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Yeota Christie v. Morgan Stanley Mortgage Capital Holdings

October 30, 2012

YEOTA CHRISTIE, PLAINTIFF,
v.
MORGAN STANLEY MORTGAGE CAPITAL HOLDINGS, LLC ET AL., DEFENDANTS.



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

ORDER DENYING EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER [15]

I.INTRODUCTION

Plaintiff Yeota Christie moves ex parte for a temporary restraining order to stay a trustee's sale on her home scheduled for November 2, 2012. The Court finds this matter appropriate for decision without oral argument. See Fed. R. Civ. P. 78; Local Rule 7-15. Upon review, the Court finds that Christie fails to demonstrate the likelihood of success on the merits required for a temporary restraining order. Accordingly, Christie's request for a temporary restraining order is DENIED.

II.BACKGROUND

On September 19, 2007, Christie obtained an adjustable-rate home refinance loan from Wells Fargo Bank in the amount of $787,500.00. (Compl. Ex. C.) This loan was secured by a deed of trust naming Wells Fargo as the lender and beneficiary and Fidelity National Title Insurance Company as the trustee under the deed of trust. (Compl. Ex. D.)

Christie alleges that on November 13, 2009, she received an unsigned letter from an unidentified person or entity informing her that her loan had been assigned, sold, or transferred to Morgan Stanley Mortgage Capital Holdings, LLC, effective October 14, 2009. (Compl. ¶ 4.)

On July 22, 2010, after falling behind on her mortgage payments, Christie entered into a Loan Modification Agreement with Saxon Mortgage Services Inc., which Christie insists asserted that it was the lender on her loan. (Compl. ¶ 5 & Ex. C.) Christie contends that during the period from July 2010 to February 2012, she paid Saxon $54,481.11 in mortgage payments under the modified terms of her loan. (See Compl. ¶ 6.) Christie does not state in her Complaint or her TRO application what her monthly payments were during this period or that she consistently made those payments in full and on time, nor does she contend that the aggregate $54,481.11 in payments that she made during this period were improperly applied to her loan.

On July 5, 2012, a Notice of Default and Election to Sell was recorded, indicating that Christie was in default on her mortgage in the amount of $51,319.25. (Compl. Ex. H.)

On August 17, 2012, the Law Offices of Les Zieve recorded an Assignment of Deed of Trust purporting to transfer Christie's deed of trust from Wells Fargo Bank to FV-1, Inc. in trust for Morgan Stanley. (Compl. Ex. I.)

Christie alleges that by this time, she was "at a loss . . . of whom is [sic] the actual lender/creditor, since Mortgage Stanley [sic], Saxon and FV-1 all claiming [sic] to be the lender." (Appl. 5.) Finding herself "having no other alternative," Christie filed this action in this Court on September 20, 2012. Subsequently, on October 11, 2012, Christie received a Notice of Trustee's sale alerting her that a foreclosure sale would proceed on November 2, 2012.

Christie's Complaint alleges eight claims, styled as follows: (1) declaratory relief under 28 U.S.C. §§ 2201--2202; (2) negligence; (3) negligent infliction of emotional distress; (4) "negligence -- unfair debt collection [15 U.S.C. §2605]";

(5) unfair business practices under California's unfair competition law, Cal. Bus. & Prof. Code § 17200; (6) accounting; (7) cancellation of written instrument under California Civil Code section 3412; and (8) quiet title. The crux of Christie's contentions is that it is unclear who owns the note to her home and thus who is entitled to enforce the note through foreclosure.

III.LEGAL 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, ...


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