Judge: Robert C. Longstreth, Case: 37-2023-00049766-CU-FR-CTL, Date: 2023-12-07 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 06, 2023

12/07/2023  03:30:00 PM  C-65 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert Longstreth

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Civil - Unlimited  Fraud Motion Hearing (Civil) 37-2023-00049766-CU-FR-CTL DELGADILLO VS AURORA LOAN SERVICES LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

AMENDED TENTATIVE RULING Plaintiff's Motion for Preliminary Injunction (ROA 11) is DENIED.

Plaintiff seeks an order enjoining the foreclosure of her home in Chula Vista.

'In deciding whether to issue a preliminary injunction, a court must weigh two 'interrelated' factors: (1) the likelihood that the moving party will ultimately prevail on the merits and (2) the relative interim harm to the parties from issuance or nonissuance of the injunction.' (Butt v. State of California (1992) 4 Cal.4th 668, 677-78.) 'The trial court's determination must be guided by a 'mix' of the potential-merit and interim-harm factors; the greater the plaintiff's showing on one, the less must be shown on the other to support an injunction.' (Id. at p. 678.) Plaintiff asserts she will suffer irreparable harm unless an injunction is issued because her home is about to be foreclosed on. The potential loss of one's home is a serious harm, and Plaintiff also states her family's welfare would be at risk. (Delgadillo Decl. at ¶ 5.) However, Plaintiff has not offered evidence a foreclosure is about to occur. Plaintiff asserts in her moving papers that a foreclosure could have occurred as soon as November 23, 2023, but she provided no factual basis for this assertion. To the contrary, Defendant Real Time Resolutions, Inc. ('RTR') has provided evidence that although a notice of default has been recorded on the property since August 2023, thus far no sale date has been scheduled. (Trakhtenbroit Decl. ¶¶ 15-16.) Even assuming Plaintiff had established a foreclosure was imminent, she has not sufficiently established a likelihood of prevailing on any of her causes of action.

Plaintiff first asserts Defendants have violated the Real Estate Settlement Procedures Act ('RESPA').

Specifically, Plaintiff asserts Defendant Solace Financial LLC sent her a defective notice of transfer of her 2007 Second Mortgage from 'Aurora' to Solace. Plaintiff contends the February 17, 2011 notice of transfer was defective because it failed to provide contact information for the transferor (Aurora). (12 U.S.C. § 2605(b)(3)(C).) Plaintiff did not provide evidence of the transfer notice. Even if Plaintiff had provided such evidence, the remedy is damages. (12 U.S.C. § 2605(f).) Plaintiff asserts Defendants have violated the Unfair Competition Law ('UCL'), Business and Professions Code section 17200 et seq. However, Plaintiff's allegations stem from facts that occurred at the inception of the loans many years ago. Accordingly, this cause of action appears to be time-barred.

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3054854 CASE NUMBER: CASE TITLE:  DELGADILLO VS AURORA LOAN SERVICES LLC [IMAGED]  37-2023-00049766-CU-FR-CTL (Bus. & Prof. Code § 17208.) Moreover, Plaintiff has not provided sufficient evidence to support her fraud claim. Given that her UCL claim is based on allegations of fraudulent business practices stemming from the same facts, this is an additional reason why Plaintiff has not shown a likelihood of prevailing in her UCL claim. Plaintiff asserts in her declaration that Defendant First Magnus Financial Corporation ('First Magnus') made affirmative misrepresentations to her and her then-husband at the time they entered into the loans, which 'included that the 2007 Mortgages were in fact only one loan, which only required one monthly payment.' (Delgadillo Decl. at ¶ 6.) However, Plaintiff does not provide specific facts of the alleged fraud (e.g., the name of any representative from First Magnus who made the alleged misrepresentations, when during the process they were made, and so forth.) She also does not provide any facts suggesting that any reliance on these representations was reasonable, since it appears that even a cursory review of the loan documents themselves would have revealed the true facts even if misrepresentations were made at the time the Second Mortgage was entered into 2007. For much the same reason, Plaintiff does not provide any facts explaining why the alleged fraud was not discovered sooner; thus, Plaintiff's fraud claim appears to be time-barred as well. (Code Civ. Proc. § 337(a).) In general, Plaintiff appears to confuse the standard required to state a cause of action that survives a demurrer with whether she has shown a likelihood of success on the merits.

Plaintiff also pleads a cause of action for rescission. The court notes this is a remedy, not an independent cause of action. Rescission is available when a party's consent to the contract was obtained through fraud. (Civ. Code § 1689(b)(1).) Because Plaintiff has not provided sufficient evidence of her fraud claim, she has not shown grounds for rescission of the loans. As RTR points out, Plaintiff also has not demonstrated she restored the proceeds of her Second Mortgage to the lender.

Finally, the Court notes that Plaintiff provides no authority to support her argument that a co-borrower is not a necessary party to the action. The Court believes that whether Plaintiff has filed a valid complaint underlying her request for preliminary relief is relevant to the likelihood that she will prevail in this action.

The court concludes Plaintiff has not sufficiently demonstrated a likelihood of prevailing on the merits.

Once confirmed, this ruling shall be the final ruling of the court and no further written order is required.

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