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Massett v. Bank of America, N.A.

United States District Court, Ninth Circuit

September 10, 2013

PATRICK MASSETT, ET AL
v.
BANK OF AMERICA, N.A., ET AL

CIVIL MINUTES - GENERAL

CHRISTINA A. SNYDER, District Judge.

Proceedings: THIRD EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER (Docket #32, filed September 9, 2013)

I. INTRODUCTION

Plaintiffs Patrick Massett and Marybeth Masset filed this case in this Court on June 28, 2013 against defendant Bank of America, N.A. ("BANA"). On August 1, 2013, plaintiffs filed the operative First Amended Complaint ("FAC"), adding defendant Nationstar Mortgage Holdings, Inc. ("Nationstar"). Plaintiffs contend that defendants unlawfully engaged in "dual tracking, " a practice where a bank simultaneously processes a homeowner's application for a loan modification and takes steps towards foreclosing on the homeowner's residence. Plaintiffs allege that because they have been unlawfully subjected to dual tracking, defendants cannot lawfully foreclose on their home.

On September 9, 2013, plaintiffs filed their third ex parte application for a temporary restraining order ("TRO") seeking to prevent defendant Nationstar from holding a foreclosure sale that is allegedly scheduled for September 12, 2013. No opposition has been filed. After considering plaintiffs' arguments, the Court finds and concludes as follows.

II. BACKGROUND

On June 13, 2007, plaintiffs obtained a home mortgage loan from non-party Countrywide Financial. FAC ¶ 8. This loan is secured by a deed of trust against plaintiffs' residence, located at 29943 Harvester Road., Malibu, California 90265 ("the property"). Id . Ownership of plaintiffs' loan was transferred to BANA in 2008. Id.

In March 2012, plaintiffs fell behind on their mortgage payments, and on May 16, 2012, plaintiffs filed an application for a loan modification with BANA. Id . ¶ 8. On July 31, 2012, BANA denied their application for the "Department of Justice" loan modification program, but stated that plaintiffs might qualify for the "Classic Trial" program or the "National Homeownership Retention Program." Id . ¶ 10. Plaintiffs applied for loan modifications under both programs.

On July 1, 2013, however, BANA transfered the servicing of plaintiffs' loan to defendant Nationstar. Plaintiffs were informed that their ongoing loan modification applications would be processed by Nationstar. Id . ¶ 22. As of August 29, 2013, Nationstar was reviewing plaintiffs' applications for a loan modification; plaintiffs allege that they have not yet received a final determination. Ex. 2. Plaintiffs further claim that Nationstar has simultaneously filed a notice of sale against their property, and has scheduled a trustee's sale for September 12, 2013. Ex. 1.

III. LEGAL STANDARD

The standards for issuing a temporary restraining order and a preliminary injunction are "substantially identical." Stuhlbarg Int'l Sales Co. v. John D. Brushy & Co. , 240 F.3d 832, 839 & n.7 (9th Cir. 2001). A preliminary injunction is an "extraordinary remedy." Winter v. Natural Res. Def. Council, Inc. , 555 U.S. 7, 24 (2008). "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Am. Trucking Ass'n, Inc. v. City of Los Angeles , 559 F.3d 1046, 1052 (9th Cir. 2009); see also Cal Pharms. Ass'n v. Maxwell-Jolly , 563 F.3d 847, 849 (9th Cir. 2009). Alternatively, "serious questions going to the merits' and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met." Alliance for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1132 (9th Cir. 2011). A "serious question" is one on which the movant "has a fair chance of success on the merits." Sierra On-Line, Inc. v. Phoenix Software, Inc. , 739 F.2d 1415, 1421 (9th Cir. 1984). Under either formulation, demonstrating a likelihood of success on the merits and irreparable harm is "most critical." Nken v. Holder , 556 U.S. 418, 434 (2009).

IV. ANALYSIS

As the party seeking a temporary restraining order, plaintiffs bear the burden of showing (1) that they are likely to succeed on the merits, (2) that they are likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in their favor, and (4) that an injunction is in the public interest. Am. Trucking Ass'n, Inc. , 559 F.3d at 1052.

The Court begins first with likelihood of success on the merits. Here, plaintiffs allege that they are entitled to relief from foreclosure under California Civil Code § 2923.6. This statute requires mortgage servicers to refrain from taking steps to ...


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