Judge: Virginia Keeny, Case: 22VECV01116, Date: 2022-08-31 Tentative Ruling

Case Number: 22VECV01116    Hearing Date: August 31, 2022    Dept: W

Stratos mayas  v. specialized loan servicing, Inc.

motion for preliminary injunction

Date of Hearing:        August 31, 2022                                            Trial Date:       Not set

Department:              W                                                        Case No.:        22VECV01116

BACKGROUND

On August 4, 2022,  Plaintiff Stratos Mayas filed the complaint in this action against  Defendant Specialized Loan Servicing, Inc., seeking injunctive relief, declaratory relief and damages against defendant based on alleged violations of the Homeowners’ Bill of Rights.  On August 9, 2022, plaintiff filed an ex parte application for a temporary restraining order, which was granted on August 10, 2022, and the matter set for hearing on a preliminary injunction on August 31, 2022. 

TENTATIVE Ruling

Plaintiffs’ Motion for Preliminary Injunction is GRANTED.

DISCUSSION

Plaintiff moves this court for an order enjoining the foreclosure sale on their home, currently set for September 8, 2022. 

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.) 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.)  

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. (CCP §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.)

As an initial matter, the court notes there are several issues with service of the operative pleadings in this case.  Although there is a declaration attesting that notice of the initial ex parte application was given by email to defendant Specialized Loan Servicing, LLC, there was no proof of service to establish that the ex parte application itself was ever  served on defendant.  The Order issued by Judge Huey Cotton, granting the Temporary Restraining Order and setting an OSC re Preliminary  Injunction for August 31, 2022, also does not appear to have been served on defendant.   There is a proof of service establishing that the complaint, summons and civil assignment sheet was personally served on the agent for service of process but not until August 17, 2022, a full week after the TRO was issued.  The Temporary Restraining order and the motion for preliminary injunction were not included in the package that was allegedly personally served on the Agent for Service of Process in Shelbourne, Vermont.  Also adding to the court’s concern is the fact that the proof of personal service was signed by a Richard Murphy, who gives his address as Petaluma, CA.  While Mr. Murphy could have travelled across the country or been retained in Vermont to perform the work by an entity operating out of Petaluma, the proof of service raises some questions in the court’s mind. The motion for preliminary injunction with the hearing date of August 31, 2022, was mailed to the agent in Vermont on August 11, 2022.  The fact that plaintiff’s counsel also submitted a proof of service stating under oath that she had served an opposition to defendant’s demurrer on August 11 by mail compounds the confusion, as there is no demurrer on file, nor is it likely that a demurrer was served on plaintiff given that the complaint was not served until August 17.  Counsel will need to adequately explain at the hearing why the TRO order was never served and how notice has actually been given in this case.

Turning to the merits,  the court finds that plaintiff has adequately established that they will suffer irreparable harm if their home is sold at a foreclosure sale on September 8, 2022.  Any piece of real property, but particularly a residential property, is unique and its full value cannot be adequately compensated through an award of damages.  Given that there is no written opposition, the court also finds that plaintiff has met their burden in establishing a likelihood of prevailing on the merits of this case.  Specifically, plaintiff has presented sworn testimony of the following: 1) plaintiff submitted a complete loan modification application to defendant; 2) defendant has not issued a decision on the application; 3) Civil Code Section 2923.6 prohibits a lender from recording a notice of trustee’s sale when an application is pending;  and 4) the lender has recorded a notice of default and trustee’s sale while the application is still pending.   This evidence is sufficient to support the issuance of a preliminary injunction. 

Accordingly, Plaintiff’s Motion for Preliminary Injunction is GRANTED.