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John Charles Heflebower v. Jp Morgan Chase Bank

November 2, 2012

JOHN CHARLES HEFLEBOWER,
PLAINTIFF,
v.
JP MORGAN CHASE BANK, NA;
CHASE HOME FINANCE LLC;
WASHINGTON MUTUAL BANK FA;
TITLE TRUST DEED SERVICE COMPANY; AND
DOES 1-20 INCLUSIVE,
DEFENDANTS.



ORDER ON PLAINTIFF'S APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION (Doc. No. 4)

This case stems from a deed of trust obtained by Plaintiff John Charles Heflebower ("Plaintiff") from Defendant Washington Mutual Bank, FA ("WAMU"). The deed of trust is secured by real property located in Fresno, California ("Subject Property"). Plaintiff alleges causes of action for 1) declaratory relief; 2) injunctive relief; 3) accounting; 4) quiet title; 5) breach of implied covenant of good faith and fair dealing; 6) breach of fiduciary duty; 7) unjust enrichment; 8) wrongful foreclosure and to avoid or cancel the deed of trust; 9) negligence and negligence per se; 10) unconscionability; and 11) violation of the Real Estate Settlement and Procedures Act ("RESPA"), 12 U.S.C. § 2601 et seq. Currently pending before the Court is Plaintiff's ex parte application for a temporary restraining order. For the reasons that follow, the Court will deny Plaintiff's application without prejudice.

ALLEGATIONS & BACKGROUND

From the verified complaint, Plaintiff contends that on or about January 13, 2006, he obtained a loan in the amount of $407,000.00 from WAMU, secured by the Subject Property. The loan was evidenced with a promissory note. On the same date, Plaintiff also executed a deed of trust in favor of WAMU, which identified Plaintiff as the borrower, WAMU as the lender, and California Reconveyance as the trustee. The deed of trust was recorded in the office of the Fresno County Recorder.

On September 25, 2008, the United States Office of Thrift Supervision seized WAMU and placed it into the receivership of the Federal Deposit Insurance Corporation, which then sold many of WAMU's assets, allegedly including Plaintiff's loan, to Defendant JP Morgan Chase Bank, NA ("Chase").

On or about October 18, 2011, Plaintiff made multiple requests to Defendant Chase Home Finance, LLC ("Chase HF"), the purported servicer of Plaintiff's loan, for proof of their claim to an ownership interest in the Subject Property. Chase HF neither responded to nor acknowledged those requests.

On November 9, 2011, Chase executed a declaration of compliance stating under penalty of perjury that it had: tried with due diligence to contact the borrower to discuss the borrower's financial situation and to explore options for the borrower to avoid foreclosure as required by Cal. Civ. Code Section 2923.5. Thirty days or more have elapsed since these due diligence efforts were completed.

See Compl., Ex. I. Despite this claim, Plaintiff states that Chase failed to use due diligence to contact him as required by California Civil Code § 2923.5.

On or about January 10, 2012, Chase had Defendant Title Trust Deed Service Company ("Title Trust Deed") execute a Notice of Default and Election to Sell Under Deed of Trust. Four months later, on or about May 11, 2012, Chase executed a Substitution of Trustee purporting to appoint Title Trust Deed as trustee under the deed of trust in place of California Reconveyance. Title Trust Deed failed to record the notice of default as required by California Civil Code §§ 2923.5(a)(1), (2), for publishing and posting. Title Trust Deed failed to notify Plaintiff in person or by telephone in order to assess Plaintiff's financial position and explore options that would avoid foreclosure. Title Trust Deed failed to advise Plaintiff that he had a right to request a subsequent meeting, and did not provide Plaintiff with the telephone number to the United States Department of Housing and Urban Development ("HUD") to identify a HUD-certified housing counseling agency as required by California Civil Code § 2923.5.

On or about June 13, 2012, Title Trust Deed executed and issued a Notice of Trustee's Sale. The Assessor's Parcel Number ("APN") in the grant deed is different than the APN listed in the Notice of Trustee's Sale.*fn1 See Compl. Exs. M, N. The Notice of Trustee's Sale states that the Subject Property was to be auctioned on July 9, 2012. See id., Ex. N. It appears the public auction was postponed and is now set for November 13, 2012.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 65(b), a court may issue an ex parte temporary restraining order only if: (1) it clearly appears . . . that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required. Fed. R. Civ. Pro. 65(b); Reno Air Racing Ass'n v. McCord, 452 F.3d 1126, 1130 (9th Cir. 2006). Rule 65(b)'s requirements are "stringent," and temporary restraining orders that are granted ex parte are to be "restricted to serving their underlying purpose of preserving the status quo and preventing 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, 438-39 (1974); McCord, 452 F.3d at 1131.

The substantive standard for granting a temporary restraining order is the same as the standard for entering a preliminary injunction. Bronco Wine Co. v. U.S. Dep't of Treasury, 997 F.Supp. 1309, 1313 (E.D. Cal. 1996); Lockheed Missile & Space Co. v. Hughes Aircraft Co., 887 F.Supp. 1320, 1323 (N.D. Cal. 1995); see also Welker v. Cicerone, 174 F.Supp.2d 1055, 1062 (C.D. Cal. 2001). A plaintiff seeking a preliminary injunction must establish: (1) that he is likely to succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 129 S.Ct. 365, 374 (2008); Park Vill. Apt. Tenants Ass'n v. Mortimer Howard Trust, 636 F.3d 1150, 1160 (9th Cir. 2011). "Injunctive relief . . . must be tailored to remedy the specific harm alleged." Park Vill., 636 F.3d at 1160.

DISCUSSION

A temporary restraining order is not warranted. Rule 65(b) provides that a temporary restraining order may issue on an ex parte basis "only if . . . the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required." Fed. R. Civ. P. 65(b)(1)(B). Plaintiff, who is acting pro se, has neither documented any efforts to give notice to Defendants in this case, nor has he provided any reasons why notice should not be required. Plaintiff's application suggests Plaintiff first received the Notice of Trustee's Sale on or about June 13, 2012, setting the sale for July 9, 2012. It is not clear to the Court when or why the trustee's sale was postponed until November 13, 2012. Given these facts, Plaintiff has not demonstrated that ...


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