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Ezaz v. Bayview Loan Servicing, LLC

United States District Court, N.D. California, San Jose Division

February 28, 2017

SOHRAB EZAZ, Plaintiff,
v.
BAYVIEW LOAN SERVICING, LLC, Defendant.

          ORDER GRANTING EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER RE: DKT. NO. 7

          EDWARD J. DAVILA, United States District Judge

         Sohrab Ezaz (“Plaintiff”) filed this action against Defendant Bayview Loan Servicing, LLC (“Bayview”) on February 17, 2017, alleging several causes of action, including violations of California Civil Code § 2923.6 and the California Homeowner Bill of Rights (“HBOR”). See Compl., Dkt. No. 1. Presently before the court is Plaintiff's ex parte Application for a Temporary Restraining Order enjoining Bayview from proceeding with the trustee's sale of Plaintiff's Property, which is presently scheduled for March 1, 2017 at 10:00 a.m. See Dkt. No. 7.

         Based on Plaintiff's Application and supporting materials, and for the reasons explained briefly below, the Court GRANTS Plaintiff's request for TRO. The court has jurisdiction over this action pursuant to 28 U.S.C. § 1332(a)(1).

         I. BACKGROUND

         At all relevant times mentioned herein, Plaintiff has been the owner of the real property located at 6747 Hampton Drive, San Jose, CA 95120 (the “Property”). The Property is a single family home and is Plaintiff's primary residence. Compl. ¶ 6, 7.

         Plaintiff asserts that on April 21, 2005, he purchased the Property for $1, 100, 000.00. Compl. ¶¶ 6, 8; TRO App. ¶ 7. Plaintiff made a down payment of 25% of the purchase price, and obtained a loan of $825, 000.00 from Countrywide Home Loans, Inc. (“the Loan”) for the remainder. Compl. ¶ 8 and Ex. 1 (Dkt. No. 1-1). The Loan had an adjustable rate, and when the market collapsed approximately four years later, Plaintiff states that he could not refinance or afford the increase in payments. Decl. of Sohrab Ezaz (“Ezaz Decl.”) ¶ 5, Dkt. No. 7-4. Accordingly, Plaintiff fell behind on his mortgage payments. Id.; Compl. ¶ 8.

         Plaintiff further asserts that on or about January 15, 2017, he submitted “a complete loan modification application to Bayview's loss mitigation department.” TRO App. ¶ 8. Plaintiff represents that Bayview accepted his application and assigned him a Single Point of Contact (“SPOC”) in connection therewith. Id. However, just over two weeks later on January 31, 2017 -and while Plaintiff's application was purportedly still “under review” - Bayview filed a Notice of Trustee's Sale (“NTS”) in the Santa Clara County Recorder's Office. Compl. ¶ 10 and Ex. 2 (Dkt. 1-2); TRO App. ¶ 9. The sale is currently scheduled for 10:00 a.m. on March 1, 2017, which is less than 24 hours from the date and time this order issued. See id.

         II.LEGAL STANDARD

         The standard for issuing a TRO is the same as that for the issuance of preliminary injunction. See New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1347 n.2 (1977). Thus, a TRO, like a preliminary injunction, is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. NRDC, Inc., 555 U.S. 7, 22 (2008).

         “To obtain a preliminary injunction, the moving party ‘must establish that: (1) it is likely to succeed on the merits; (2) it is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in its favor; and (4) an injunction is in the public interest.'” Idaho v. Coeur D'Alene Tribe, 794 F.3d 1039, 1046 (9th Cir. 2015) (quoting Pom Wonderful LLC v. Hubbard, 775 F.3d 1118, 1124 (9th Cir. 2014)).

         Alternatively, “‘serious questions going to the merits' and a hardship balance that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). This articulation represents “one alternative on a continuum” under the “‘sliding scale' approach to preliminary injunctions employed” by the Ninth Circuit. Id. at 1131-32.

         Whether to grant or deny a preliminary injunction is a matter within the court's discretion. See Miss Universe, Inc. v. Flesher, 605 F.2d 1130, 1132-33 (9th Cir. 1979).

         III. DISCUSSION

         An ex parte TRO Application must first satisfy Federal Rule of Civil Procedure 65(b)(1), which demands that the opposing party or parties have been given notice. Plaintiff's TRO Application avers that his counsel provided notice to Bayview and its legal agents on February 26, 2017 by certified mail and by fax, as well as to Bayview's assigned foreclosure Trustee. See Decl. of Arasto Farsad (“Farsad ...


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