Judge: Curtis A. Kin, Case: 24STCV14174, Date: 2024-12-03 Tentative Ruling
Case Number: 24STCV14174 Hearing Date: December 3, 2024 Dept: 86
ORDER TO SHOW CAUSE
RE: PRELIMINARY INJUNCTION
Date: 12/3/24
(9:30 AM)
Case: Deanna Edwards v. U.S. Bank
National Association as Trustee, et al. (24STCV14174)
TENTATIVE RULING:
Plaintiff Deanna Edwards’ request for a preliminary
injunction is DENIED.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On March 28, 2019, plaintiff Deanna Edwards and non-party
Caliber Home Loans, Inc. (“Caliber”) entered into a loan agreement (“Loan”),
whereby plaintiff borrowed $2,507,500 to purchase a triplex located at 1303 N.
Citrus Avenue, Hollywood, California 90028-7602 (“Property”). (11/18/24 Benight
Decl. ¶ 9 & Ex. 1 [Note evidencing Loan]; Edwards Decl. ¶ 4.) Repayment of
the Loan is secured by a Deed of Trust encumbering the property. (11/18/24
Benight Decl. ¶ 10 & Ex. 2.) Plaintiff is required to make monthly payments
under the Loan. (11/18/24 Benight Decl. ¶¶ 11, 12 & Ex. 1 at ¶ 3(A)
[principal and interest], Ex. 2 at ¶ 3 [property tax and hazard insurance
payments].) Plaintiff currently uses the Property as her primary residence.
(Edwards Decl. ¶ 6.)
As of May 16, 2021, defendant Select Portfolio Servicing,
Inc. (“SPS”) has been servicing the Loan. (11/18/24 Benight Decl. ¶ 13 &
Ex. 3.) The Loan is currently held by defendant U.S. Bank National Association
as Trustee on Behalf of Cold 2021-3R Mortgage Loan Trust (the “Trust”). (11/18/24
Benight Decl. ¶ 14.)
Plaintiff made ten initial payments through February 2020,
but she had not made any payments since then. (11/18/24 Benight Decl. ¶ 12.) At
the time SPS took over servicing of the Loan, plaintiff had a loan modification
application with Caliber pending. (11/18/24 Benight Decl. ¶ 15; Edwards Decl. ¶
11.) On June 17, 2021, SPS sent plaintiff a letter offering plaintiff a “Trial
Modification Plan” (“Trial Plan”), which required plaintiff to make payments of
$13,143.93 on or before August 1, September 1, and October 1 of 2021, or else
the Trial Plan would be cancelled. (11/18/24 Benight Decl. ¶ 18 & Ex. 6; Edwards
Decl. ¶ 14 & Ex. 1.) The accompanying letter stated that the offer must be
accepted by August 1, 2021, or SPS would consider the offer rejected. (11/18/24
Benight Decl. ¶ 18 & Ex. 6; Edwards Decl. ¶ 14 & Ex. 1.) The Trial Plan
stated: “To accept the Plan, you must make your First Payment by the date indicated
below. The Plan will become active and valid only if SPS receives the First
Payment by the scheduled date of your First Payment under the Plan.” (11/18/24
Benight Decl. ¶¶ 18, 19 & Ex. 6; Edwards Decl. ¶ 14 & Ex. 1.) The
accompanying letter also stated, “Please note that if you do not accept this offer
by the due date listed above, you may lose your opportunity to participate in
these options now and in the future. (Edwards Decl. ¶ 14 & Ex. 1.)
On June 19, 2021, plaintiff called SPS. (11/18/24 Benight
Decl. ¶ 20 & Ex. 7; Hernandez Decl. Ex. 2.) The transcript of the call and
corresponding notes indicate that plaintiff requested to be placed on three
months of forbearance, explaining to the SPS representative, Gisell Gallardo,
that she was still on unemployment due to COVID-19. (Hernandez Decl. Ex. 2 at
40:9-18; see also 11/18/24 Benight Decl. ¶ 20 & Ex. 7 [6/19/21 note
identified SPS representative as Gallardo].) Pursuant to plaintiff’s request,
Ms. Gallardo placed plaintiff on three months forbearance. (Hernandez Decl. Ex.
