Judge: Maurice A. Leiter, Case: 22STCV26395, Date: 2023-04-21 Tentative Ruling

Case Number: 22STCV26395    Hearing Date: April 21, 2023    Dept: 54

Hearing Date: April 21, 2023

Department 54, Judge Maurice Leiter

Motion for Preliminary Injunction

Moving Party: Plaintiff Nicole Shepherd

Responding Party: Defendants Trinity Financial Services, LLC

T/R:    PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION IS GRANTED.

            PLAINTIFF TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

            The Court considers the moving papers and opposition.

BACKGROUND

            On August 16, 2022, Plaintiff Nicole Shepherd sued Defendants Trinity Financial Services, LLC, et al., asserting causes of action for (1) injunction; (2) declaratory relief; (3) cancellation of deed of trust; (4) fraud and deceit; and (5) negligence. In 2006, Plaintiff executed two deeds of trust in favor of lender Right-Away Mortgage. In 2009, Plaintiff received modification of the first loan. In 2013, Plaintiff again received a modification, believing both loans had been rolled into one. In 2020, Right-Away assigned the second loan to Trinity. After Plaintiff filed for chapter 13 bankruptcy, Trinity sought to foreclose on the second loan and collect 14 years of interest. Plaintiff asserts the second mortgage should have been extinguished under the Homeowner’s Affordable Modification Program (“HAMP”).

            On February 8, 2023, the Court sustained Defendant Trinity’s demurrer with leave to amend. On March 10, 2023, Plaintiff filed a first amended complaint.

ANALYSIS

In deciding whether to issue a preliminary injunction, the court looks to two factors: “(1) the likelihood that the Petitioner 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, 553-54.) The factors are interrelated, with a greater showing on one permitting a lesser showing on the other.  (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1420.)

Plaintiff moves for a preliminary injunction to stop the foreclosure sale of her home. There is no doubt Plaintiff will be irreparably harmed by the foreclosure sale. Delaying the sale will not prejudice Defendant. Whether the value of the equity in the house will rise or fall in the coming weeks and months is speculative.

The Court also finds that Plaintiff has sufficiently demonstrated a likelihood of success on the merits. Plaintiff presents evidence showing the loan owned by Trinity was not enforced for 14 years and that Plaintiff believed the loan had either been extinguished or combined with another loan. Plaintiff alleges Defendant’s conduct violated HAMP. In opposition, Defendant asserts Plaintiff cannot prevail because there is no private right of action under HAMP. Defendant filed a demurrer to the First Amended Complaint earlier this week; Plaintiff has not yet had an opportunity to respond, and the demurrer has not been heard. Even if Defendant’s argument under HAMP proves successful. Plaintiff may allege that Defendant’s conduct creates liability under other causes of action. Under these circumstances there is no valid reason for the foreclosure sale to proceed.

The balance of harms weighs significantly in Plaintiff’s favor. Having found such harm, Plaintiff’s burden on success on the merits is lower than if the balance of harms weighed against Plaintiff. Plaintiff has met this burden. The Court will advance the hearing date on Defendant’s demurrer.

Plaintiff’s motion is GRANTED. The Court will not require Plaintiff to post a bond.