Judge: James C. Chalfant, Case: 23STCV17471, Date: 2023-08-29 Tentative Ruling

Case Number: 23STCV17471    Hearing Date: August 29, 2023    Dept: 85

            Plaintiff Ahnal Criego Brown (“Brown”) applies for a preliminary injunction enjoining Defendants Nationstar Mortgage LLC (“Nationstar”) and MTC Financial Inc., doing business as Trustee Corps. (“MTC”), from selling the real property located at 833 W 41st Drive, Los Angeles, CA 90037 (“Property”). 

            The court has read and considered the moving papers, opposition, and reply,[1] and renders the following tentative decision.

            A. Statement of the Case

            1. Complaint

            Plaintiff Brown commenced this proceeding on July 25, 2023, alleging causes of action for (1) violation of Civil Code[2] section 2923.5, (2) violation of section 2923.7, (3) violation of Business & Professions Code (“Bus. & Prof. Code”) sections 17200 et seq., and (4) declaratory relief.  The unverified Complaint alleges in pertinent part as follows.

            On July 3, 2007, Brown took out a $477,100 loan mortgage against the Property from California Empire Bancorp, Inc. (“Loan”).  A Deed of Trust (“DOT”) was recorded on July 11, 2007 to that effect.  In January 2013, Nationstar became the Loan’s servicer.  In January 2020, Nationstar granted a forbearance on the Property, which was set to expire on April 2021.  When it expired, Brown tried to ask Nationstar how to resume Loan payments, but she could not reach a representative. 

            At the same time, Brown was applying for loss mitigation options online.  Whenever she checked the applications’ status online, they were not being processed.  When she contacted Nationstar about them, representatives could not confirm it was reviewing the applications.  Nationstar kept asking Brown to file new applications, and she did.  Despite this, she never received notice that any of her applications were under review or needed additional documents. 

            On March 21, 2023, MTC, acting on Nationstar’s behalf, recorded a Notice of Default (“NOD”) against the Property.  Defendants still had not provided a written determination on the loss mitigation applications or a written explanation of the specific grounds for denial thereof, if Defendants had in fact denied them.  The NOD also included a declaration of compliance stating that Nationstar contacted Brown to assess her financial situation and explore options to avoid foreclosure as required under section 2923.55(b)(2).  Defendants never contacted Brown and her phone records prove that she did not miss a phone call or message from them to that effect.

            Defendants also never appointed a Single Point of Contact (“SPOC”) for Brown, which would have prevented foreclosure without compliance with the Homeowner’s Bill of Rights (“HBOR”) and other relevant statutes.

            Brown continued to submit loss mitigation applications to cure her default.  Nationstar confirmed that it received the applications but request updated documents.  Brown never received a written determination for the applications.

            On June 27, 2023, MTC, on Nationstar’s behalf, recorded a Notice of Trustee’s Sale (“NOS”) against the Property.  Defendants intend to conduct this sale on August 4, 2023.

            Brown seeks an order compelling Defendants to rescind the NOD and NOS and to review the loan modification applications in good faith.  The court should also enjoin the trustee sale of the Property during the pendency of this action.  Brown also seeks damages and attorney’s fees and costs according to proof and statute, as well as restitution.

            2. Course of Proceedings

            On July 27, 2023, Brown amended the Complaint to add Right Path Servicing (“Right Path”) as a Defendant.  Also on July 27, 2023, Brown served MTC with the Complaint and Summons.

            On July 28, 2023, Brown served Nationstar with the Complaint and Summons.

            On July 31, 2023, Department 82 (Hon. Curtis Kin) found that the ex parte application for temporary restraining order (“TRO”) and order to show cause re: preliminary injunction (“OSC”) was calendared for that department in error and ordered the matter calendared for this court.

            On July 31, 2023, MTC filed a declaration of non-monetary status.  It asserted that it took all actions solely at the behest of the DOT’s beneficiary, Nationstar.