2 at 40:19-41:13.)
During the call, plaintiff asked Ms. Gallardo: “So that will
be for July and August and September still in forbearance and we’ll reevaluate
it again for October?” (Hernandez Decl. Ex. 2 at 45:11-13.) Ms. Gallardo
responded: “Yes. And that’s when you’ll receive a letter for it.” (Hernandez Decl. Ex. 2 at 45:14-15.)
Plaintiff then asked: “And then when I do go into the trial modification, so
then once I am able to go back to work and I’m on the trial modification, what
I heard you say is that I pay for three months in a row and then what I owed
before then goes on the back end of my loan? Is that what they’re – is that
what they’re – okay.” (Hernandez Decl. Ex. 2 at 45:16-21.) Ms. Gallardo
responded: “Yeah. So – yeah, so with this one, with the trial modification, it
basically gives you three months of payments that you have to make. That’s
basically you agreeing to that payment plan and modification. Once those three
payments have been made, a final letter saying that you – the final
modification approval, that’s when we’ll place that amount back of the loan and
due at the maturity date.” (Hernandez Decl. Ex. 2 at 45:22-46:4.) With respect
to the maturity date, Ms. Gallardo explained further: “So that past due amount
will just be pushed to the end of the loan. So during that time, you will
either pay it off completely when it reaches maturity or as well we’ll just
come up with a different payment plan to pay that off.” (Hernandez Decl. Ex. 2
at 46:10-15.) Seeking confirmation of her understanding, plaintiff asked: “So
for July, August, September, I’m good. And then October, for forbearance as of
right now.” (Hernandez Decl. Ex. 2 at 46:21-22.) Ms. Gallardo responded: “Yeah.
So right now you’re all set.” (Hernandez Decl. Ex. 2 at 46:23-24.)
On July 2, 2021, SPS sent plaintiff a “Forbearance Plan,”
stating that plaintiff’s mortgage account was approved for a three-month
temporary hardship forbearance. (11/18/24 Benight Decl. ¶ 21 & Ex. 8; Edwards
Decl. ¶ 15 & Ex. 2.) The letter also stated: “If you can resume making
payments at any point during your forbearance period, it is in your best
interest to do so, but you are not required to.” (11/18/24 Benight Decl. ¶ 21
& Ex. 8; Edwards Decl. ¶ 15 & Ex. 2.)
Having found the Trial Plan and the Forbearance Plan to be
contradictory, plaintiff maintains that, before the deadline to accept the Trial
Plan, she contacted SPS. (Edwards Decl. ¶ 17.) SPS purportedly informed plaintiff
that, “before the due date to accept the loan modification that, due to the
July 2021 forbearance plan being in place, I could begin making the trial
period payments for the June 17, 2021 trial loan modification on October 1,
2021.” (Edwards Decl. ¶ 18.) Based on the SPS representative’s assurance,
plaintiff did not make the first payment on the Trial Plan in August 2021.
(Edwards Decl. ¶ 19.) The only evidence of this call is plaintiff’s
declaration. Defendants SPS and the
Trust did not provide evidence of this call ever having taken place.
On August 17, 2021, SPS representative Karla Mejia spoke
with plaintiff. (11/18/24 Benight Decl. ¶ 22 & Ex. 9; Hernandez Decl. Ex.
3.) Ms. Mejia asked plaintiff, “[T]he reason for the phone call is because I do
show we sent out documentation advising you that you were approved for a trial
modification. Your first payment would have been due on August 1st. So I was
just reaching out to seeing if you were wanting to accept that plan.”
