Judge Christopher K. Lui, Case 21STCV17310 2023-01-12 Tentative Ruling

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein. As required by Rule 3.1308(a)(2), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue. Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776. If notice of intention to appear is not given and the parties do not appear, the Court will adopt the tentative ruling as the final ruling.

Until the class action allegations were dismissed, this was an apparent class action brought on behalf of class members who were victims of Defendants’ alleged scheme whereby Defendants would fraudulently dupe victims into unknowingly transferring title to real property under the guise of lowered mortgage payments negotiated on the victims’ behalf. Defendants would then collect “mortgage payments” from the victims for the real property which the victims had unknowingly given to Defendants. Defendants then encumbered the property with (non-existent) loans by other Defendants, who would not foreclose until after Defendants sold the properties without paying off the loans.

Defendants Sunrise, LLC and Fred Lin filed a Cross-Complaint for judicial foreclosure, breach of contract, indemnity and contribution.

Defendants Nelida Herrera and AMN Properties, LLC filed a Cross-Complaint for judicial foreclosure and breach of promissory note.

Plaintiffs Juan Francisco Alvarado, Juan Magana Alvarado and Martha Alvarado move for the issuance of a preliminary injunction prohibiting Defendants and Cross-Complainants Nelida Herrera and AMN Properties, LLC or their agents, servants, or employees and all persons acting to proceed with non-judicial foreclosure of the property located at 226 E. 11^th Street, Pomona, CA 91766 until this litigation has been decided or resolved.

Plaintiffs Juan Francisco Alvarado, Juan Magana Alvarado and Martha Alvarado’s motion for a preliminary injunction is DENIED.

1. Exhibit 1: 03-20-2006 Grant Deed recorded against 226 E. 11th St., Pomona, CA (“Property”) – Transferring Property to Juan Magana Alvarado and Martha Alvarado – recorded with the Los Angeles County Recorder’s office;

2. Exhibit 2:12-30-2009 Grant Deed recorded against Property – Transferring Property to Diesel Enterprises, Inc. – recorded with the Los Angeles County Recorder’s office;

3. Exhibit 3: 02-27-2012 Grant Deed recorded against Property – Transferring Property to H&S Holdings Company LLC – recorded with the Los Angeles County Recorder’s office;

4. Exhibit 4: 05-17-2021 and 07-31-2015 Deed of Trust and Modification of DOT filed by Sunrise against the Property – recorded with the Los Angeles County Recorder’s office;

5. Exhibit 5: 05-27-2017 Grant Deed recorded against Property – Transferring Property to AMN Properties, LLC – recorded with the Los Angeles County Recorder’s office;

6. Exhibit 6: Grant Deed transferring Property to JF (executed by NH 11-27-2018) – recorded with the Los Angeles County Recorder’s office;

7. Exhibit 7: 3-28-2019 All-Inclusive Purchase Money Deed Of Trust And Assignment Of Rents – recorded with the Los Angeles County Recorder’s office;

8. Exhibit 8: All-Inclusive Purchase Money Promissory Note Secured By Long Form All-Inclusive Purchase Money Deed Of Trust – recorded with the Los Angeles County Recorder’s office;

10. Exhibit 10: Secretary of State filing pertaining to The Herrera Sindell Group;

Requests Nos. 1 – 8 are GRANTED. The Court may take judicial notice of recorded documents. (Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 549, overruled on other grounds in Black Sky Capital, LLC v. Cobb (2019) 7 Cal.5th 156, 165; Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 263, 274). Requests Nos. 9-11 are GRANTED. The Court may take judicial notice of a business entity’s corporate status as reflected in the Secretary of State’s records. (Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1286; Pedus Bldg. Servs. v. Allen (2002) 96 Cal.App.4th 152, 156 n.2.)

