Judge: Thomas Falls, Case: 22PSCV00454, Date: 2022-09-12 Tentative Ruling

Case Number: 22PSCV00454    Hearing Date: September 12, 2022    Dept: R

PAUL BACA vs NEWREZ, LLC (22PSCV00454)         

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Plaintiff’s MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EXPARTE APPLICATION FOR A TEMPORARY RESTRAINING ORDER TO RESTRAIN THE TRUSTEE’S SALE

Responding Party: Defendant

Tentative Ruling

Plaintiff’s MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EXPARTE APPLICATION FOR A TEMPORARY RESTRAINING ORDER TO RESTRAIN THE TRUSTEE’S SALE is DENIED.

Background

This is a foreclosure case. Plaintiff Paul Baca alleges the following against Defendant NEWREZ, LLC, d/b/a Shellpoint Mortgage Servicing, a business entity: Plaintiff purchased the Property in or around October 2015. On April 1, 2022, Plaintiff submitted a complete loan modification application to Defendant, but Defendant caused a Notice of Trustee’s Sale to be recorded against Plaintiff’s property. To date, the loan modification remains pending.

On May 13, 2022, Plaintiff filed suit for:

1.Violation of Cal. Civ. Code § 2923.6 and

2.Violation of Cal. Business & Professions Code § 17200, et seq.

On May 18, 2022, the court granted Plaintiff’s ex-parte for a TRO restraining the trustees sale.[1]

O September 2, 2022, Defendant NEWREZ, LLC D/B/A SHELLPOINT MORTGAGE SERVICING LLC filed its OPPOSITION TO PLAINTIFF'S REQUEST FOR PRELIMINARY INJUNCTION.

To date, as of Thursday, September 8, 2022 at 9:40 AM, no Reply has been received from Plaintiff.

Legal Standard

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.) The status quo has been defined to mean the last actual peaceable, uncontested status which preceded the pending controversy. (14859 Moorpark Homeowner’s Assn. v.¿VRT¿Corp.¿(1998) 63 Cal.App.4th 1396. 1402.) Preliminary injunctive relief requires the use of competent evidence to create a sufficient factual showing on the grounds for relief. (See, e.g.,¿ReadyLink¿Healthcare v. Cotton¿(2005) 126 Cal.App.4th 1006, 1016;¿Ancora-Citronelle Corp. v. Green¿(1974) 41 Cal.App.3d 146, 150) (emphasis and underline added). Injunctive relief may be granted based on a verified complaint only if it contains sufficient evidentiary, not ultimate, facts. (See Code Civ. Proc. § 527(a)) (emphasis added).[2] For this reason, a pleading alone rarely suffices. (Weil & Brown, California Procedure Before Trial, 9:579, 9(ll)-21 (The Rutter Group 2007)) (emphasis added). 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. (Code Civ. Proc. § 526(4);¿Thayer Plymouth Center, Inc. v. Chrysler Motors¿(1967) 255 Cal.App.2d 300, 307.)¿¿¿ 

The trial court considers two factors in determining whether to issue a preliminary injunction: (1) the likelihood the plaintiff will prevail on the merits of its case at trial, and

(2) the interim harm the plaintiff is likely to sustain if the injunction is denied as compared to the harm the defendant is likely to suffer if the court grants a preliminary injunction. (Code Civ. Proc. § 526(a);¿Husain v. McDonald’s Corp.¿(2012) 205 Cal.App.4th 860, 866-67.)

The balancing of harm between the parties “involves consideration of such things as the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo.” (Husain, supra, 205 Cal.App.4th at 867.)¿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 Code Civ. Proc. § 529(a); Cal. Rules of Court, rule 3.1150(f);¿City of South San Francisco v. Cypress Lawn Cemetery Assn.¿(1992) 11 Cal.App.4th 916, 920.)¿ 

Discussion

Here, Plaintiff relies on his unverified complaint and provides no evidence to support his claims. As Defendant notes, “Plaintiff asserts that he ‘submitted a complete loan modification application” on or before April 1, 2022 [citiation], but he makes no other specific allegations. This bare allegation alone is insufficient to show that a complete application was submitted such that the application of this statute is triggered.” (Opp. p. 5.) The court agrees.

Therefore, considering the gravity of a preliminary injunction and Plaintiff’s failure to meet its burden, the court denies the motion.