(Hernandez Decl. Ex. 3 at 56:13-17.) Plaintiff indicated that she was still
unemployed and that she was not able to pay the outstanding trial payments of
$13,143.93. (Hernandez Decl. Ex. 3 at 56:20, 58:2-7; see also 11/18/24
Benight Decl. ¶ 20 & Ex. 9 [same].) After plaintiff mentioned her desire to
have another three months of forbearance, Ms. Mejia explained that the three payments
from the Trial Plan were due on October 1, 2021, all at once. (Hernandez Decl.
Ex. 3 at 58:15-59:17; see also Herandez Decl. Ex. 3 at 60:19-24.) Plaintiff
responded: “No. There’s no way I could have that by October the 1st. Not on 400—not
on $400 a week.” (Hernandez Decl. Ex. 3 at 59:18-20; see also Hernandez
Decl. Ex. 3 at 57:4-7 [plaintiff stating that she was currently receiving $423
a week].) Plaintiff asked for another forbearance extension of three months.
(Hernandez Decl. Ex. 3 at 61:4-6.) Ms. Mejia said that the current Trial Plan
was the only option available and told plaintiff to call back on October 1 to
see what other options are available. (Hernandez Decl. Ex. 3 at 61:7-62:4.) Ms.
Mejia also stated: “[J]ust in the meanwhile any time you are able to make any
payments, just give us a call and we can go ahead and process that. But you
would just want to check back October 1st and we’ll see what can be done.” (Hernandez Decl. Ex. 3 at 62:19-23.)
On August 27, 2021, SPS representative Lauri Brock spoke
with plaintiff. (11/18/24 Benight Decl. ¶ 23 & Ex. 10; Hernandez Decl. Ex. 4.)
Ms. Brock explained that, under the then-current Trial Plan, plaintiff was
required to make all three trial payments of $13,143.93 by October 1.
(Hernandez Decl. Ex. 4 at 68:11-19.) Otherwise, the Trial Plan would cancel out,
requiring plaintiff to pay the higher contractual amount of the Loan.
(Hernandez Decl. Ex. 4 at 65:11-13, 65:21-23, 67:2-7.) Plaintiff confirmed that
she was still on unemployment and would not be able to make payments until she
returned to work. (Hernandez Decl. Ex. 4 at 65:16-20, 65:24-25, 67:8-9,
67:14-20, 68:25-69:2; see also 11/18/24 Benight Decl. ¶ 23 & Ex. 10
[same].)
Defendants assert that plaintiff did not make any of the
payments required under the Trial Plan, either on August 1, September 1, and
October 1 of 2021, or any time thereafter. (11/18/24 Benight Decl. ¶ 25.) On
September 2, 2021, SPS sent plaintiff a letter stating that it considered the
Trial Plan withdrawn because plaintiff did not accept the plan by the
established deadline. (11/18/24 Benight Decl. ¶ 26 & Ex. 11.) By contrast,
plaintiff avers that she contacted SPS in September 2021, but SPS would not take
her first trial loan modification payment at that time, causing plaintiff to
protest. (Edwards Decl. ¶¶ 20, 21.)
On October 15, 2021, SPS received another request for a loan
modification from plaintiff. (11/18/24 Benight Decl. ¶ 27.) On November 1,
2021, SPS sent plaintiff a letter stating that she was approved for a Repayment
Plan with monthly payments of $34,226.98 due from December 2021 to May 2022,
beginning on December 3, 2021. (11/18/24 Benight Decl. ¶ 27 & Ex. 12.) Plaintiff
was required to make payments by or before each of the due dates specified in
the Repayment Plan, or the plan would be cancelled. (11/18/24 Benight Decl. ¶ 27
& Ex. 12.)
On November 25, 2021, plaintiff appealed the Repayment Plan.
