John Victim
123 Main St.
Anytown, CA 11111
415 555 1111
JohnVictim@yhaoo.com
In Propria Persona
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF MARIN
Civil Unlimited
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JOHN VICTIM Plaintiff, vs. POINTLESS MORTGAGE TRUST 2017-4, PREDITORY BANK N.A., As Indenture Trustee; CARELESS SERVICING, INC.; DOES 1-10 Inclusive, Defendants |
Case No.: VERIFIED COMPLAINT for
DAMAGES 2. Negligence 3. Promissory Estoppel 4. Unfair business practices 5. Declaratory relief
jury trial DEMANDED |
Plaintiff, JOHN VICTIM (hereinafter, “BORROWER”), complains and pleads as follows:
THE PARTIES
1. BORROWER is, and at all times relevant was, an individual residing in the State of California, County of Marin.
2. BORROWER is informed and believes that Defendant, POINTLESS MORTGAGE TRUST 2017-4, PREDITORY BANK N.A., as Indenture Trustee (hereinafter, “LENDER”), is, and at all times relevant, was a Corporation organized and existing under the laws of the State of Delaware, with its principal place of business in Minneapolis, Minnesota.
3. BORROWER is informed and believes that Defendant, CARELESS SERVICING, INC. (hereinafter, “SERVICER”), is and at all times relevant was a Corporation organized and existing under the laws of the State of Alaska, with its principal place of business in Park City, Alaska.
4. LENDER and SERVICER may be collectively referred to as “DEFENDANTS” at times herein.
5. The true names and capacities of the defendants sued herein as Does 1 through 10 are unknown to BORROWER, but BORROWER will amend this complaint when and if the true names of said defendants become known to it. BORROWER is informed and believes, and on that basis alleges, that each of the defendants sued herein as a Doe is responsible in some manner for the events and happenings herein set forth and proximately caused the alleged injury and damages.
6. BORROWER is further informed and believes, and on that basis alleges, that at all times mentioned in this complaint, each such defendant was the agent or employee of its co-defendants, and in doing various things alleged in this complaint, was acting within the course and scope of such agency and employment and acted in such a manner to ratify the conduct of its co-defendants.
7. Any reference to “Defendant” shall mean “defendants and each of them,” to the extent named in each cause of action.
JURISDICTION
8. This Court has jurisdiction over all causes of action asserted herein, and the amount in controversy exceeds the jurisdictional minimum of this Court.
9. DEFENDANTS, and each of them, are subject to the jurisdiction of this Court by virtue of their dealings and transactions in Marin County and by having caused injuries through their acts and omissions within this County to render the exercise of jurisdiction by this Court permissible under traditional notions of fair play and substantial justice.
10. Venue is proper in this Court because the real property at issue is located in Marin County, the Contract at issue was entered into in Marin County, and a substantial portion of the events, acts, and omissions complained of herein occurred in Marin County.
GENERAL ALLEGATION
11. BORROWER is 72 years old, has a history of heart disease, has had 3 heart surgeries, and had to close his sole-proprietor business in May 2020 for fear of catching COVID and dying.
12. This loss of business income makes it impossible for Borrower to pay his mortgage, putting in jeopardy the ability of he and his 88 year-old tenant of staying in their home.
13. After 11 years of making every monthly mortgage payment and on time, - in order to qualify for Forbearance and to apply for a Loan Modification or Deferral, he stopped making payments on May 2020.
14. Eventually, after complying with every request from SERVICER, he was approved for Forbearance. The application was complete.
15. TRIAL PAYMENTS: BORROWER went through a process, requested by DEFENDANTS, to make trial payments of $1,365.38 for 3 months in 2020 October, November, December. BORROWER made those payments. Under the impression that it would progress to a LOAN MODIFICATION or DEFERRAL. It did not.
16. The application for LOAN MODIFICATION or DEFERRAL was denied on Jan 27th 2021.
17. A true and correct copy of the January 27th 2021 Letter from SERVICER denying MODIFICATIONS and DEFERRAL and offering REPAYMENT PLAN is attached hereto and incorporated by reference as Exhibit A.
