United States District Court, N.D. California, San Jose Division
ORDER GRANTING EX PARTE APPLICATION FOR TEMPORARY
RESTRAINING ORDER RE: DKT. NO. 7
J. DAVILA, United States District Judge
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.
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).
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.
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.
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
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
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)).
“‘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.
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).
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 ...