(11/18/24 Benight Decl. ¶ 29 & Ex. 14; Edwards Decl. ¶ 21 & Ex. 3.) Plaintiff
wrote: “I am extremely confused by this ‘Repayment Plan’ notice, as I was under
the impression that I would be able to engage in a Modification process /
option AFTER my forbearance period ended.” (Edwards Decl. ¶ 21 & Ex. 3,
emphasis in original.) Plaintiff also wrote: “Now, as the Forebearance dates
come to an end, I was expecting to begin a modification plan like the one
previously send while I was still protected under an approved forbearance,
however I instead have found myself being sent a ‘Repayment Plan’ which expects
me to pay DOUBLE the amount of my previous mortgage in order to pay off the
missed payment amounts in a matter of MONTHS…. I am now working again and am
able / would happily accept the previously offered $13,500 dollars a month
mortgage option with the forbeared amount added to the back end of my existing
loan terms.” (Edwards Decl. ¶ 21 & Ex. 3, emphasis in original.)
On December 9, 2021, SPS responded to plaintiff’s appeal. (11/18/24
Benight Decl. ¶ 29 & Ex. 15.) SPS stated: “SPS reviewed your complete
Assistance Review Application for eligibility under its loss mitigation
options, which were established through investor rules and were based on your
individual circumstances. We were unable to offer you a SPS Trial Modification
Plan because you have previously been provided with a decision for this
program.” (11/18/24 Benight Decl. ¶ 29 & Ex. 15.) SPS explained that the Repayment
Plan was offered to plaintiff as an alternative. (11/18/24 Benight Decl. ¶ 29
& Ex. 15.) Because plaintiff did not accept the Repayment Plan by December
2, 2021, SPS considered the request for loan modification withdrawn and sent
plaintiff a letter to this effect on December 9, 2021. (11/18/24 Benight Decl.
¶ 30 & Ex. 16.) On January 5, 2022, plaintiff responded, stating: “I am
extremely confused why there does not seem to be the possibility of a trial
modification or Loan modification possible when I had been told on multiple
occasions previously, that there would be a modification option available after
my approved forbearance dates had passed.” (Edwards Decl. ¶ 21 & Ex. 4.)
Defendants did not indicate in their papers whether they provided any responses
to plaintiff’s January 5, 2022 correspondence.
On January 22, 2024, in response to plaintiff’s request for
assistance, SPS indicated that no home retention loss mitigation options were
available, but home non-retention options may be available, like a short sale
or a deed in lieu of foreclosure. (11/18/24 Benight Decl. ¶ 39 & Ex. 26;
Edwards Decl. ¶ 37.)
On March 15, 2024, SPS caused a Notice of Default to be
recorded against the Property. (11/18/24 Benight Decl. ¶ 42 & Ex. 28.) The
Notice of Default indicated that the amount of plaintiff’s default was
$882,548.37 as of March 13, 2024. (11/18/24 Benight Decl. ¶ 42 & Ex. 28.)
On August 28, 2024, SPS caused a Notice of Trustee’s Sale to be recorded
against the Property. (11/18/24 Benight Decl. ¶ 44 & Ex. 31.) A balance of
$3,280,283.21 remains on the Loan. (11/18/24 Benight Decl. ¶ 46.)
On June 6, 2024, plaintiff commenced the instant action. On
June 20, 2024, plaintiff filed the operative First Amended Complaint. On November
8, 2024, pursuant to SPS’s stipulation, the Court (Hon. Stephen I. Goorvitch)
entered a temporary restraining order enjoining the foreclosure sale of the
Property before December 6, 2024. Judge Goorvitch set an order to show cause
why a preliminary injunction shall not issue for December 3, 2024, at 9:30 a.m.
II.
PRELIMINARY MATTERS
All evidentiary objections are OVERRULED.