            On August 1, 2023, this court granted Brown’s ex parte application for a TRO and OSC based only on sections 2923.5 and 2923.7.[3]  The court ordered Brown to file a supplemental declaration to address the foundation required in section 2924.15.  MTC accepted service of the Summons, Complaint, moving papers, supplemental declaration, and the granted TRO.  The court ordered personal service on all other named Defendants by August 3, 2023, with proof of service filed by August 7, 2023.

            On August 2, 2023, Brown served all Defendants with a supplemental declaration by mail.

            On August 22, 2023, Nationstar filed an Answer.

            B. Applicable Law

            1. Preliminary Injunction

            An injunction is a writ or order requiring a person to refrain from a particular act; it may be granted by the court in which the action is brought, or by a judge thereof; and when granted by a judge, it may be enforced as an order of the court.  CCP §525.  An injunction may be more completely defined as a writ or order commanding a person either to perform or to refrain from performing a particular act.  See Comfort v. Comfort, (1941) 17 Cal.2d 736, 741. McDowell v. Watson, (1997) 59 Cal.App.4th 1155, 1160.[4]  It is an equitable remedy available generally in the protection or to prevent the invasion of a legal right.  Meridian, Ltd. v. City and County of San Francisco, et al., (1939) 13 Cal.2d 424.

            The purpose of a preliminary injunction is to preserve the status quo pending final resolution upon a trial.  See Scaringe v. J.C.C. Enterprises, Inc., (1988) 205 Cal.App.3d 1536. Grothe v. Cortlandt Corp., (1992) 11 Cal.App.4th 1313, 1316; Major v. Miraverde Homeowners Assn., (1992) 7 Cal.App.4th 618, 623.  The status quo has been defined to mean the last actual peaceable, uncontested status which preceded the pending controversy.  Voorhies v. Greene (1983) 139 Cal.App.3d 989, 995, quoting United Railroads v. Superior Court, (1916) 172 Cal. 80, 87. 14859 Moorpark Homeowner’s Assn. v. VRT Corp., (1998) 63 Cal.App.4th 1396. 1402.

            A preliminary injunction is issued after hearing on a noticed motion.  The complaint normally must plead injunctive relief.  CCP §526(a)(1)-(2).[5]  Preliminary injunctive relief requires the use of competent evidence to create a sufficient factual showing on the grounds for relief.  See e.g. Ancora-Citronelle Corp. v. Green, (1974) 41 Cal.App.3d 146, 150.  Injunctive relief may be granted based on a verified complaint only if it contains sufficient evidentiary, not ultimate, facts.  See CCP §527(a).  For this reason, a pleading alone rarely suffices.  Weil & Brown, California Procedure Before Trial, 9:579, 9(ll)-21 (The Rutter Group 2007).  The burden of proof is on the plaintiff as moving party.  O’Connell v. Superior Court, (2006) 141 Cal.App.4th 1452, 1481.

            A plaintiff seeking injunctive relief must show the absence of an adequate damages remedy at law.  CCP §526(4); Thayer Plymouth Center, Inc. v. Chrysler Motors, (1967) 255 Cal.App.2d 300, 307; Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist., (1992) 8 Cal.App.4th 1554, 1565.  The concept of “inadequacy of the legal remedy” or “inadequacy of damages” dates from the time of the early courts of chancery, the idea being that an injunction is an unusual or extraordinary equitable remedy which will not be granted if the remedy at law (usually damages) will adequately compensate the injured plaintiff.  Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist., (1992) 8 Cal.App.4th 1554, 1565.

