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Robert De Vico, An Individual v. U.S. Bank

October 29, 2012

ROBERT DE VICO, AN INDIVIDUAL, PLAINTIFF,
v.
U.S. BANK, A CORPORATION; GMAC MORTGAGE U.S.A. CORPORATION, A CORPORATION; ETS SERVICES, LLC, A LIMITED LIABILITY COMPANY, AND DOES 1-10, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Margaret M. Morrow United States District Judge

PRELIMINARY INJUNCTION ORDER

On October 9, 2012, plaintiff Robert De Vico filed an ex parte application for a temporary restraining order, seeking to enjoin defendants U.S. Bank, GMAC Mortgage U.S.A. Corporation, ETS Services, and certain fictitious defendants from foreclosing on his house. The parties stipulated to postpone the sale of De Vico's home until October 30, 2012, allowing defendants time to oppose the application. Defendants filed an opposition on October 16, 2012, and the matter was heard on October 29, 2012.

Based on its finding that plaintiff had demonstrated a likelihood of success on the merits of his claim that defendants violated California Civil Code § 2923.5, and the possibility of irreparable harm, the court granted plaintiff's motion for a preliminary injunction to enjoin defendants from foreclosing on his home.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Pursuant to Rules 52 and 65 of the Federal Rules of Civil Procedure, the court adopts as the findings of fact and conclusions of law supporting its entry of a preliminary injunction its order granting plaintiffs' motion for a preliminary injunction dated October 29, 2012. A copy of the court's October 29, 2012 order is attached hereto as Exhibit "A," and incorporated herein as though fully set forth.

PRELIMINARY INJUNCTION

In accordance with the court's findings of fact and conclusions of law, IT IS HEREBY ORDERED that during the pendency of this action, defendants are enjoined from foreclosing on plaintiff's house.

This injunction is effective immediately upon proof that by 10:00 a.m. on October 30, 2012, plaintiff has placed $3,000 in the trust account of defendants' attorney. Plaintiff must place $3,000 in the trust account on the first of every month thereafter, beginning December 1, 2012, until this matter is resolved.

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CASE NO. CV 12-08440 MMM (FFMx)

ROBERT DE VICO, an individual, Plaintiff, v. U.S. BANK, a corporation; GMAC MORTGAGE U.S.A. CORPORATION, a corporation; ETS SERVICES, LLC, a limited liability company, and Does 1-10, inclusive Defendants.

ORDER GRANTING PLAINTIFFS' APPLICATION FOR PRELIMINARY INJUNCTION

Robert De Vico filed this action on October 2, 2012 against U.S. Bank, N.A., GMAC Mortgage, ETS Services, and several fictitious defendants.*fn1 The complaint alleges claims for wrongful foreclosure, slander of title, and violation of 12 U.S.C. § 2605(e).*fn2 That same day, plaintiff filed an application for temporary restraining order seeking to prevent defendants from foreclosing on his house.*fn3 Because De Vico had not filed proofs of service, his application was denied without prejudice.*fn4 Plaintiff thereafter submitted proofs of service on U.S. Bank,*fn5 GMAC*fn6 , and ETS,*fn7 and refiled his application for a restraining order.*fn8 The parties stipulated to postpone the sale of De Vico's house until October 30, 2012, allowing defendants time to oppose the application.

As noted, De Vico alleges claims for wrongful foreclosure; slander of title; and violation of the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2605(e). He seeks preliminary and permanent injunctive relief, a judgment canceling various loan instruments, and an order quieting title to his property.

I. BACKGROUND

De Vico received title to property located at 3380 Deronda Drive, Los Angeles, California 90038 ("the subject property") on January 9, 2001.*fn9 On November 3, 2005, he obtained a loan from T.J. Financial, which was secured by a deed of trust on the subject property.*fn10 The deed of trust was recorded and named MERS as the beneficiary, acting solely as the nominee for the lender.*fn11

On December 12, 2011, an assignment of the deed of trust was recorded, which transferred all beneficial interest in the deed of trust to U.S. Bank as trustee "for RMFSI 2005S9."*fn12 Two days later, a substitution of trustee was recorded, pursuant to which ETS became the trustee under the deed of trust.*fn13 On October 1, 2012, ETS recorded a notice of default and election to sell the property under the deed of trust.*fn14 ...


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