In the reply, plaintiff asserts that the opposition exceeded
the 15-page limit for oppositions under Rule of Court 3.1113(d). The memorandum
of points and authorities in defendants’ opposition filed on November 18, 2024
was 20 and a half pages long. However, in the minute order setting an order to
show cause, Judge Goorvitch allowed defendants to file any supplemental
oppositions on or before November 18, 2024. (11/8/24 Minute Order at 2.) The opposition
filed on November 18, 2024 contains the same arguments asserted in defendants’ opposition
to plaintiff’s ex parte application for a temporary restraining order filed on
November 7, 2024, plus additional facts and arguments concerning whether
plaintiff was assigned a single point of contact. The November 7, 2024
opposition contained a 15-page memorandum of points and authorities. The
November 18, 2024 opposition contained five and a half pages of additional
argument. Based on Judge Goorvitch’s leave to file a supplemental opposition,
five and a half additional pages is not unreasonable. The Court considers the
entirety of defendants’ opposition filed on November 18, 2024.
III.
ANALYSIS
“[T]he question whether a preliminary injunction should be
granted involves two interrelated factors: (1) the likelihood that the
plaintiff will prevail on the merits, and (2) the relative balance of harms
that is likely to result from the granting or denial of interim injunctive
relief.” (White v. Davis (2003) 30 Cal. 4th 528, 554.)
The Court first examines the likelihood that plaintiff will
prevail on the merits.
In the operative First Amended Complaint, plaintiff alleges
violations of Civil Code sections 2923.7 and 2924.17, which are contained in
the Homeowner Bill of Rights (“HBOR”). “When a mortgage servicer commits a
‘material violation’…the HBOR allows the borrower to sue for injunctive relief
before a foreclosure sale is recorded.” (Billesbach v. Specialized Loan
Servicing LLC (2021) 63 Cal.App.5th 830, 845, citing Civ. Code §
2924.12(a); see also Civ. Code § 2924.12(a) [“If a trustee's deed
upon sale has not been recorded, a borrower may bring an action for injunctive
relief to enjoin a material violation of Section 2923.55, 2923.6, 2923.7,
2924.9, 2924.10, 2924.11, or 2924.17”].) “A material violation is one that
affected the borrower’s loan obligations, disrupted the borrower’s
loan-modification process, or otherwise harmed the borrower.” (Billesbach,
63 Cal.App.5th at 837.) “[T]he HBOR creates no liability for a technical
violation that does not thwart its purposes.” (Id. at 845.) The purpose
of HBOR is “to ensure that, as part of the nonjudicial foreclosure process,
borrowers are considered for, and have a meaningful opportunity to obtain,
available loss mitigation options, if any, offered by or through the borrower's
mortgage servicer, such as loan modifications or other alternatives to
foreclosure.” (Civ. Code § 2923.4.)
Civil Code § 2923.7(a) states: “When a borrower requests a
foreclosure prevention alternative, the mortgage servicer shall promptly
establish a single point of contact and provide to the borrower one or more
direct means of communication with the single point of contact.”
Civil Code § 2924.17(a) states: “A declaration recorded
pursuant to Section 2923.5 or pursuant to Section 2923.55, a notice of default,
notice of sale, assignment of a deed of trust, or substitution of trustee
recorded by or on behalf of a mortgage servicer in connection with a foreclosure
subject to the requirements of Section 2924, or a declaration or affidavit
filed in any court relative to a foreclosure proceeding shall be accurate and
complete and supported by competent and reliable evidence.”
It is not necessary to determine whether SPS provided
plaintiff with a single point of contact or whether the Notice of Default or
supporting declaration were accurate and supported by competent and reliable
evidence. Even if SPS violated Civil Code sections 2923.7 and 2924.17, such
violations do not appear to be material, as the evidence currently before the
Court establishes that plaintiff’s loan obligations were not affected,
plaintiff’s loan modification process was not disrupted, and plaintiff was not
otherwise harmed by any violations of HBOR. (Billesbach, 63 Cal.App.5th
at 837.)
On June 17, 2021, in response to plaintiff’s request for a
loan modification, SPS offered plaintiff a Trial Plan, which gave plaintiff the
opportunity to make three payments of $13,143.93 on or before August 1,
September 1, and October 1 of 2021. (11/18/24 Benight Decl. ¶ 18 & Ex. 6.)