            In determining whether to issue a preliminary injunction, the trial court considers two factors: (1) the reasonable probability that the plaintiff will prevail on the merits at trial (CCP §526(a)(1)), and (2) a balancing of the “irreparable 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.  CCP §526(a)(2); 14859 Moorpark Homeowner’s Assn. v. VRT Corp., (1998) 63 Cal.App.4th 1396. 1402; Pillsbury, Madison & Sutro v. Schectman, (1997) 55 Cal.App.4th 1279, 1283; Davenport v. Blue Cross of California, (1997) 52 Cal.App.4th 435, 446; Abrams v. St. Johns Hospital, (1994) 25 Cal.App.4th 628, 636.  Thus, a preliminary injunction may not issue without some showing of potential entitlement to such relief.  Doe v. Wilson, (1997) 57 Cal.App.4th 296, 304.  The decision to grant a preliminary injunction generally lies within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion.  Thornton v. Carlson, (1992) 4 Cal.App.4th 1249, 1255.

            A preliminary injunction ordinarily cannot take effect unless and until the plaintiff provides an undertaking for damages which the enjoined defendant may sustain by reason of the injunction if the court finally decides that the plaintiff was not entitled to the injunction.  See CCP §529(a); City of South San Francisco v. Cypress Lawn Cemetery Assn., (1992) 11 Cal.App.4th 916, 920.

            2. HOBR

            The HOBR (§§ 2920.5, 2023.4-.7, 2924, 2924.9-.12, 2924.15, 2924.17.20), effective January 1, 2013, was enacted “to ensure that, as part of the non-judicial foreclosure process, borrowers are considered for, and have meaningful opportunity to obtain, available loss mitigation options, if any offered by or through the borrower’s mortgage servicer, such as loan modifications or any alternatives to foreclosure.  §2923.4.  The HBOR is available only to borrowers who own and occupy their principal residence consisting of not more than four units and secured by a first trust deed.  §2924.15. 

            A lender must provide a SPOC for a borrower who requests a foreclosure alternative.  §2923.7(a).  A SPOC is an individual or team of personnel each of whom has the ability and authority to perform the responsibilities described in section 2923.7.  §2923.7(e).  The SPOC is responsible for communicating the process, coordinating receipt of all required documents, and having access to individuals with the ability to stop foreclosure proceedings when necessary.  §§ 2923.7(b)(1), (2), (5).  The SPOC is responsible for, inter alia, having access to current information and personnel sufficient to timely, accurately, and adequately inform the borrower of the current status of the foreclosure prevention alternatives.  §2923.7(b)(3).  The SPOC must also ensure that a borrower is considered for all foreclosure prevention alternatives offered by or through the mortgage servicer, if any.  §2923.7(b)(4). 

            The SPOC must remain assigned to the borrower’s account until the mortgage servicer determines that all mitigation options offered by or through it have been exhausted, or until the borrower’s account becomes current.  §2923.7(c).  In turn, a mortgage servicer must ensure that each SPOC is knowledgeable about the borrower’s situation and current status in the alternatives to foreclosure process. §2923.7(e). 

            If a borrower submits a complete application for a first lien loan modification offered by the bank or loan servicer, the lender may not record a NOD, NOS, or conduct a trustee’s sale while the application is pending.  §§ 2923.5(a)(1)(B), 2924.18(a)(1).  An application is complete when all documents required by the bank are submitted within a reasonable time frame specified by the bank.  §§ 2923.6(h), 2924.18(d); Valbuena v. Ocwen Loan Servicing, LLC, (2015) 237 Cal.App.4^th 1267, 1273.  Before proceeding with foreclosure, the lender must make a written determination that the borrower is not eligible for a loan modification, and must give the borrower at least 30 days from the written denial to appeal and provide evidence that the determination was in error.  §2923.6(d).  If there is an appeal, the lender must wait 15 days after denial of the appeal to proceed with foreclosure.  §2923.6(e)(2).  The lender is not obligated to evaluate more than one loan modification application unless there has been a material change in the borrower’s financial circumstances since the last application and the borrower documents and submits that change to the lender.  §2923.6(g).   