1. Exhibit “1" Notice of Default and Election to Sell under Deed of Trust Recorded by Wilshire Credit Corp on May 5, 2009 in the official records of Recorder’s Office, Los Angeles County, instrument no. 20090656573;

2. Exhibit “2" Notice of Trustee’s Sale Recorded by Wilshire Credit Corp on August 6, 2009 in the official records of Recorder’s Office, Los Angeles County, instrument no. 20091202943;

3. Exhibit “3" Full Reconveyance Recorded by Wilshire Credit Corp dated January 14, 2010 and recorded on May 3, 2010 in the official records of Recorder’s Office, Los Angeles County, instrument no. 20100157610;

4. Exhibit “4" Substitution of Trustee and Full Reconveyance Recorded by Mortgage Electronic Registration Systems, Inc. dated December 13, 2013 and recorded on December 16, 2013 in the official records of Recorder’s Office, Los Angeles County, instrument no. 20131765293.

Requests Nos. 1 – 4 are GRANTED. The Court may take judicial notice of recorded documents. (See authorities cited above.)

No. 1: OVERRULED. Parol evidence rule is inapplicable because this does not relate to a prior or contemporaneous agreement. Nor does Plaintiff’s belief lack foundation or constitute speculation. While Plaintiff’s subjective belief as to the loan payments might be irrelevant where the plain language of the contract controls, Defendants did not object on this ground.

No. 2: OVERRULED. Parol evidence rule bars evidence of a prior or contemporaneous agreements that contradicts terms of an integrated writing (Civ. Proc.,§ 1856), but there is no evidence this the DOT/AOR is an integrated writing.

“In determining whether to issue a preliminary injunction, the trial court considers two related factors: (1) the likelihood that the plaintiff will prevail on the merits of its case at trial, and (2) the interim harm that the plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction.” (Citation omitted.) “The latter factor involves consideration of such things as the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo.” (Citation omitted.)

“The determination whether to issue a preliminary injunction requires the trial court to exercise its discretion by considering and weighing ‘“two interrelated factors,” specifically, the likelihood that plaintiffs will prevail on the merits at trial, and the comparative harm to be suffered by plaintiffs if the injunction does not issue against the harm to be suffered by defendants … if it does.’” (Citation omitted.) “The more likely it is that plaintiffs will ultimately prevail, the less severe must be the harm that they allege will occur if the injunction does not issue. [Citation.] Further, ‘if the party seeking the injunction can make a sufficiently strong showing of [*1351] likelihood of success on the merits, the trial court has discretion to issue the injunction notwithstanding that party's inability to show that the balance of harms tips in his [or her] favor.’” (Citation omitted.)

The determination of whether to grant a preliminary injunction generally rests in the sound discretion of the trial court. (Citation omitted.) “‘Discretion is abused when a court exceeds the bounds of reason or contravenes uncontradicted evidence.’” (Id. at p. 1402.)

A trial court's decision on a motion for a preliminary injunction “‘does not amount to an adjudication of the ultimate rights in controversy. It merely determines that the court, balancing the respective equities of the parties, concludes that, pending a trial on the merits, the defendant should or that he should not be restrained from exercising the right claimed by him [or her].’ [Citations.] The general purpose of such an injunction is the preservation of the status quo until a final determination of the merits of the action. [*1353] [Citations.] Thus, the court examines all of the material before it in order to consider ‘whether a greater injury will result to the defendant from granting the injunction than to the plaintiff from refusing it … .’ [Citations.] In making that determination the court will consider the probability of the plaintiff's ultimately prevailing in the case and, it has been said, will deny a preliminary injunction unless there is a reasonable probability that plaintiff will be successful in the assertion of his rights. [Citations.] … ‘In the last analysis, the trial court must determine which party is the more likely to be injured by the exercise of its discretion [citation] and it must then be exercised in favor of that party [citation].’” (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528 [67 Cal. Rptr. 761, 439 P.2d 889].)

"A trial court may not grant a preliminary injunction, regardless of the balance of interim harm, unless there is some possibility that the plaintiff would ultimately prevail on the merits of the claim. [Citation.]" (Hunt v. Superior Court (1999) 21 Cal.4th 984, 999.)

1. Re: the likelihood that the plaintiff will prevail on the merits of its case at trial.

In the moving papers, Plaintiff sets forth several arguments. However, Plaintiffs address the likelihood of prevailing only as to three claims asserted in the 2AC: (1) the fifth cause of action for breach of contract; (2) the ninth cause of action for violation of B & P Code § 17200; (3) the tenth cause of action for violation of the Truth In Lending Act (“TILA”). The Court will only address Plaintiffs’ arguments that are relevant to these three causes of action as pled in the operative 2AC.

