United States District Court, S.D. California
ORDER DENYING MOTION FOR PRELIMINARY
ROGER T. BENITEZ UNITED STATES DISTRICT JUDGE.
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.
Plaintiff has not demonstrated a likelihood of success on the
merits, the Court DENIES Plaintiff's
motion for a preliminary injunction.
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
The Foreclosure Proceedings
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.
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.
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.
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.
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).
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). 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.
Court heard arguments on Plaintiff's request for a
preliminary injunction on July 13, 2017.
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).
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