            The HBOR provides for injunctive relief for statutory violations when the lawsuit is filed before foreclosure (§2924.12(a)), and damages when the borrower files lawsuit after the foreclosure sale has occurred and the trustee’s deed has been recorded (§2924.12(b)).  Not every HBOR violation results in a remedy.  For large lenders, there must be a material violation of section 2923.55 (written information by large lenders before NOD), 2923.6 (loan modification or workout plan by large lenders), 2923.7 (single point of contact by large lenders), 2924.9 (post-NOD written information by large lenders), 2924.10 (written acknowledgement of loan mod application by large lenders), 2924.11 (approval of foreclosure alternative), or 2924.17 (accuracy and competence of NOD declaration).  Monterossa v. Superior Court, (2015) 237 Cal.App.4^th 743, 753.  These provisions apply only to large lenders foreclosing on 175 or more residences a year.  §2924.12(j).  Small lenders may be enjoined for violations of 2923.5, 2924.17, or 2924.18 only.  §2924.18(b).

            C. Statement of Facts

            1. Brown’s Evidence

            Brown has an ownership interest in the Property, a single-family residence with only one dwelling unit.  Brown Decl., ¶2; Brown Supp. Decl., ¶¶ 2-3.  Brown has used it as her primary residence at all relevant times.  Brown Decl., ¶2.

            On July 3, 2007, Brown took out the $477,100 Loan against the Property.  Brown Decl., ¶3.  A DOT was recorded on July 11, 2007 to that effect.  Brown Decl., ¶3, Ex. A.  In January 2013, Nationstar became the Loan’s servicer.  Brown Decl., ¶4.  This Loan is a first lien mortgage.  Brown Supp. Decl., ¶5.

            In January 2020, either Nationstar or Right Path[6] granted a forbearance on the Property, to expire on April 2021.  Brown Decl., ¶5.  In April 2021, Brown contacted Nationstar to inquire how to resume monthly payments on the Loan but she was unable to contact an agent to start payments.  Brown Decl., ¶6.

            At the same time, Brown began to apply for loss mitigation options online.  Brown Decl., ¶7.  Whenever she checked the applications’ status online, they were not being processed.  Brown Decl., ¶7. 

            On March 21, 2023, MTC on Nationstar’s behalf recorded an NOD against the Property.  Brown Decl., ¶8, Ex. B.  It listed the amount owed as $179,330.65 as of March 17, 2023.  Brown Decl., ¶8, Ex. B.  Defendants had failed to provide a written determination on the loss mitigation applications or a written explanation of the specific grounds for denial thereof, if any.  Brown Decl., ¶8. 

            The NOD included a declaration of compliance stating that Nationstar contacted Brown at least thirty days beforehand to assess her financial situation and explore options to avoid foreclosure, as required under section 2923.55(b)(2).  Brown Decl., ¶8, Ex. B.  This is false.  Brown Decl., ¶9.  No Defendant contacted Brown by telephone or in person, assessed her finances, or explored all non-foreclosure options.  Brown Decl., ¶9.  She never received a missed call or voice message from Defendants as an attempt to contact her per section 2923.55(b)(2).  Brown Decl., ¶9. 

            The failure to contact Brown per section 2923.5 before Defendants recorded the NOD also reflects the failure to appoint a SPOC per section 2923.7.  Brown Decl., ¶10.  Had there been one, it would have prevented Defendants from initiating Property foreclosure without compliance with the HBOR and other relevant statutes.  Brown Decl., ¶10. 

            On June 27, 2023, MTC on Nationstar’s behalf recorded an NOS against the Property.  Brown Decl., ¶11, Ex. C.  The NOS lists the scheduled sale date as August 3, 2023.  Brown Decl., ¶¶ 11-12, Ex. C.  The threat of the loss of Brown’s home presents an imminent threat of irreparable harm.  Brown Decl., ¶13.