18. A Repayment Plan was offered instead. BORROWER and his HUD approved counselor called the Servicer on February 4th 2021 and spoke to Avery and pointed out that this Repayment Plan, (where he’d pay 1½ times current monthly payment over 2 years and continue on with the current mortgage), was not Mitigating his Loss and was simply unaffordable.
19. APPEAL: On February 9th 2021 the borrower appealed the denial of Modifications and Deferral. The Borrower's appeal essentially constituted a detailed explanation of how a loan modification might not only make the borrower whole but the lender too (by Borrower’s recommendation that all interest, lost by the lender, to date, could be added to Borrower’s principal with his blessing). He points out that as current interest rates are around 3% perhaps borrower's 4.625% is too high.
20. A true and correct copy of the February 9th 2021 APPEAL from BORROWER against the denials is attached hereto and incorporated by reference as Exhibit B.
21. On March 18, 2021, borrower received a letter referring to an inquiry that he is supposed to have made.
Not until BORROWER called SERVICER was it disclosed that the “inquiry” was in fact the Appeal.
The letter stated:
“[SERVICER] was unable to grant approval for a modification for the reasons outlined in the enclosed Assistance Review Decision Notice.”
But the "enclosed" pages that follow (attributed to “Assistance Review Decision Notice") are simply a copy of the January 27th letter which both denied the modifications and offered the Repayment Plan.
22. No reference was made to any content of the Appeal. The Appeal was denied with the same reason that the modifications were denied -- an offer of a Repayment Plan.
23. A true and correct copy of the March 18th 2021 Letter from SERVICER rejecting the appeal is attached hereto and incorporated by reference as Exhibit C.
24. On April 22nd 2021 Borrower submitted a REQUEST FOR INFORMATION and CLARIFICATION to SERVICER making the following inquiries:
· Is a previous HAMP modification 11 years ago grounds for denial of MODIFICATION in good standing ? Is 11 years “recent” ?
· What is the REAL reason for denying TRIAL MODIFICATION and DEFERRAL ?
· Was the APPEAL really denied because of an offer of REPAYMENT PLAN ?
· Why was the APPEAL ignored ( in all appearances) and referred to as “inquiry”?.
25. A true and correct copy of March 29th 2021 REQUEST for INFORMATION & CLARIFICATION (“RFIC”) is attached hereto and incorporated by reference as Exhibit D.
26. On April 22nd 2021 (24 days later) a Response to the RFIC was sent. It simply parroted the letter of denial (January 27th 2021). Repeating the same denial of the modifications. None of the questions were mentioned, let alone answered.
27. A true and correct copy of the April 22nd 2021 Letter from SERVICER ignoring the questions in the RFIC is attached hereto and incorporated by reference as Exhibit E.
28. On May 5th 2021 BORROWER sent a further INFORMATION REQUEST making the following inquiries:
Please provide a copy of the "INVESTOR and REGULATORY RULES and GUIDELINES":
· used to disqualify TRIAL MODIFICATION and DEFERRAL
· include anything that supports why:
o this REPAYMENT PLAN is a LOSS MITIGATION option for the Borrower;
o only one LOSS MITIGATION OPTION need be offered ( if a REPAYMENT PLAN is still being presented as a LOSS MITIGATION option);
o "we were unable to approve any other home retention options" in the January 27th 2021 letter;
and any other documented reason that justified denial of MODIFICATION IN GOOD STANDING because "account has recently been modified and you are not eligible for an additional program at this time";
· that define "recent" as used in this denial;
· that define and describe the ineligibility.
29. A true and correct copy of the May 5th 2021: Borrower’s INFORMATION REQUEST (“IR”) is attached hereto and incorporated by reference as Exhibit F..
30. On May 28th 2021 a response to the May 5th INFORMATION REQUEST was sent to Borrower.
It basically ignored the questions and simply repeated the original reasons for denial of Modifications and Deferral verbatim - but with one addition – the reasons were called “specific reasons”. (See precedent, below, for how unspecific they were).