In the usual context, a preliminary injunction is a provisional remedy meant to prevent harm or preserve the status quo pending a trial on the merits. (Citation omitted.) Typically, it is not, in itself, a cause of action (Citation omitted); thus, ordinarily, a preliminary injunction may be sought only when the underlying cause of action on which the provisional remedy rests is presented for decision through the pleadings (Moreno Mut. Irr. Co. v. Beaumont Irr. Dist. (1949) 94 Cal.App.2d 766, 778 [211 P.2d 928] [“A preliminary injunction is warranted only if there is on file a complaint which states a sufficient cause of action for injunctive relief of [*385] the character embraced in the preliminary injunction.”]; see generally Moore & Thomas, Cal. Civ. Practice (2020) Procedure, § 16:119).

(Dep't of Fair Emp't & Hous. v. Superior Court (2020) 54 Cal.App.5th 356, 384-85 [bold emphasis added].)

The first cause of action for breach of contract is asserted by Plaintiff JF Alvarado against Defendant AMN. Importantly, this cause of action assumes that the transfer of property from Plaintiffs Juan Magana Alvarado and Martha Alvarado (“JM&M Alvarado”) to the Herrera Defendants was not void. The 2AC alleges at ¶¶ 136 – 140:

136. Plaintiff JF Alvarado asserts this claim in the alternative to the allegation that no valid contract exists between he and the Herrera Defendants as the Property was taken by fraud from his parents and that the Court should enter an order that the Fraudulent Deed and all Deeds and other encumbrances recorded against the Property are void. Only if the Court finds the transfer of the Property to the Herrera Defendants was not void, Plaintiff JF Alvarado asserts: By the DOT and Promissory Note Defendants AMN and Nelida Herrera, as the managing agent of AMN, represented, acknowledged and agreed that the total principal of the $502,000 Promissory Note included the unpaid balance of all loans against the Property and was thus “all inclusive”. An All-Inclusive Purchase Money Deed of Trust and Assignment of Rents was executed between JF Alvarado, Trustor, and Pacific Coast Title Company (Trustee) and AMN (Beneficiary) which states for purpose of securing "Performance of each … Payment of the indebtedness evidenced by one all-inclusive purchase money promissory note of even date herewith, and any extensions or renewals thereof, in the principal sum of $502,000.00 executed by Trustor in favor of Beneficiary or order. This is an all-inclusive Purchase Money Deed of Trust, securing an All-Inclusive Purchase Money Promissory Note in the original principal amount of Five Hundred Two Thousand and 00/100 DOLLARS ($502,000.00) (the “Note”) which includes within such amount the unpaid balance of the following: A promissory note in the original principal sum of Forty Two Thousand and 00/100 Dollars ($42,000.00) in favor of Sunrise 111, LLC as Payee, secured by a deed of trust recorded May 4, 2012, Document no. 2012-738099, …” The recorded DOT & AOR are attached hereto as Exhibit E. Likewise, the All-Inclusive Purchase Money Promissory Note Secured by Loan Form All Inclusive Purchase Money Deed of Trust between JF Alvarado and AMN was executed and is attached to the FAC as Exhibit F.

137. In or about 2018-2019 AMN breached the DOT and Promissory Note by failing to satisfy the debts owed to the Sunrise Defendants thereby permitting the Sunrise Defendants to commence Nonjudicial Foreclosure on the Property based on two subsumed and novated loans issued by the Sunrise Defendants to the Herrera Defendants.

138. Plaintiff has performed all covenants and condition of his mortgage on the Property.

139. AMN breached the DOT and Promissory Note by failing to pay the Sunrise Defendants’ loans.

140. Defendants’ breach of contract resulted in the Sunrise Defendants’ attempt to Foreclosure on the Property which now clouds title; caused Plaintiff damages which include but are not limited to the emotional distress, attorneys fees to enjoin the nonjudicial foreclosure and other special and general damages, all according to proof at time of trial.

