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Wasito v. Specialized Loan Servicing, LLC

United States District Court, S.D. California

July 5, 2017

JANAR WASITO, Plaintiff,
v.
SPECIALIZED LOAN SERVICING, LLC; GSAA 5-11; GOLDMAN SACHS MORTGAGE COMPANY; JPM CHASE BANK, Defendants.

          ORDER: (1) GRANTING IN PART AND DENYING IN PART PLAINTIFF'S EX PARTE MOTIONS FOR A TEMPORARY RESTRAINING ORDER (ECF NOS. 8, 10, 12); (2) DENYING EX PARTE MOTIONS FOR LIS PENDENS (ECF NOS. 16, 18)

          HON ROGER T. BENITEZ, UNITED STATES DISTRICT JUDGE

         On June 28, 2017, Plaintiff Janar Wasito, proceeding pro se, filed an ex parte motion for a temporary restraining order to postpone the foreclosure sale on his residence. Defendants Specialized Loan Servicing, LLC ("SLS") and U.S. Bank National Association ("U.S. Bank") (erroneously sued as GSAA 5-11) oppose the motion. Defendants Goldman Sachs Mortgage Company ("Goldman Sachs") and JPM Chase Bank ("Chase") have not responded. For the reasons discussed below, Plaintiffs request for a temporary restraining order is GRANTED IN PART and DENIED IN PART.

         On June 29, 2017, Plaintiff filed an ex parte motion for lis pendens. This motion is DENIED.

         BACKGROUND

         I. Plaintiffs Loan and the Foreclosure Proceedings

         In 2005, Plaintiff obtained a mortgage loan reflected in a promissory note. (Am. Compl. ¶ 28). The note was secured by a deed of trust encumbering the real property at 1703 La Playa Avenue #C, San Diego, CA 92109. (Id.; Request for Judicial Notice ("RJN") Ex. I).[1] The beneficial interest in the deed of trust was later assigned to U.S. Bank. (RJN Ex. 2). On August 11, 2016, a Notice of Default and Election to Sell was recorded against the property. (RJN Ex. 3). And on May 24, 2017, a Notice of Trustee's Sale was recorded against the property. (RJN Ex. 4). The sale date has been postponed several times. Defendants represent that the current sale date is July 7, 2017.

         II. The Lawsuit

         Plaintiff filed an amended complaint against SLS, GSAA 5-11, Goldman Sachs, and Chase in San Diego County Superior Court on June 7, 2017. U.S. Bank, as Trustee, is the Successor in Interest to Wachovia Bank, National Association, as Trustee for GSAA Home Equity Trust 2005-11. The complaint contends that Plaintiff recently discovered a notice of foreclosure for his primary residence at 1703 La Playa Avenue #C, San Diego, CA 92109. He complains that he had no prior notice of a pending foreclosure sale and that Defendants have not responded to his requests for information. He also states that Defendants have not properly reviewed his requests for a loan modification or evaluated all loss mitigation options available to Plaintiff. Plaintiff brings claims for: (1) violations of Regulation X, 12 C.F.R. § 1024.1, et seq., under the Real Estate Settlement Procedures Act ("RESPA"); (2) violations of Regulation Z, 12 C.F.R. § 1026.1, et seq., under the Truth in Lending Act ("TILA"); (3) negligence; (4) violations of California Business and Professions Code § 17200; (4) quiet title; (5) cancellation of instruments; (6) violations of the Americans with Disabilities Act ("ADA"); and (7) declaratory relief.

         Defendants SLS and U.S. Bank removed this action to federal court on June 22, 2017 based on federal question jurisdiction. Goldman Sachs and Chase did not join in the notice of removal because, according to SLS and U.S. Bank, they have not been properly joined or served. See 28 U.S.C. § 1446(b)(2) (explaining that only defendants properly joined or served must join in the removal). On June 28, 2017, Plaintiff filed an ex parte motion for a temporary restraining order to postpone the foreclosure sale on his home. (See ECF Nos. 8, 10, 12).[2] Defendants SLS and U.S. Bank filed an opposition the next day. Plaintiff also filed an "ex parte motion for lis pendens." (ECF Nos. 16, 18).[3]

         EX PARTE REQUEST FOR A TEMPORARY RESTRAINING ORDER

         I. Legal Standard

         A temporary restraining order ("TRO") is extraordinary relief, the underlying purpose of which is to preserve the status quo before a preliminary injunction hearing may be held. Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers Local No. 70 of Alameda Cnty., 415 U.S. 423, 439 (1974). For a TRO to issue, the movant must show either (1) a combination of likelihood of success on the merits and the possibility of irreparable harm, or (2) that serious questions going to the merits are raised and the balance of hardships tips sharply in favor of the moving party. Jones v. H.S.B.C. (USA), 844 F.Supp.2d 1099, 1099 (S.D. Cal. 2012) (citingImmigrant Assistance Project of Los Angeles Cnty. Fed'n of Labor v. INS, 306 F.3d 842, 873 (9th Cir. 2002). "[T]hese two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases." Dep 't of Parks & Recreation of Cal. v. Bazaar del Mundo Inc., 448 F.3d 1118, 1123 (9th Cir. 2006). If the movant shows no chance of success, injunctive relief should not issue. Id. at 1124.

         Where the movant has not provided written or oral notice to the adverse party or its attorney, he or she must present specific facts in an affidavit or verified complaint clearly showing that immediate and irreparable injury will result before the adverse party can be heard in opposition. Fed.R.Civ.P. 65(b). Further, the movant's attorney must certify in writing any efforts made to give notice and the reasons why it should not be required. Id. Only if the movant satisfies these two conditions may the Court issue a TRO without notice. Id.

         II. ...


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