United States District Court, E.D. California
RENEE L. MARTIN, Plaintiff,
v.
SELECT PORTFOLIO SERVICING, INC., and BARRETT DAFFIN FRAPPIER TURNER & ENGEL, LLP, as Trustee and Acting as a Debt Collector, Defendants.
ORDER DENYING PLAINTIFF’S APPLICATION FOR
TEMPORARY RESTRAINING ORDER
Troy
L. Nunley United States District Judge
This
matter is before the Court on Plaintiff Renee L.
Martin’s (“Plaintiff”) Amended Application
for Temporary Restraining Order. (ECF No. 6.) The Court
previously issued an Order (ECF No. 5) denying
Plaintiff’s first Application for Temporary Restraining
Order. In the Amended Application for Temporary Restraining
Order, Plaintiff cites additional case law to support her
motion. (ECF No. 6 at 3-4.) The Court has carefully
considered Plaintiff’s Amended Application. For the
reasons set forth below, Plaintiff’s application is
hereby DENIED.
I.
FACTUAL BACKGROUND[1]
The
Plaintiff is the owner of a property at 931 Oakbrook Drive,
Fairfield, California 94534 (hereinafter “the
Property”), acquired by a grant deed in 1988. (Compl.,
ECF No. 7 at ¶¶ 6, 13.) On or about December 9,
2004, Plaintiff refinanced the Property through WMC and
“the loan was to be securitized in a trust known as
Certificateholders of Morgan Stanley ABS Capital I Inc. Trust
2005-WMC3, Mortgage Pass-Through Certificate Series
2005-WMC3.” (ECF No. 7 at ¶¶ 3, 14.) At some
point “during the financial crisis” the Plaintiff
got behind in her mortgage payments. (ECF No. 7 at ¶ 3.)
On or about September 1, 2012, a representative from
Defendant Select Portfolio Servicing, Inc. (hereinafter
“SPS”) contacted Plaintiff and informed her that
SPS would be “taking over the loan.” (ECF No. 7
at ¶ 18.) Plaintiff advised the SPS representative that
she was seeking a modification. (ECF No. 7 at ¶ 18.)
Plaintiff alleges that she was advised by SPS to submit a
“complete financial loan package for the modification,
” and that she did as requested. (ECF No. 7 at ¶
18.)
On
October 19, 2012, a representative from SPS named Megan
Koontz contacted Plaintiff to inform her that “a new
(Department of Justice)” loan modification was
available and recommended that Plaintiff apply for this
program. (ECF No. 7 at ¶ 22.) Plaintiff was also
informed that three trial payments would be required and that
if she successfully made all three trial payments the loan
would be permanently modified. (ECF No. 7 at ¶ 23.) On
or about November 19, 2012, Plaintiff received a call from
SPS notifying her that her loan modification request had been
approved and her first of three trial payments in the amount
of $1, 093.56 was due on December 1, 2012. Plaintiff received
a letter from SPS, dated November 15, 2012, confirming the
three payments of $1, 093.56 under the modification and
stating that she could receive a principal reduction of $172,
828.37.[2] (ECF No. 7 at ¶ 24.) Plaintiff claims
to have made all three payments on time. (ECF No. 7 at ¶
23.)
On
January 8, 2013, after making the three required payments,
Plaintiff contacted SPS “to determine the exact amount
of the remaining principal on the loan.” (ECF No. 7 at
¶ 25.) Plaintiff was told to contact
“BAC[3] for that information.” (ECF No. 7 at
¶ 25.) Plaintiff did contact BAC and was informed that
as of August 12, 2012, the remaining principal balance of the
loan was $278, 155. (ECF No. 7 at ¶ 25.) Plaintiff was
also informed that “[the loan] was transfer[ed] to the
new servicer, SPS[, ] for $278, 155 and that was the entire
balance owed.” (ECF No. 7 at ¶ 25.) On February 8,
2013, Plaintiff contacted Megan Koontz at SPS and was advised
that “she [would] be receiving the permanent
modification any day now.” (ECF No. 7 at ¶ 27.)
On
March 4, 2013, Plaintiff again contacted SPS to inquire as to
the status of her modification. (ECF No. 7 at ¶ 29.)
Plaintiff spoke with SPS representative Jerison Sanchez who,
according to Plaintiff, “attempted to misle[a]d
Plaintiff and said that ‘since all of your three
payments have been made timely, don’t do anything else,
you don’t have to make any more payments, because we
SPS will adjust everything to permanent status any day
now.’” (ECF No. 7 at ¶ 29.) Plaintiff spoke
to another SPS representative later in March and yet still no
modification occurred. (ECF No. 7 at ¶ 30.) Plaintiff
then received a letter from SPS dated June 24, 2013, stating
that her home loan was not eligible for modification because
“After being offered Modification, you did not return
the permanent modification documents by the requested
deadline.” (ECF No. 7 at ¶ 31; Exhibit 2 at 35.)