“The elements of a breach of contract claim are that a contract was formed; that the plaintiff did everything required by the contract; that the defendant did not do something required by the contract; and that the plaintiff was harmed as a result. (Citation omitted.)” (CSAA Ins. Exch. v. Hodroj (2021) 72 Cal.App.5th 272, 276.)

A copy of the All-Inclusive Purchase Money Deed of Trust and Assignment of Rents (“DOT/AOR”) is attached to the 2AC as Exhibit F. The DOT/AOR provides in pertinent part on Page 1 as follows:

TOGETHER WITH the rents, issues and profits thereof , SUBJECT, HOWEVER, to the right power and authority given to and conferred upon Beneficiary by paragraph (10) of the provisions incorporated herein by reference to collect and apply such rents, issues and profits . For the Purpose of Securing:

1. Performance of each agreement of Trustor incorporated by reference or contained herein. 2 Payment of the indebtedness evidenced by one all-inclusive purchase money promissory note of even date herewith, and any extensions of renewal thereof. in the principal sum of $502,000.00 executed by Truster in favor of Beneficiary or order.

This is an all-inclusive purchase money deed of trust, securing an all-inclusive purchase money promissory note in the original principal amount of Five Hundred Two Thousand and 00/100 DOLLARS ($502,000.00) (the "Note") which includes within such amount the unpaid balance of the following:

(a) A promissory note in the original principal sum of Forty Two Thousand and 00/100 Dollars ($42,000.00) in favor of Sunrise 111, LLC as Payee, secured by a deed of trust recorded May 4, 2012, Document no. 2012-738099, Book NIA, Page NIA , Official Record of Los Angeles County, California (The Promissory Note secured by such deed of trust is hereinafter called the "Underlying Note").

“Interpretation of a written contract is a question of law for the court unless that interpretation depends upon resolving a conflict in properly admitted extrinsic evidence. (Citation omitted.)” (Alki Partners, LP v. DB Fund Services, LLC (2016) 4 Cal.App.5th 574, 599.) “Under the plain meaning rule, courts give the words of the contract or statute their usual and ordinary meaning. (Citation omitted.)” (Valencia v. Smyth (2010) 185 Cal.App.4th 153, 162.)

In California, we adhere to the objective theory of contract law. Under that theory, “‘[i]t is the objective intent, as evidenced by the words of [*1155] the contract, rather than the subjective intent of one of the parties, that controls interpretation’ [citation].” (Citation omitted.)

(Mission Viejo Emergency Medical Associates v. Beta Healthcare Group (2011) 197 Cal.App.4th 1146, 1154-55.)

Even when a written contract exists, “ ‘ “[e]vidence derived from experience and practice can now trigger the incorporation of additional, [*1179] implied terms.” ’ ” (Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 463 [46 Cal. Rptr. 2d 427, 904 P.2d 834].) “Implied contractual terms ‘ordinarily stand on equal footing with express terms’ ” (ibid.), provided that, “as a general matter, implied terms should never be read to vary express terms” (Carma Developers (Cal.), Inc. v. Marathon Development California, Inc. (1992) 2 Cal.4th 342, 374 [6 Cal. Rptr. 2d 467, 826 P.2d 710]).

(Retired Emps. Ass'n of Orange Cty., Inc. v. Cty. of Orange (2011) 52 Cal. 4th 1171, 1178-79 [bold emphasis added].)

Here, a term of the DOT/AOR is that the Trustor’s payment toward the amounts secured by the DOT/AOR will be used to reduce the Underlying Note. That is, Plaintiff JF Alvarado’s payments to AMN Properties, as Beneficiary, to pay down the $502,000.00 amount secured by the all-includes purchase money deed of trust as security for the all-inclusive purchase money promissory note were to be used to pay the Underlying Note, which is the $42,000.00 promissory note in favor of Sunrise 111, LLC, secured by the deed of trust recorded May 4, 2012.