31. A true and correct copy of the May 28, 2021 letter from SERVICER is attached hereto and incorporated by reference as Exhibit G,
32. No attempt was made by SERVICER at explaining what the "INVESTOR and REGULATORY RULES and GUIDELINES" were, or how 11 years is “recent,” or what made BORROWER “ineligible,” or how a REPAYMENT PLAN can in any way mitigate BORROWER’S loss, or the ambiguity of the denial letter.
33. Notwithstanding the complete lack of a meaningful dialogue and numerous, reasonable unresolved inquiries, DEFENDANTS insist on pursing foreclosure. BORROWER demands that DEFENDANTS comply with the law and honor their repeated promise to “help you keep your home” by offering a loan modification or deferral.
FIRST CAUSE OF ACTION
Violation of CALIFORNIA HOMEOWNER BILL OF RIGHTS
including section 2923.6, subdivision (f)
(AS AGAINST ALL DEFENDANTS)
34. BORROWER repleads and incorporates by reference, as though fully set forth in this paragraph, all the allegations of this Complaint.
35. California Legislation advocates for an appeal process in the Homeowner Bill of Rights (“HBOR”).
Yet, DEFENDANTS not only failed to address any part of the Appeal but seemingly ignored that it even exists. DEFENDANTS also repeatedly failed to provide a specific and valid reason for denying a loan modification.
36. CA Civil Code section 2923.6 (f) (HBOR) states in relevant part that following the denial of a first lien loan modification application, the servicer shall send a written notice to the borrower with the specific reasons for the investor disallowance. Then surely the law demands that valid reasons must be given too?
Instead the January 27th 2021 Letter (Exhibit A) contained:
MODIFICATION IN GOOD STANDING denied because "account has recently been modified"
and Denied TRIAL MODIFICATION and DEFERRAL “because you were approved for another loss mitigation option based on investor and/or regulatory rules."
37. The reason given, in Exhibit A and by telephone, for denial of MODIFICATION IN GOOD STANDING was because eleven years ago, BORROWER got a HAMP modification.
A HAMP modification 11 years ago is not "recent" and is not a valid reason for denial.
38. The reason given, in Exhibit A and by telephone, for denial of TRIAL MODIFICATION and DEFERRAL was because BORROWER had been offered a REPAYMENT PLAN ( in the same Jan 27th letter). This is not a valid reason.
39. Offering one option (REPAYMENT PLAN) is not a valid reason for not offering other options. ( TRIAL MODIFICATION and DEFERRAL)
40. The conclusion is that LENDER, merely by offering a REPAYMENT PLAN option, obviates their requirement to offer 2 other options. ( TRIAL MODIFICATION or DEFERRAL).
41. In addition, Exhibit A at ¶ 4 states: “Because we were unable to approve any other home retention options, a Repayment Plan is being offered” which ambiguously contradicts the actual reason given for denial of the TRIAL MODIFICATION and DEFERRAL
If the actual reason were true then this should read as the inverse “Because a Repayment Plan is being offered we are not offering two other home retention options” !
42. These are all violations of the letter of the HBOR and the spirit and purpose of the legislation.
See, Potocki v. Wells Fargo Bank, (2019) 38 Cal. App. 5th 566. (the servicer’s explanation that it “do[es] not have the contractual authority to modify [the] loan because of limitations in [its] servicing agreement” was not sufficiently detailed, and that without knowing the actual reason for denial, it could not be said for certain that the failure to provide “specific reasons for the investor disallowance” as required under section 2923.6(f) was not material. The appellate court concluded that: (1) the statement was ambiguous and did not suffice as an explanation – at least for the purposes of a demurrer; (2) The explanation appears to communicate little more than the modification was denied because” the investor did not want to approve it.” (3) The letter generally denying the modification was not compliant with the law.)
43. Although the servicer argued that the purported violation was not material, as is required for a borrower to bring a claim for injunctive relief under section 2923.6 when a deed upon sale has not yet been recorded, the appellate court disagreed, reasoning that it could not determine whether the failure to provide “reasons for the disallowance” was not material without knowing the investor’s actual reason for denying the HAMP modification.
