United States District Court, N.D. California
ORDER DENYING TEMPORARY RESTRAINING ORDER
WILLIAM ALSUP, UNITED STATES DISTRICT JUDGE
filed an emergency application for a restraining order to
halt an impending foreclosure sale on their property. For the
reasons stated herein, plaintiffs' application is Denied.
2005, pro se plaintiffs Violette Susu and Jerries
Sousou took out a $1, 612, 500 home loan from America's
Wholesale Lender, evidenced by a promissory note and secured
by a deed of trust on real property located in Dublin,
California. The recorded deed identified MERS as the
beneficiary and nominee, and provided that MERS could assign
the deed to another party as beneficiary (Compl., Exh. 1).
2008, MERS recorded a substitution of trustee naming
Recontrust Company, N.A. as trustee of the deed. Defendant
Bayview Loan Servicing, LLC serviced the mortgage loan, which
plaintiffs stopped paying in July 2010 (Compl., Exh. 3-D;
Dkt. No. 11-1, Exh. A).
2011, MERS assigned the note and all beneficial interest
under the deed to defendant The Bank of New York Mellon as
trustee for the Certificateholders of CWALT, Inc.,
Alternative Loan Trust 2005-82. In 2017, BNY Mellon executed
a substitution of trustee naming Zieve, Brodnax & Steele,
LLP as trustee under the deed. Zieve later recorded a notice
of default and notice of trustee's sale, which sale was
subsequently continued to January 18, 2018 (Compl., Exhs.
3-C, 3-E; Dkt. No. 11-2, Exhs. B-C; Dkt. No. 6 ¶ 10).
October 2017, plaintiffs filed a pro se complaint
against five defendants (including the defendants to this
action), which complaint asserted eighteen claims for relief.
Defendants moved to dismiss that complaint under FRCP
12(b)(6). After plaintiffs failed to meet the deadline to
respond to the motions to dismiss, plaintiffs received two
extensions of time to file a response. Rather than respond,
on December 8 plaintiffs moved to voluntarily dismiss their
case, stating that due to their full-time employment they
lacked sufficient time to maintain the action.
commenced the current action on January 8, again naming
Bayview and BNY Mellon as defendants. Plaintiffs' claims
include: (1) wrongful foreclosure; (2) violations of the Fair
Debt Consumer Protection Act; (3) violations of the
Truth-in-Lending Act; (4) slander of title; (5) intentional
infliction of emotional distress; and (6) declaratory relief.
filed the instant application for a temporary restraining
order on January 16. They argued that there is a likelihood
of success on the merits of their claims and that they will
suffer irreparable injury if their residence is foreclosed
upon. Defendants filed an opposition to the application on
January 17, and a hearing on the TRO was held the following
day. An order set a supplemental briefing schedule and a
further hearing on plaintiffs' application for February
1, until which time defendants agreed to postpone the
foreclosure sale of plaintiffs' property (Dkt. Nos. 6, 9,
January 31 - the eve of the scheduled hearing on
plaintiffs' TRO - plaintiffs gave notice that they had
initiated proceedings in bankruptcy court. Although the
hearing on plaintiffs' TRO was held the following
morning, plaintiffs failed to attend. An order thereafter
stayed this action pending resolution of the parallel
bankruptcy court proceedings. On February 20, defendants
filed a notice explaining that the bankruptcy action was
dismissed for plaintiffs' failure to comply with an order
of the bankruptcy court. The temporary stay was accordingly
lifted (Dkt. Nos. 16-19). The Court has determined that a
further hearing would not be of assistance in resolving this
plaintiff seeking a preliminary injunction must show that she
is likely to succeed on the merits, that she is likely to
suffer irreparable harm in the absence of preliminary relief,
that the balance of equities tips in her favor, and that an
injunction is in the public interest. Winter v. Nat'l
Res. Def. Council, 555 U.S. 7, 20 (2008). In balancing
these factors, “‘serious questions going to the
merits' and a balance of hardships that tips sharply
towards the plaintiff can support issuance of an injunction,
so long as the plaintiff also shows a likelihood of
irreparable injury and that the injunction is in the public
interest.” Alliance for Wild Rockies v.
Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2010).
Plaintiffs Have Not Raised “Serious Questions”