Through Certificate, for WMALT Series 2006-AR8; this was recorded in Placer County on November 10, 2009 at 9:21:29 a.m. ECF No. 33 at 36. On November 10, 2009, at 9:21:33 a.m., the Recorder's Office recorded a substitution of trustee, substituting CRC as trustee. This was signed on November 3, 2009, by Deborah Brignac,*fn3 this time identified as Vice President of U.S. Bank National Association, as trustee for the WAMU Mortgage Pass-Through Certificate, by JP Morgan Chase Bank, as attorney-in-fact. Id. at ...


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