            2. Nationstar’s Evidence[7]

            Right Path and Mr. Cooper are brand names for Nationstar.  Lee Decl., ¶6, Ex. E.

            a. SPOC

            Nationstar sent Brown notice that her Dedicated Loan Specialist (“SPOC”) was (1) Cosmin Mihai as of March 6, 2020, (2) Sharmequa Abcumby-Blair as of September 17, 2020, (3) Kamilla Epperson (“Epperson”) as of November 23, 2020, (4) Michael Fezza (“Fezza”) as of July 6, 2022, (5) Alexandro Carles as of October 10, 2022, (6) Fezza again as of November 30, 2022, (7) Richard Anthony as of March 30, 2023, and (8) Fezza again as of April 6, 2023.  Lee Decl., ¶5, Ex. D. 

            Each letter also provided the SPOC’s phone and fax number as well as an address.  Lee Decl., ¶5, Ex. D.  The letter asked Brown to call the SPOC at her earliest convenience to obtain help with that Loan.  Lee Decl., ¶5, Ex. D.  If the SPOC was busy, Brown could talk to any of the others, all of whom have access to her information and could also help.  Lee Decl., ¶5, Ex. D. 

            b. Efforts to Avoid Foreclosure

            In March 2014 and July 2018, Brown and Nationstar executed Loan Modification Agreements (“Modifications”).  Lee Decl., ¶3, Ex. B. 

            In April 2020, Nationstar informed Brown that it had approved her for a three-month forbearance plan.  Lee Decl., ¶4, Ex. C.  Letters from Nationstar in May, June, September and October, and December 2020 alternated between notice that the forbearance plan was set to expire soon and notice that Nationstar had extended the plan.  Lee Decl., ¶4, Ex. C.  A final letter on March 9, 2021 informed Brown that the forbearance plan would expire on April 1, 2021.  Lee Decl., ¶4, Ex. C. 

            Each forbearance letter outlined possible next steps after the end of the forbearance.  Lee Decl., ¶4, Ex. C.  The steps included further Modifications and voluntary repayment plans.  Lee Decl., ¶4, Ex. C.  Every forbearance letter after April 2020 also listed the name and number of Brown’s SPOC at the time.  Lee Decl., ¶4, Ex. C.

            The April 2020, May 2020, September 2020, and March 2021 forbearance letters also included web addresses and phone numbers for the U.S. Department of Housing and Urban Development (“HUD”) and Consumer Financial Protection Bureau.  Lee Decl., ¶4, Ex. C.  Each agency could provide a list of HUD-approved housing counseling agencies that can provide free foreclosure prevention and debt management information.  Lee Decl., ¶4, Ex. C. 

            On August 4, 2021, Mr. Cooper notified Brown about a Trial Period Plan it had previously offered to her.  Lee Decl., ¶3, Ex. B.  The Trial Period Plan required Brown to make the first payment thereunder by a certain date.  Lee Decl., ¶3, Ex. B.  Because she failed to do so, Nationstar rescinded the offered plan.  Lee Decl., ¶3, Ex. B.  The Trial Plan Notice gave her the phone number for her SPOC at the time, which was Epperson.  Lee Decl., ¶3, Ex. B. 

            On September 19, 2022, Right Path sent Brown notice by first-class mail that she must pay the full amount of the default by October 24, 2022.   Lee Decl., ¶6, Ex. E.  The debt at the time totaled $150,620.91 and included the payments that became due after default on February 1, 2020.  Lee Decl., ¶6, Ex. E.  The demand letter included the web address and telephone number to contact HUD for a list of HUD-approved counseling agencies.  Lee Decl., ¶6, Ex. E.  It also included a phone number to contact Right Path and a web address for additional information on possible options to avoid foreclosure.  Lee Decl., ¶6, Ex. E. 

            Mr. Cooper’s communication history for the Loan shows that Brown requested a payoff quote on September 23, 2022 and May 8, 2023.  Lee Decl., ¶7, Ex. F, pp. 183, 190.  These requests reflected Brown’s intent to refinance the Loan.  Lee Decl., ¶7.  Mr. Cooper mailed the payoff estimate to Brown with a September 24, 2022 payoff date.  Lee Decl., ¶7, Ex. F, p. 183.  It emailed Brown the May 9, 2023 estimate.  Lee Decl., ¶7, Ex. F, p. 190. 

