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Gwendolyn Button v. Greenpoint Mortgage Funding

September 11, 2012

GWENDOLYN BUTTON, PLAINTIFF,
v.
GREENPOINT MORTGAGE FUNDING, INC.; AURORA LOAN SERVICES LLC; U.S. BANK; MORTGAGE ELECTRONIC REGISTRATION SYSTEM, INC.; AND QUALITY LOAN SERVICE CORP., DEFENDANTS.



The opinion of the court was delivered by: Otis D. Wright, II United States District Judge

O

ORDER DENYING PLAINTIFF'S MOTION FOR PRELMINARY INJUNCTION [7]

Pending before the Court is Plaintiff Gwendolyn Button's Motion for Preliminary Injunction. (ECF No. 7.) Button asks the Court to enjoin Defendants from foreclosing on her home, located at 19422 Jacobs Avenue, Cerritos, CA 90703, until this Court renders a judgment on the merits. Specifically, Button moves to enjoin Defendants based on her claims for: fraud; elder financial abuse; conversion; Truth In Lending Act ("TILA") violations; Unlawful, Unfair, and Fraudulent Business Practices Act ("UCL") violations; and wrongful foreclosure.*fn1

I.BACKGROUND

Button is the owner of real property located at 19422 Jacobs Avenue, Cerritos, CA 90703. (Compl. ¶ 1.) On April 21, 2007, Button executed an adjustable-rate note for $608,000 in favor of Defendant GreenPoint Mortgage Funding, Inc. (Id. ¶ 15.) The note was secured by a Deed of Trust executed on the same day, and was recorded on April 30, 2007. (Id.) Button negotiated the transaction with the help of her son, Richard Button, who was present at the signing and was a real-estate professional. (Opp'n 1--2.)

Shortly after closing, Button defaulted on her payments. (Hall Decl. ¶¶ 5--7.) Significant efforts were made by Aurora Loan Services LLC to restructure the loan; but Button continued to miss scheduled payments. (Id. ¶¶ 11, 12, 18, 19, 23--26.) Button was offered three workout agreements to reduce her monthly payment, including a payment plan that reduced her monthly payment to $1,377.50. (Id. ¶ 24.)

On July 23, 2010, after three years of attempts to avoid foreclosing on Button's residence, Quality Loan Service Corporation recorded a notice of default and an election to sell, as an agent for the beneficiary. (Opp'n 2.) The notice included a declaration by Aurora evidencing the steps taken to contact Button prior to recording. (Id.) A foreclosure sale was scheduled for July 19, 2012. (Id.) Button then filed her Complaint on June 25, 2012. (ECF No. 1.) The foreclosure sale scheduled for July 19, 2012, was stayed because of the Temporary Restraining Order issued by the Court. (ECF No. 11.)

II.LEGAL STANDARD

A preliminary injunction is an extraordinary remedy never awarded as of right. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). A plaintiff seeking a preliminary injunction must establish that: (1) it is likely to succeed on the merits; (2) it is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in its favor; and, (4) an injunction is in the public interest. Id. at 20; Perfect 10, Inc. v. Google, Inc., 653 F.3d 976, 979 (9th Cir. 2011). In each case, a court "must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief." Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542 (1987). Further, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction. Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982).

III.DISCUSSION

A.Likelihood of success on the merits

Button's Complaint alleges unlawful acts that fall into two categories: those relating to the origination of the loan; and those relating to the foreclosure of the loan. The Court divides the likelihood-of-success analysis into those two categories.

1.Origination-based claims -- statute of limitations

Defendants argue that Button's origination-based claims fail because they are time barred. (Opp'n 5--6.) To be valid, a claim must be asserted within the time allotted by statute. Fox v. Ethicon Endo-Surgery, Inc., 35 Cal. 4th 797, 806 (2005). ...


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