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Wasito v. Specialized Loan Servicing, LLC

United States District Court, S.D. California

July 17, 2017

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

          ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION

          HON. ROGER T. BENITEZ UNITED STATES DISTRICT JUDGE.

         Plaintiff Janar Wasito, proceeding pro se, filed an ex parte motion for a temporary restraining order (“TRO”) to postpone the foreclosure sale on his residence. This Court granted the ex parte motion, temporarily restraining Defendants Specialized Loan Servicing, LLC (“SLS”) and U.S. Bank, N.A. (“U.S. Bank”) (erroneously sued as GSAA 5-11) from foreclosing on Plaintiff's home. The basis for the TRO was two-fold: (1) Defendants had not put forth evidence to show that they followed the statutory procedures to nonjudicially foreclose; and (2) Plaintiff offered to tender the indebtedness. The Court held a preliminary injunction hearing on July 13, 2017.

         Because Plaintiff has not demonstrated a likelihood of success on the merits, the Court DENIES Plaintiff's motion for a preliminary injunction.

         BACKGROUND

         I. Plaintiff's Loan

         In May 2005, Plaintiff obtained a mortgage loan from Residential Mortgage Capital (“RMC”) for $650, 000, which was reflected in a promissory note secured by a deed of trust encumbering the real property at 1703 La Playa Avenue #C, San Diego, CA 92109. The property is Plaintiff's primary residence. The Deed of Trust identifies Mortgage Electronic Registration Systems, Inc. (“MERS”) as the beneficiary, solely as nominee for the lender RMC and its successors and assigns. In 2014, MERS assigned the beneficial interest in the Deed of Trust to Defendant U.S. Bank, N.A., as Trustee, Successor in Interest to Wachovia Bank, N.A., as Trustee for GSAA Home Equity Trust 2005-11. Non-party Wells Fargo Bank, N.A. (“Wells Fargo”) was the servicer of the loan and, in October 2016, Defendant SLS became the servicer.

         II. The Foreclosure Proceedings

         Plaintiff has not made a mortgage payment since May 2015. Wells Fargo and SLS have reviewed and denied Plaintiff's applications for a loan modification eight times specifically, on or about October 3, 2013, October 23, 2013, February 5, 2016, March 7, 2016, April 18, 2016, March 28, 2017, April 14, 2017, and June 5, 2017.

         On August 10, 2016, Wells Fargo, as servicing agent for U.S. Bank, N.A., as Trustee, Successor in Interest to Wachovia Bank, N.A., as Trustee for GSAA Home Equity Trust 2005-11 substituted NBS Default Services, LLC (“NBS”) as the Trustee. Subsequently, on August 11, 2016, NBS recorded the Notice of Default (“NOD”). NBS's representative declares that it mailed Plaintiff a copy of the recorded notice via certified mail the next day. On May 24, 2017, NBS recorded the Notice of Trustee's Sale (“NOS”). NBS's representative declares that it mailed Plaintiff a copy of the Notice of Sale on May 22, 2017, two days before the recordation date. The foreclosure sale has been postponed numerous times and is now set for July 28, 2017.

         III. The Lawsuit

         Plaintiff filed an amended complaint against SLS, GSAA 5-11, Goldman Sachs Mortgage Company (“Goldman Sachs”), and JPM Chase Bank (“Chase”) in San Diego County Superior Court on June 7, 2017. The complaint contends that on May 30, 2017, Plaintiff first received notice of the foreclosure by finding a letter entitled “Urgent Notice of Foreclosure.” The letter was actually an advertisement from a company called The Mortgage Fighter. He contends that at no time prior to May 30, 2017 did he receive “any email, phone call, or other notice that SLS was attempting a lien or a foreclosure sale.” (Am. Compl. ¶ 4). He thought he was still negotiating with SLS for a modification of his mortgage.

         He complains that Defendants have not responded to his requests for information and have not properly reviewed his requests for a loan modification or evaluated all loss mitigation options available to him. Although these allegations are not in his complaint, Plaintiff's main theory is that Wells Fargo improperly denied him a loan modification in 2013. Because he was allegedly improperly denied a loan modification in September 2013, he believes he overpaid his monthly mortgage payments until May 2015. At the hearing, he asserted that he discovered Wells Fargo's error in the last month while preparing this lawsuit.

         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).[1] The Court issued a TRO on July 6, 2017. The Court granted Plaintiff's motion as to Defendants SLS and U.S. Bank, but denied it as to Defendants Goldman Sachs and Chase as they had not received notice of the application.

         The Court heard arguments on Plaintiff's request for a preliminary injunction on July 13, 2017.

         LEGAL STANDARD

         “A preliminary injunction is an extraordinary and drastic remedy.” Pom Wonderful LLC v. Hubbard, 775 F.3d 1118, 1124 (9th Cir. 2014) (quoting Munaf v. Geren, 553 U.S. 674, 689 (2008)). A plaintiff seeking a preliminary injunction must establish that he is (1) likely to succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The Winter factors are considered in conjunction with the Ninth Circuit's “sliding scale” approach, which provides that “the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another.” Vanguard Outdoor, LLC v. City of Los Angeles, 648 F.3d 737, 739 (9th Cir. 2011).

         DISCUSSION

         Plaintiff can satisfy only one of the Winter factors-that he is likely to suffer irreparable harm. See Jones v. H.S.B.C. (USA), 844 F.Supp.2d 1099, 1101 (S.D. Cal. 2012) (losing one's home may constitute irreparable injury). However, such an injury is insufficient to secure an injunction absent a demonstration of likely success on the merits. Id.; Dep't of Parks & Recreation of Cal. v. Bazaar del Mundo Inc., 448 F.3d 1118, 1124 (9th Cir. 2006) (“[I]f the plaintiff shows no chance of success on the merits, . . . the injunction should not issue.”). As discussed below, Plaintiff cannot ...


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