Plaintiff
contacted SPS within the required 30 days to object to the
decision stating that she had never received a copy of any
paperwork to sign. (ECF No. 7 at ¶¶ 32, 33.) At
some point during this time, Plaintiff requested SPS provide
her with a “Qualified Written Report” (QWR)
because she was concerned about why her principal balance
“kept dramatically increasing instead of decreasing[]
when payments were made.” (ECF No. 7 at ¶ 35.)
When Plaintiff received a package of information regarding
the QWR from SPS, Plaintiff noticed among the papers a letter
from SPS dated July 25, 2013. (ECF No. 7 at ¶ 36;
Exhibit 3 at 32.) The July 25, 2013, letter informed
Plaintiff that she was “approved for a principal
reduction loan modification under the U.S. Department of
Justice and State Attorneys General national mortgage
settlement.” (ECF No. 7 at 32.) Plaintiff alleges that
she never received this document prior to her QWR request.
(ECF No. 7 at ¶ 36.) Plaintiff further alleges that
“In the Loan Modification Agreement, [a] paragraph on
the first page[] identifies SPS as (“Lender”)
instead of servicer.” (ECF No. 7 at ¶ 37.)
Plaintiff states that she “never entered into an
agreement with SPS as lender, therefore, the lender of said
loan, if any is WMC, not SPS.” (ECF No. 7 at ¶
37.) Plaintiff believes that “SPS [] negligently
misrepresented to Plaintiff that they are the lender and not
the servicer of the loan.” (ECF No. 7 at ¶ 37.)
Plaintiff alleges
there were gross deceptions in the modification, which
Plaintiff did not agree to[, ] for instance: (a) ‘I
acknowledge that I have been advised that I am eligible for
evaluation for a modification under the U.S. Treasury
Department’s Home Affordable Modification Program but I
have voluntarily elected to proceed with this
modification.’ This is false, as Plaintiff had met all
criteria for the U.S. Treasury and had performed all the
terms and conditions. (b) SPS, as servicer wrote themselves
into the agreement as the Lender. In the chain of title, SPS
is not or never had been in the chain as lender [(c)]
Additionally, SPS wanted to deceive[] Plaintiff with a
balloon payment after end in the amount of $24, 390.39.
Balloon payments are contrary to any government modification
plans.
(ECF No. 7 at ¶ 38.)
Plaintiff
alleges “SPS has been deceitful and moving forward to
quickly foreclose because none of the defendants [] have any
lawful right to the property, there is no debt owning on the
subject property, which has been paid off through credits
from government programs and by Plaintiff.” (ECF No. 7
at ¶ 39.) Plaintiff states that she continued to make
her monthly payments in the amount of $1, 093.56 since
December 1, 2012 to present, “even though SPS never
fulfilled their agreement.” (ECF No. 7 at ¶¶
28, 29.) Plaintiff claims her monthly loan payments for the
months of May through October 2015 have all been returned by
SPS and that SPS has sent regular correspondence requesting
higher mortgage payments. (ECF No. 7 at ¶¶ 44, 46.)
Plaintiff’s motion. (ECF No. 2 at 3.) Plaintiff
contends that neither SPS nor Barrett Daffin Frappier Treder
& Weiss, LLP[4] (“Barrett”) are the lawful
parties to conduct a trustee sale because the “chain of
title is broken and there is no lender, the property is not
in default and there is no debt owning on the subject
property.” (ECF No. 7 at ¶ 47.)
On
August 8, 2016, Plaintiff filed an Amended Complaint in this
Court alleging nine causes of action: (1) Violation of the
Servicing of Mortgage Loans Procedures Act (12 U.S.C. §
2605); (2) violations of the U.S. Department of Justice
and/or U.S. Department of Treasury (Modifications); (3)
Wrongful Foreclosure (Commenced); (4) Violations of
California Homeowners Bill of Rights; (5) Quiet Title to Real
Property; (6) Intentional Infliction of Emotional Distress;
(7) Fair Debt Collection Practices Act; (8) Violations of
(Pooling Service Agreement); and (9) Negligent
Misrepresentation. (ECF No. 7.)
II.
Legal Standard
A
temporary restraining order is an extraordinary and temporary
“fix” that the court may issue without notice to
the adverse party if, in an affidavit or verified complaint,
the movant “clearly show[s] 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 a temporary
restraining order is to preserve the status quo pending a
fuller hearing. See Fed. R. Civ. P. 65. It is the
practice of this district to construe a motion for temporary
restraining order as a motion for preliminary injunction.
Local Rule 231(a); see also Aiello v. One West Bank,
No. 2:10-cv-0227-GEB-EFB, 2010 WL 406092 at ...