United States District Court, S.D. California
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)
ROGER T. BENITEZ, UNITED STATES DISTRICT JUDGE
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.
29, 2017, Plaintiff filed an ex parte motion for lis pendens.
This motion is DENIED.
Plaintiffs Loan and the Foreclosure Proceedings
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). 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.
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.
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). 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).
PARTE REQUEST FOR A TEMPORARY RESTRAINING ORDER
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.
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.