Upon plaintiff’s request, SPS granted plaintiff a three-month forbearance of
the payments under the Trial Plan. (11/18/24 Benight Decl. ¶ 21 & Ex. 8.) After
plaintiff failed to make any payments under the Trial Plan (11/18/24 Benight
Decl. ¶ 25) and sought another loan modification, SPS offered plaintiff a
Repayment Plan, which provided that SPS would refrain from commencing
foreclosure proceedings so long as plaintiff made six monthly payments of
$34,226.98 beginning on December 3, 2021 (11/18/24 Benight Decl. ¶ 27 & Ex.
12.) SPS has thus conducted three separate loss mitigation reviews to determine
whether plaintiff was entitled to a foreclosure alternative.
To the extent that plaintiff was not offered the opportunity
to tack on arrearages to the back end of the Loan, otherwise known as a
deferral plan, plaintiff is not entitled to any specific loss mitigation plan. “From
the standpoint of substantive rights and obligations, the HBOR does not confer
upon borrowers any right to receive a loan modification or other loss
mitigation option.” (Morris v. JPMorgan Chase Bank, N.A. (2022) 78
Cal.App.5th 279, 297.) HBOR only requires plaintiff to have been considered for,
and had a meaningful opportunity to obtain, available loss mitigation options.
(See Civ. Code § 2923.4.) To the extent that a deferral plan was
available (see Goodell Decl. ¶¶ 23, 41 & Ex. 4 at 75:8-13), plaintiff
does not establish that a deferral plan was available to her. Indeed,
SPS’s person most qualified testified that deferral was not available because
plaintiff’s debt was too high. (Goodell Decl. ¶ 41 & Ex. 4 at 190:14-16.)
Plaintiff complains of not having been granted access to investor
guidelines, servicing agreements, or policies and procedures governing
foreclosure prevention. (Reply at 8:1-8.) Nevertheless, regardless of whether
defendants are required to provide plaintiff with these documents in discovery,
they are not currently before the Court, which must base its decision on the
record before it.
Based on the foregoing, plaintiff does not show that any
violation of sections 2923.7 and 2924.17 deprived her of consideration of
applications for, or the meaningful opportunity to obtain, loss mitigation
options,
Plaintiff also asserts a violation of Civil Code section
2924.11. No violation of section 2924.11 was asserted in the FAC. Even if the
Court were to consider whether SPS violated section 2924.11, the Court would
find that plaintiff did not establish a probability of prevailing on the merits
as to that claim as well. Section 2924.11(a) states, in relevant part: “If a
foreclosure prevention alternative is approved in writing prior to the
recordation of a notice of default, a mortgage servicer, mortgagee, trustee,
beneficiary, or authorized agent shall not record a notice of default under
either of the following circumstances…(1) The borrower is in compliance with
the terms of a written trial or permanent loan modification, forbearance, or
repayment plan.”
Plaintiff argues that she was in compliance with the Trial
Plan because the Forbearance Plan and oral statements from SPS’s representative
confirmed that she had until October 1, 2021 to begin making payments. (Edwards
Decl. ¶ 21.) Although the Trial Plan, dated June 17, 2021, stated that plaintiff
was required to make a first payment on August 1, 2021 (11/18/24 Benight Decl.
¶ 18 & Ex. 6), the subsequent Forbearance Plan, issued on July 2, 2021,
indicated that plaintiff could refrain from making payments for three months, i.e.,
July, August, and September of 2021. (11/18/24 Benight Decl. ¶ 21 & Ex. 8.)