Indeed, this obligation is an express term in the DOT/AOR, set forth at Page 2 thereof, as follows:

(A) By Beneficiary's acceptance of this All-Inclusive Purchase Money Deed of Trust, Beneficiary covenants and agrees that provided Trustor is not delinquent or in default under the terms of the Note secured hereby, Beneficiary shall pay all installments of principal and interest which shall hereafter become due pursuant to the provisions of the Underlying Note(s) as and when the same become due and payable. In the event Trustor shall be delinquent or in default under the terms of the Note secured hereby, Beneficiary shall not be obligated to make any payments required by the terms of the Underlying Note(s) until such delinquency or default is cured. In the event the Beneficiary fails to timely pay any installment of principal or Interest on the Underlying Note(s) at the time when Trustor is not delinquent or in default under terms of the Note secured hereby, Trustor may, at Trustor’s option make such payments directly to the holder of such Underlying Note(s), in which event Trustor shall be entitled to a credit against the next installment(s) of principal and interest due under the terms of the Note secured hereby equal to the amount so paid and including without limitation, any penalty, charges and expenses paid by Trustor to the holder of the Underlying Note(s) on account of Beneficiary's failing to make such payment. The obligations of Beneficiary hereunder shall terminate upon the earliest of (i) foreclosure of the lien of this All-Inclusive Purchase Money Deed of Trust, of (ii) cancellation of the Note secured hereby and reconveyance of this All-Inclusive Purchase Money Deed of Trust. Should Trustor be delinquent or in default under the terms of the Note secured hereby, Beneficiary consequently incurs any penalties, charges or other expenses on account of the Underlying Note(s) during the period of such delinquency or default , the amount of such penalties, charges and expenses shall be immediately added to the principal amount of the Note secured hereby and shall be immediately payable by Truster to Beneficiary. If at any time the unpaid balance of the Note secured hereby, accrued interest thereon , and all other sums due pursuant to the terms thereof and all sums advanced by Beneficiary pursuant to the terms of this Deed of Trust, is equal to or less than the unpaid principal balance or the Underlying Note(s) and accrued interest thereon, the Note secured hereby, at the option of Beneficiary, shall be cancelled and said property shall be reconveyed from the lien of this Deed of Trust.

Plaintiff JF Alvarado has submitted evidence that he was not in default of the Note in favor of AMN Properties at the time a default was declared under the Sunrise note/deed of trust. (See Declaration of Juan Francisco Alvarado, ¶ 8: “After close of escrow, starting in April 2, 2019, all of my loan payments to AMN were made in full and were timely.”) However, AF Alvarado states that he stopped making payments to AMN after April 2021 after receiving the January 2021 Substitution of Trustee and Notice of Default for Sunrise’s nonjudicial foreclosure. (AF Alvarado Decl., ¶ 11.)

It is true that Plaintiff AF Alvarado ceased making payments to AMN after a default was already declared as to the Sunrise note/deed of trust, that is, once AMN had allegedly breached the contractual obligation to make payments on the Underlying Note in favor of Sunrise. However, by not making payments to AMN, this placed Plaintiff AF Alvarado in default of the Note in favor of AMN, which secured additional sums of money above the $42,000 Sunrise Note, i.e., the difference between $502,000 and $42,000.

Thereafter, Plaintiff AF Alvardo received a Substitution of Trustee and Notice of Default indicating that another nonjudicial foreclosure, this time by AMN, had been commenced. (AF Alvarado Decl., ¶ 12.) The problem for Plaintiffs is that they did not make any showing in connection with this motion for a preliminary injunction that they would likely prevail on any theories pled in the 2AC which would avoid foreclosure by AMN on the DOT/AOR. The fifth cause of action for breach of contract only addresses whether AMN was responsible for paying the Underlying Note in favor of Sunrise, but does not address Plaintiff AF Alvarado’s cessation of payments to AMN.

While a material breach by one party may excuse performance by another, under the terms of the DOT/AOR, if the Beneficiary (AMN) failed to make timely payments on the Underlying Note, Trustor (Plaintiff JF Alvarado), had the option to make such payments directly to the holder of such Underlying Note, and thereby be entitled to a credit in that amount against the next installment of principal and interest paid to the Beneficiary (AMN). Thus, the contractual language does not provide that Trustor (Plaintiff JF Alvarado)’s obligations to make payments under the Note to AMN are discharged if Beneficiary AMN fails to make payments on the Underlying Note to Sunrise. Rather, the parties contemplated that their obligations under the DOT/AOR and AMN Note would continue with the possibility that Trustor JF Alvarado would be entitled to a credit of any amounts he paid directly to Sunrise on the Underlying Note.