            Nationstar’s contemporaneous notes show that representative Michele Del Percio (“Del Percio”) spoke with Brown via telephone at 12:04 p.m. on September 27, 2022.  Lee Decl., ¶8, Ex. G.  Del Percio noted that Brown wanted to bring the Loan current and asked for a mortgage assistance application (“MAA”) to do so.  Lee Decl., ¶8, Ex. G.  Del Percio said Brown could find one on the Nationstar website.  Lee Decl., ¶8, Ex. G.  However, because Brown wanted to refinance, Del Percio advised that it was better to either payoff or reinstate the Loan.  Lee Decl., ¶8, Ex. G.  Brown said that she understood her options and would be in touch.  Lee Decl., ¶8, Ex. G.  She also stated that she was going to request another payoff quote but did not want to pay the fees.  Lee Decl., ¶8, Ex. G.  Del Percio wrote that she explained all of Brown’s workout options to her.  Lee Decl., ¶8, Ex. G. 

            On April 4, 2023, American Pacific Mortgage (“American”) requested a payoff quote.  Lee Decl., ¶7, Ex. F, p. 188.  Although Cooper needed verification, it faxed American the estimate with a May 5, 2023 payoff date.  Lee Decl., ¶7, Ex. F, p. 188.

            c. NOD and NOS

             The NOD was recorded on March 21, 2023.  Lee Decl., ¶9, Ex. H.  A Nationstar representative signed the accompanying DOC on November 17, 2022.  Lee Decl., ¶9, Ex. H. 

            D. Analysis

            Brown applies for a preliminary injunction enjoining Defendants from foreclosing on the Property.  Defendant Nationstar opposes.

The parties labor under a misapprehension that all the claims raised in the ex parte application are at issue.  They are not.  The court expressly limited the OSC to violations of sections 2923.5 and 2923.7 (wrongly stated as section 2924.7).  The court need not consider the parties’ arguments based on Bus. & Prof. Code section 17200 or declaratory relief.  Opp. at 9-10; Reply at 3-5.

            1. Likelihood of Success

            a. Section 2923.5

            (1). Declaration of Compliance       

Section 2923.5(a) requires a lender, at least 30 days prior to a NOD, to contact or with reasonable due diligence attempt to contact a borrower to assess his or her financial situation and explore options to prevent foreclosure.  Mabry v. Superior Court, (“Mabry”) (2010) 185 Cal.App.4th 208, 214.  A mortgage servicer shall contact the borrower in person or by telephone in order to assess the borrower's financial situation and explore options for the borrower to avoid foreclosure.  §2923.5(a).  The lender’s obligation to assess the borrower’s financial state and explore options to prevent foreclosure may be satisfied by something as simple as a question: “why can’t you make your payments?”  Id. at 232.  The only remedy for a violation of section 2923.5 is to postpone the sale; there is no section 2923.5 remedy after foreclosure. Id. at 235; Stebley v. Litton Loan Servicing, (2011) 202 Cal.App.4th 522, 526.

            Section 2923.5(b) requires that a NOD contain a declaration that the mortgage servicer has contacted the borrower, tried with due diligence to contact the borrower, or that no contact was required with the borrower.  Case law holds that the requirements of section 2923.5(a) must be narrowly construed.  Mabry, supra, 185 Cal.App.4th at 232.  The question “why can’t you make your payments” is sufficient to assess a borrower’s financial situation.  Id. 

The NOD was recorded on March 21, 2023.  The NOD includes a declaration of compliance signed in November 2022 that asserts compliance with section 2923.55(b)(2).  Brown Decl., ¶8, Ex. B. 

Brown asserts that the declaration of compliance is false because no Defendant contacted Brown by telephone or in person to explore non-foreclosure options.  Brown Decl., ¶9.  She is wrong.

