United States District Court, C.D. California
ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION
D. WRIGHT, II UNITED STATES DISTRICT JUDGE.
Jonathan Startz moves for a preliminary injunction to enjoin
Defendants from foreclosing on real property that Plaintiff
owns. (ECF No. 26.) After reviewing the papers filed in
support of and in opposition to the Motion, the Court deems
the Motion appropriate for decision without oral argument,
Fed.R.Civ.P. 78(b); C.D. Cal. L.R. 7-15, and thus
VACATES the hearing date on this Motion.
Moreover, for the reasons discussed below, the Court
DENIES the Motion.
2007, Plaintiff and his wife Marie Startz obtained a mortgage
from Washington Mutual Bank (later sold to Chase) to purchase
property in Westlake Village, California. (Compl. ¶ 9;
Bouvee Decl., Ex. A at 17.) In or around July 2015, after
falling behind on his mortgage payments, Plaintiff called
Chase and requested a payment plan to help him bring his
payments current. Chase instructed Plaintiff to submit a
written Request for Mortgage Assistance. (Compl. ¶¶
10-11.) Plaintiff subsequently submitted such a Request
(“RMA #1”), along with various supporting
documentation, to Chase. (Id.) On January 25, 2016,
Chase sent Plaintiff a letter informing him that it had
finished its review of RMA #1 and identified options for
which Plaintiff was and was not eligible. (Id.
¶ 17, Ex. 3; Bouvee Decl., Ex. A.) The letter indicated
that Plaintiff was eligible for short sale assistance or a
deed-in-lieu of foreclosure, but that he was not eligible for
any loan modification or mortgage forgiveness programs.
(Bouvee Decl., Ex. A at 9-10.)
thereafter, Plaintiff contacted Chase and again requested a
payment plan for the amount that he was in arrears. (Compl.
¶ 18.) Chase “responded that they would look into
the matter and get back to him.” (Id.) On
March 1, 2016, Chase sent a letter to Plaintiff stating that
Plaintiff must submit a further written Request for Mortgage
Assistance along with a list of specific documents on or
before March 31, 2016. (Compl. ¶ 19, Ex. 4.) Four days
later, Plaintiff submitted the further Request (“RMA
#2”) along with “all requested information”
to Chase. (Id. ¶ 20.) On May 24, 2016, Chase sent
a letter to an attorney retained by Plaintiff indicating that
it still required a proof of occupancy for the
“additional customer, ” and that Plaintiff must
submit this documentation on or before June 16, 2016.
(Id. ¶ 26, Ex. 7.) On June 23, 2016,
Plaintiff's attorney sent Chase a letter stating that the
“additional customer”-to the extent that Chase
was referring to Marie Startz-no longer lives at the
property, for she and Plaintiff were in the divorce process
and the property would be awarded to Plaintiff as his
separate property. (Id. ¶ 28, Ex. 9.)
18, 2016, Defendant Quality Loan Service (“QLS”)
recorded a notice of default against the property.
(Id. ¶ 29, Ex. 10.) Plaintiff's attorney
subsequently informed Chase on two occasions that the notice
was unlawfully recorded because Plaintiff's loan
modification application was still outstanding. (Id.
¶¶ 30-31, Ex. 11- 12.) On September 16, 2016, Chase
sent Plaintiff's attorney a letter indicating it was
“currently” reviewing the loan “for any
available payment assistance options, ” and that it
suspended foreclosure activity on the home pending this
review. The letter indicated that Chase “still
require[d] further documentation to prove that our customers
currently occupy the subject property, and an appraisal needs
to be completed.” (Bouvee Decl., Ex. B.) The letter
further declined to rescind the March 10, 2016 notice of
default because Plaintiff's loan payments were
not current. (Id.)
November 14, 2016, QLS recorded a notice of trustee's
sale, scheduling the sale date for December 9, 2016.
(Id. ¶ 32, Ex. 13.) Four days later, Chase sent
a letter to Plaintiff's attorney indicating that it had
finished reviewing RMA #2, and that it had again determined
that Plaintiff was eligible for only short sale assistance or
a deed-in-lieu of foreclosure, and not for any loan
modification program. (Bouvee Decl., Ex. D at 33-39.) On
December 2, 2016, Plaintiff filed this action in the Ventura
Superior Court and immediately sought a temporary restraining
order to enjoin the foreclosure sale. (Not. of Removal, Exs.
E-H.) It is unclear whether or not the state court granted
the application, but nonetheless it appears that the sale
never went forward.
December 5, 2016, Chase sent a letter to Plaintiff's
attorney denying that the loan was dual-tracked, stating that
“[a]s of November 9, 2016, our request for proof of
occupancy was still outstanding, ” and thus Chase did
not have a complete modification package. (Bouvee Decl., Ex.
C.) Further, the letter stated that Chase “d[id] not
have records showing we denied our client's payment
assistance review on July 18, 2016, ” and that at the
time they were “still reviewing our client for payment
assistance programs.” (Id.)
December 29, 2016, Chase removed this action to federal
court. (ECF No. 1.) On March 24, 2017, QLS recorded a further
notice of trustee's sale, which set a sale date of April
25, 2017. (Klein Decl., Ex. A.) On April 20, 2017, Plaintiff
filed an ex parte application for a temporary restraining
order seeking to enjoin the April 25 foreclosure sale. (ECF
No. 26.) Chase responded that it would postpone the
foreclosure sale until May 25, 2017, so that Plaintiff's
application could be fully briefed as a motion for
preliminary injunction. (ECF No. 28.) The Court thus set a
briefing schedule on the Motion. (ECF No. 29.) Chase filed a
timely opposition to the Motion, but Plaintiff did not file a
timely reply. (ECF No. 38.) Plaintiff's Motion is now
before the Court for decision.
may enter a preliminary injunction where the moving party
shows: (1) a likelihood of success on the merits; (2) a
likelihood that the moving party will suffer irreparable harm
absent preliminary injunctive relief; (3) that the balance of
equities tips in the moving party's favor; and (4) that
preliminary injunctive relief is in the public interest (the
“Winter factors”). Winter v.
Nat'l Res. Def. Council, Inc., 555 U.S. 7, 20
(2008). “Under Winter, plaintiffs must
establish that irreparable harm is likely, not just
possible, in order to obtain a preliminary injunction.”
Alliance for the Wild Rockies v. Cottrell, 632 F.3d
1127, 1132 (9th Cir. 2011) (original emphasis). In the Ninth
Circuit, “‘serious questions going to the
merits' and a hardship balance that tips sharply toward
the plaintiff can [also] support issuance of an injunction,
assuming the other two elements of the Winter test
are also met.” Id. at 1132, 1135 (holding that
the “sliding scale” test remains viable “so
long as the plaintiff also shows that there is a likelihood
of irreparable injury and that the injunction is in the
asserts the following claims in his Complaint: (1)
dual-tracking of the loan in violation of the California
Homeowners Bill of Rights Act (“HBOR”), Cal. Civ.
Code § 2923.6(c), and 12 C.F.R. § 1024.41; (2)
failure to post the notice of trustee's sale on the
property in ...