Based on the Forbearance Plan, SPS should not have deemed
the Trial Plan withdrawn on September 2, 2021 based on failure to make the
August 1, 2021 payment. (11/18/24 Benight Decl. ¶ 26 & Ex. 11.) Nevertheless,
even if plaintiff had until October 1, 2021 to make payments, plaintiff has not
demonstrated that she could have made any payments. Had plaintiff made all
three trial payments by October 1, 2021, SPS would have activated the Trial
Plan. (11/18/24 Benight Decl. ¶ 26.) Reading the Trial Plan and the Forbearance
Plan together, SPS’s assertion that all three trial payments were due by
October 1, 2021 is supported. (See Civ. Code § 1642 [“Several contracts
relating to the same matters, between the same parties, and made as parts of
substantially one transaction, are to be taken together”].) While the
Forbearance Plan allowed plaintiff to refrain from making payments in July,
August, and September of 2021, the Trial Plan required plaintiff to make three
payments of $13,143.93 on August 1, September 1, and October 1 of 2021. (11/18/24
Benight Decl. ¶ 18 & Ex. 6; 11/18/24 Benight Decl. ¶ 21 & Ex. 8.) Because
the Trial Plan required the August and September payments to be made, the
Forbearance Plan allowed plaintiff to make those payments on October 1, 2021.
Plaintiff contends that SPS refused to accept her first
trial loan modification payment when she contacted SPS in September 2021. (Edwards
Decl. ¶ 20.) First, as stated above, more than a “first” payment was required
to comply with the Trial Plan. Indeed, when plaintiff asked if payments of
$13,000 would start on October 1, 2021, the SPS representative corrected her,
stating that all three trial payments were due by October 1, 2021. (Hernandez
Decl. Ex. 4 at 66:25-67:7, 68:11-19.) Plaintiff was told multiple times that
all three payments were due by October 1, 2021. (Hernandez Decl. Ex. 3 at
58:15-59:17, 60:19-24.) Second, on August 17 and August 27, 2021, plaintiff
told SPS’s representatives that she was not able to make any payments.
(Hernandez Decl. Ex. 3 at 59:18-20, Ex. 4 at 65:16-20, 65:24-25, 67:8-9,
67:14-20, 68:25-69:2.) Considering plaintiff’s assertions of financial
inability to make payments, plaintiff’s assertion that she attempted to make
any payment in September 2021 is not credible. Indeed, the appeals presented by
plaintiff contain no assertion that SPS ever rejected any attempt by plaintiff
to make a payment. (See Edwards Decl. ¶ 21 & Exs. 3, 4.)
Given the foregoing, the Court finds that plaintiff fails to
show that SPS recorded a Notice of Default while she was in compliance with the
terms of a written trial or permanent loan modification, forbearance, or
repayment plan, as prohibited by Civil Code section 2924.11(a). Plaintiff
having failed to make the three trial payments by October 1, 2021, and the
evidence otherwise being devoid of any indication that plaintiff was able to
make payments, plaintiff was not entitled to reactivation of the Trial Plan. (See
Civ. Code § 2923.6(g) [“In order to minimize the risk of borrowers
submitting multiple applications for first lien loan modifications for the
purpose of delay, the mortgage servicer shall not be obligated to evaluate
applications from borrowers who have been evaluated or afforded a fair
opportunity to be evaluated consistent with the requirements of this section,
unless there has been a material change in the borrower’s financial
circumstances since the date of the borrower's previous application and that
change is documented by the borrower and submitted to the mortgage servicer”].)
No other basis for an injunction was asserted by plaintiff
in the ex parte application or the reply. Accordingly, having failed to show a
likelihood of prevailing on any cause of action, plaintiff’s request for a
preliminary injunction is DENIED, notwithstanding any harm that may result from
the denial of plaintiff’s request. (Jessen v. Keystone Savings & Loan
Assn. (1983) 142 Cal.App.3d 454, 459 [“In a practical sense it is
appropriate to deny an injunction where there is no showing of reasonable
probability of success, even though the foreclosure will create irreparable
harm, because there is no justification in delaying that harm where, although
irreparable, it is also inevitable”].)
The temporary restraining order entered on November 8, 2024
is hereby DISSOLVED. The Court’s Order
to Show Cause Re: Preliminary Injunction is DISCHARGED.