            Nationstar’s contemporaneous notes show that on September 27, 2022, Representative Del Percio advised Brown on where to find an MAA online.  Lee Decl., ¶8, Ex. G.  She also advised Brown that if she wanted to refinance the Loan, she should pay off or reinstate the Loan.  Lee Decl., ¶8, Ex. G.  Del Percio recorded that she explained all of Brown’s options to her.  Lee Decl., ¶8, Ex. G.  Brown said that she understood those options and would be in touch.  Lee Decl., ¶8, Ex. G.[8]

            Brown does not provide any evidence to refute the assertion that Del Percio explained her foreclosure options to her.  Nationstar’s cooperation with Brown in providing payoff quotes also shows an effort to help her explore options to avoid foreclosure.  Lee Decl., ¶7, Ex. F, p. 183.  Brown’s assertion that Nationstar did not comply with section 2023.5 is untenable.[9]

            (2). Loan Modification Application

            If a borrower has submitted a complete and pending first lien loan modification application, the mortgage servicer shall not record a NOD prior to providing to the borrower a written determination under section 2924.18(a)(1) regarding eligibility for the application.  §2923.5(a)(1)(B).  Such an application is only “complete” when a borrower has supplied the mortgage servicer with all documents that the mortgage servicer requires within the reasonable timeframes that it specifies.  §2924.18(d).

            Brown alleges that she filed several loss mitigation applications online as the forbearance expired in April 2021.  Brown Decl., ¶¶ 5, 7.  Whenever she checked the website, it showed that Nationstar had not processed them.  Brown Decl., ¶7.  Nationstar issued the NOD without written determination on the applications or an explanation of the specific grounds for their denial, if any.  Brown Decl., ¶8.

            Brown provides no documentary evidence that she in fact filed loss mitigation applications.  This also means she fails to show that such applications were complete under section 2924.18(d).  Nationstar provides evidence that Brown asked about an MAA, but Del Percio informed her that she was better off to either payoff or reinstate the Loan.  Lee Decl., ¶8, Ex. G.  Thus, there is insufficient evidence that Brown had a pending loan modification application that would prevent Nationstar from recording the NOD.

            (3). Conclusion

            Brown has failed to demonstrate a probability of success on her claim that Nationstar violated its duties under section 2923.5.  The court need not discuss Nationstar’s argument that any violations were not material.  See Opp. at 6.

            b. Section 2923.7

            Section 2923.7(a) requires that the mortgage servicer establish a SPOC for a borrower who requests a foreclosure prevention alternative.  A SPOC is an individual or team of personnel each of whom has the ability and authority to perform the responsibilities described in section 2923.7.  §2923.7(e).  That SPOC is responsible for communicating the process, coordinating receipt of all required documents, and having access to individuals with the ability to stop foreclosure proceedings when necessary.  §§ 2923.7(b)(1), (2), (5).  The SPOC must also ensure that a borrower is considered for all foreclosure prevention alternatives offered by or through the mortgage servicer, if any.  §2923.7(b)(4).  SPOCs must remain assigned to the borrower’s account until the mortgage servicer determines that all mitigation options offered by or through it have been exhausted, or until the borrower’s account becomes current.  §2923.7(c).  A mortgage servicer must ensure that each SPOC is knowledgeable about the borrower’s situation and current status in the alternatives to foreclosure process. §2923.7(e). 

            Beginning March 6, 2020, Nationstar sent Brown eight notices through which it assigned her six different SPOCs.  Lee Decl., ¶5, Ex. D.  Each letter provided the SPOC’s phone and fax number as well as an address.  Lee Decl., ¶5, Ex. D.  Brown was asked to call the SPOC at her earliest convenience to obtain help with that Loan.  Lee Decl., ¶5, Ex. D. 

