United States District Court, N.D. California
ORDER DENYING PLAINTIFF'S EX PARTE APPLICATION
FOR TEMPORARY RESTRAINING ORDER Docket No. 7
M. CHEN UNITED STATES DISTRICT JUDGE.
Lonnie Ratliff has filed a foreclosure-related action against
multiple defendants (including but not limited to JP Morgan
Chase Bank N.A.; EMC Mortgage LLC; and Homesales, Inc.
(hereinafter “Appearing Defendants”)), asserting
claims ranging from wrongful foreclosure to violation of the
federal Fair Debt Collection Practices Act. Currently pending
before the Court is Mr. Ratliff's motion for a temporary
restraining order (“TRO”). In the motion, Mr.
Ratliff asks that the Court enjoin Homesales “from
executing on the Writ of Possession [it obtained] with regard
to the Front Unit at 2304 9th Avenue, Oakland, California
94606” - i.e., to prevent his and his
family's eviction from the front unit of the real
property. Mot. at 2; see also Ratliff Decl., Ex. B
(notice to vacate and underlying writ of possession obtained
by Homesales). The Court held a hearing on Mr. Ratliff's
motion on April 24, 2017. Having considered the papers
submitted as well as the oral argument offered at the
hearing, the Court hereby DENIES Mr. Ratliff's request
preliminary matter, the Court notes that Mr. Ratliff appears
to have delayed in seeking emergency relief. As alleged in
his complaint, the state court issued a judgment in favor of
Homesales on March 14, 2017, and then a writ of possession
for the real property at issue on March 20, 2017.
See Compl. ¶¶ 53-53. Given these
circumstances, Mr. Ratliff was well informed of the
likelihood of eviction and yet did not seek any relief from
this Court until on or about April 24, 2017, on the eve of
the eviction. Mr. Ratliff s undue delay in seeking relief
warrants denial of a TRO. See, e.g., Burrows v. OneWest
Bank, No. C 12-00995 SBA, 2012 U.S. Dist. LEXIS 193340,
at *5-6 (N.D. Cal. Apr. 5, 2012) (“concluding] that
Plaintiffs' undue delay constitutes laches and provides a
basis for denying Plaintiffs' TRO Application”).
event, the delay aside, to obtain a TRO, Mr. Ratliff must
(1) a likelihood of success on the merits; (2) a likelihood
of irreparable harm to the moving party in the absence of
preliminary relief; (3) that the balance of equities tips in
the moving party's favor; and (4) that an injunction is
in the public interest. Under the Ninth Circuit's
“sliding scale” approach, the first and third
elements are to be balanced such that “serious
questions” going to the merits and a balance of
hardships that “tips sharply” in favor of the
movant are sufficient for relief so long as the other two
elements are also met.
Id. at *2-3. Here, Mr. Ratliff has failed to show
even serious questions going to the merits.
Mr. Ratliff is asserting that there was a wrongful
foreclosure but that foreclosure sale took place back in 2007
- i.e., approximately ten years ago. Given this
passage of time, Mr. Ratliff s action is arguably time
barred. Mr. Ratliff s contention that he only recently
discovered new facts showing that illegal conduct took place
is not compelling. The forensic audit report that he has
attached to his complaint (Exhibit G) indicates that it was
prepared based on a publicly available online database.
See, e.g., Cortez v. New Century Mortg. Corp., No. C
11-1019 CW, 2012 U.S. Dist. LEXIS 13469, at *13 (N.D. Cal.
Feb. 3, 2012) (noting that “'equitable tolling may
be applied if, despite all due diligence, a plaintiff is
unable to obtain vital information bearing on the existence
of his claim'”).
as Appearing Defendants argue, res judicata would also appear
to be an obstacle to Mr. Ratliff s claims (at least as
asserted against the Appearing Defendants). Mr. Ratliff filed
two prior lawsuits asserting, in essence, wrongful
foreclosure and lost at both the trial and appellate levels.
While Mr. Ratliff has presented in this case a new factual
theory in support of wrongful foreclosure (i.e., an
invalid securitization of his loan), it seems doubtful that
this could overcome a res judicata defense. Res judicata
covers not only claims that were actually asserted but also
claims that could have been asserted. See Vogel v. Cty.
of San Mateo, No. C 98-3352 SI, 1999 U.S. Dist. LEXIS
1409, at *13 (N.D. Cal. Feb. 9, 1999) (noting that, under
California law, “'the rule is that the prior
judgment is res judicata on matters which were raised or
could have been raised, on matters litigated or
litigable'”); Azam v. Bank of Am., N.A.,
No. SACV 12-1732-JLS (MLGx), 2015 U.S. Dist. LEXIS 186879, at
*6 (C.D. Cal. Sep. 10, 2015) (same). As indicated above, Mr.
Ratliff's new factual theory could have been presented in
the earlier lawsuits since the forensic auditor looked at
publicly available materials in opining that Mr.
Ratliff's loan was improperly securitized.
even if the Court were to entertain Mr. Ratliff's new
factual theory in support of wrongful foreclosure, he would
face yet another obstacle. As he conceded at the hearing, his
main argument is that Defendants lacked authority to
foreclose on the real property at issue because his loan was
transferred into a securitized trust after the trust
closing date. See Mot. at 8. But, under California
law, Mr. Ratliff's argument is dependent on the transfer
being deemed void (and not just voidable) under the law that
controls the trust or pooling/service agreement. See,
e.g., Brewer v. Wells Fargo Bank, N.A., No.
16-cv-02664-HSG, 2017 U.S. Dist. LEXIS 53329, at *8-9 (N.D.
Cal. Apr. 6, 2017) (explaining, inter alia, that,
under the California Supreme Court's Yvanova
decision, a borrower has standing to assert wrongful
foreclosure only where a defect in assignment renders the
assignment void, not just voidable). At least under New York
law, a late transfer merely renders the transfer voidable and
not void. See Id. (noting that “the Second
Circuit has held that such an improper transfer
[i.e., one past the closing date] renders an
assignment merely voidable”). Because Mr. Ratliff has
not provided argument or evidence in support of a void
transfer (as opposed to a voidable one), he has not shown
serious questions going to the merits.
Mr. Ratliff's motion for a TRO is denied.
the Court is thus denying the request for relief, it takes
note of Appearing Defendants' agreement to convey to the
sheriff or other law enforcement officer with authority to
evict that the eviction is with respect to the front unit
only, and not the rear unit.
order disposes ...