Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Susu v. Bayview Loan Servicing, LLC

United States District Court, N.D. California

February 22, 2018

BAYVIEW LOAN SERVICING, LLC, et al., Defendants.




         Plaintiffs 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.


         In 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).

         In 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).

         In 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).

         In 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.

         Plaintiffs 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.

         Plaintiffs 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, 11, 14).

         On 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 motion.[1]


         A 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).

         1. Plaintiffs Have Not Raised “Serious Questions” ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.