            Brown’s moving papers contend that she was never provided with a SPOC who was able to assist her and provide her a meaningful opportunity to avoid foreclosure.  App. at 7-8; Brown Decl., ¶10.  She argues that the frequent changes in the identity of her SPOCs prevented them from fulfilling their responsibilities.  Reply at 3. 

            This argument ignores the fact that a SPOC can be either an individual or a team of personnel, provided that each member has the ability to perform the necessary functions.  §2923.7(e).  Although the SPOCs assigned to Brown changed, each letter from a new SPOC made it clear that he or she was there to help Brown with any issues in making her mortgage payment and that Brown could contact another Specialist if her current SPOC was busy when she wanted assistance.  Lee Decl., ¶5, Ex. D.  All Specialists had access to the same information.  Lee Decl., ¶5, Ex. D. 

            Brown also argues that, whether considered collectively or individually, the Specialists failed as SPOCs to fulfill the requirements of section 2923.7(b).  App. at 7.  She asserts that no agent contacted her about loss mitigation options before Nationstar recorded the NOD.  Id.; Brown Decl., ¶¶ 9-10.  Nationstar also failed to have an agent review her for a home retention option such as forbearance or loan modification in good faith in violation of section 2923.7(b)(4).  App. at 7-8.

            Nationstar presents evidence of compliance with section 2923.7(b).  Each new SPOC provided Brown with a letter of introduction, showing that they communicated the process and deadline by which Brown may apply for foreclosure prevention alternatives.  Id.; Lee Decl., ¶5, Ex. D.  Although these letters do not themselves list Brown’s foreclosure options, they ask Brown to contact the new SPOC to discuss them.  Lee Decl., ¶5, Ex. D. 

            Nationstar provides evidence of several alternatives to foreclosure received by Brown.  Brown and Nationstar executed Modifications in 2014 and 2018.  Lee Decl., ¶3, Ex. B.  Brown was offered a Trial Period Plan in August 2021 that would have provided further relief if she had made the required payment on time.  Lee Decl., ¶3, Ex. B.  Although Brown denies that she received notice that Nationstar offered a Trial Period Plan or that she received the August 4, 2021 notice withdrawing it, she provides no evidence to this effect.  See Reply at 1.

            The forbearance letters show that Brown did not have to make payments from April 2020 to April 2021.  Lee Decl., ¶4, Ex. C.  Brown alleges that when the forbearance expired, she could not contact anyone to resume payments.  Brown Decl., ¶6.  That she had SPOCs and later asked for help to either refinance the Loan or file an MAA indicates that she could have done so. See supra; Lee Decl., ¶¶ 7-8, Exs. F-G.  The fact that Nationstar also cooperated with Brown’s to refinance by providing the necessary payoff quotes also shows that she could have contacted Nationstar to resume payments.  Lee Decl., ¶7, Ex. F, p. 183.

            The Modifications, Trial Period Plan, forbearance, and attempts at refinancing are all foreclosure preventative alternatives.  The SPOCs coordinated the receipt of documents to ensure that the relevant applications were complete.  Opp. at 8.  The SPOCs also timely informed Brown about the status of these alternatives through the written Modifications, the Trial Plan Notice, and the forbearance letters.  Opp. at 8. 

            Brown has failed to demonstrate a probability of success on her claim that Nationstar violated section 2923.7.

            3. Balance of Hardships

            In determining whether to issue a preliminary injunction, the second factor which a trial court examines is the interim harm that 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.  Donahue Schriber Realty Group, Inc. v. Nu Creation Outreach, (2014) 232 Cal.App.4th 1171, 1177.  This factor involves consideration of the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo.  Id.

            The threat of the loss of Brown’s home presents an imminent threat of irreparable harm if the court does not enjoin the foreclosure sale.  Brown Decl., ¶13.  Nationstar does not dispute that the balance of hardships favors issuance of an injunction. 

            F. Conclusion

            As some showing of a probability of success is required even where the balance of harms tips in a plaintiff’s favor, the application for a preliminary injunction is denied.