AMN was entitled to declare a default under the Note and DOT/AOR by virtue of Plaintiff AF Alvarado’s cessation of payments to AMN. Moreover, AMN’s obligation to make payments on the Underlying Note was conditioned upon AF Alvardo’s payment under the Note:

As such, Plaintiff has not demonstrated a likelihood of prevailing on the fifth cause of action.

The ninth cause of action for violation of Business & Professions Code § 17200 is asserted by all Plaintiffs against all Defendants. In the moving papers, Plaintiffs base the likelihood of success on this cause of action upon the likelihood of success on the TILA cause of action. (Ps & As, Page 13:26-27.) For the reasons discussed below, Plaintiffs have not demonstrated a likelihood of success on the TILA cause of action, and thus, have not demonstrated a likelihood of success on the § 17200 claim to the extent it is based upon a TILA violation.

The tenth cause of action for violation of the Truth In Lending Act, 15 USC, § 1601 (“TILA”) is asserted by all Plaintiffs against all Defendants. ¶ 185.A – F, H of the 2AC address the Sunrise Defendants’ loan, which does not address the problem identified above regarding Plaintiff AF Alvarado’s default under the AMN Note/DOT.

The tenth cause of action is based in part on the mistaken premise that the Sunrise Loan would be paid off in connection with the issuance of the $502,000 mortgage loan. (2AC, ¶ 185.I & J.) .) However, as discussed above, this was not the case. The DOT/AOR expressly contemplated that the Underlying Note in favor of Sunrise would be paid as JF Alvarado made payments on the AMN Note. Thus, this does not constitute a TILA violation.

¶ 185.G alleges that the Herrera Defendants representation that they were only reducing the existing mortgage payment when in fact they had effected a transfer of the property to the Herrera Defendants. But, even assuming TILA applied to the AMN loan transaction, this is not the type of disclosure required by TILA, and thus would not constitute a TILA violation.

. . . TILA requires that specific disclosures be provided to borrowers of qualifying consumer credit transactions that are secured by the borrowers' residence. Section 1635 of title 15 of the United States Code mandates that lenders clearly and conspicuously disclose to borrowers that borrowers have a right to rescind the transaction until midnight of the third business day following consummation of the transaction. (15 U.S.C. § 1635(a) n3; 12 C.F.R. § 226.23(b) (2006).) HOEPA further directs lenders to [*1350] disclose: that borrowers are not required to complete the loan agreement merely because they have received disclosures or signed the loan application; that they could lose their home if they do not meet their loan obligations; and the percentage rate, the amount of monthly payments, and in the case of adjustable rate loans, that the interest rate and payment could increase. (15 U.S.C. § 1639(a)(1) & (a)(2).) n4 Such disclosures must be made “not less than 3 business days prior to consummation of the transaction.” (15 U.S.C. § 1639(b)(1).)

As such, in connection with this motion[1], Plaintiff has not demonstrated a likelihood of prevailing on any theory which would avoid the foreclosure by AMN (as opposed to the Sunrise foreclosure).

2. Re: the interim harm that the plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction.

Undoubtedly, if the preliminary injunction is denied, Plaintiffs will lose the property if they do not win a bid on it at the trustee’s sale.

On the other hand, Defendants will only suffer a delay in receiving money at the trustee’s sale.

However, as discussed above, because Plaintiffs have not demonstrated a likelihood of prevailing on the merits at trial, they are not entitled to a preliminary injunction.

"A trial court may not grant a preliminary injunction, regardless of the balance of interim harm, unless there is some possibility that the plaintiff would ultimately prevail on the merits of the claim. [Citation.]" ( Butt v. State of California, supra, 4 Cal. 4th at p. 678.)

(Hunt v. Superior Court (1999) 21 Cal.4th 984, 999 [bold emphasis and underlining added].)

[1] While theories which would render the transfer of the property from Plaintiffs JM & M Alvarado void by virtue of cancellation of the Deed might avoid the AMN foreclosure, Plaintiffs did not make such a showing in connection with this motion for preliminary injunction. Plaintiffs only addressed likelihood of success on the merits of the fifth, ninth and tenth causes of action.