Both: "do[es] not have the contractual authority to modify [the] loan because of limitations in [its] servicing agreement”
and "because you were approved for another loss mitigation option based on investor and/or regulatory rules."
are ambiguous, not sufficiently detailed, and give no actual or valid reason for denial and are not compliant with the law.
44. DEFENDANTS could be liable for extensive damages in a Wrongful Foreclosure suit - should BORROWER’s property be sold in foreclosure. Id.
45. The March 18 2021, letter from SERVICER (Exhibit C) states:
“CARELESS Services was unable to grant approval for a modification for the reasons outlined in the enclosed Assistance Review Decision Notice".
However, the "enclosed" pages that follow ( attributed to “Assistance Review Decision Notice" ) are simply a copy of the January 27th letter which offered the REPAYMENT PLAN .
46. Here is how the alleged APPEAL REJECTION letter, Mar 18 2021, starts:
"[SERVICER] received your inquiry on February 9th 2021. In your inquiry you raised questions regarding: Loss Mitigation. We have completed a full review of your inquiry and the account. Our response is below . . . [SERVICER] reviewed you for all available loss mitigation options. Unfortunately, [SERVICER] was unable to grant approval for a modification for the reasons outlined in the enclosed Assistance Review Decision Notice.”
47. The defendants, using a January 27th letter, which offered a REPAYMENT PLAN, as "Assistance Review Decision Notice" and as reason for being 'unable to grant approval' of the Appeal -- is invalid.
The defendants cannot use the offer of a REPAYMENT PLAN to completely ignore modification and deferral. All that was asked for in the Appeal (against the sole offer of a REPAYMENT PLAN) was a request for modification.
48. There is no reference to the Appeal in the March 18th APPEAL REJECTION letter. The only word in the letter that can be attributed to “appeal” is "inquiry".
49. The Borrower’s Appeal, requesting reconsideration of a MODIFICATION, (instead of REPAYMENT PLAN), was denied with no reference made to what was in the appeal. In fact the appeal itself was never mentioned.
50. In fact, DEFENDANTS are specifically offering – as reason for denying the “inquiry” -- the offer of a REPAYMENT PLAN ! This is invalid. This is the same reason for denying the TRIAL MODIFICATION and DEFERRAL. It is invalid and makes no sense.
51. CA Civil Code section 2924.12 states that after a trustee’s deed upon sale has been recorded, a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall be liable to a borrower for actual economic damages pursuant to Section 3281, resulting from a material violation of Section 2923.55, 2923.6, 2923.7, 2924.9, 2924.10, 2924.11, or 2924.17 by that mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent where the violation was not corrected and remedied prior to the recordation of the trustee’s deed upon sale.
52. If the court finds that the material violation was intentional or reckless, or resulted from willful misconduct by a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent, the court may award the borrower the greater of treble actual damages or statutory damages of fifty thousand dollars ($50,000).
53. DEFENDANTS‘ violations are extensive. BORROWER seeks fair and legal consideration of a loan modification and deferral and damages according to proof at trial.
SECOND CAUSE OF ACTION
NEGLIGENCE
(AS AGAINST ALL DEFENDANTS)
54. BORROWER repleads and incorporates by reference, as though fully set forth in this paragraph, all the allegations of this Complaint.
55. To state a cause of action for negligence, a plaintiff must allege:
· the defendant owed the plaintiff a duty of care,
· the defendant breached that duty, and
· the breach proximately caused the plaintiff's damages or injuries.’ ”
56. Lenders and Servicers owe a duty of care to borrowers in connection with the renegotiation of a loan.
See Rossetta v. CitiMortgage, Inc., (2017) 18 Cal. App. 5th 628.
57. Complying with HBOR accordingly imposes a Duty of Care.
In particular the HBOR requires "duty of care" for:
· "specific reasons for the investor disallowance" which is demanded and laid out in detail in the HBOR; and
· The required process of APPEAL.
This lack of care by defendants is negligence and is not compliant with the law.
58. As a proximate result of DEFENDANT’s negligence, BORROWER has been damaged in an amount to be proven at trial
THIRD CAUSE OF ACTION
Promissory Estoppel
(AS TO ALL DEFENDANTS)
59. BORROWER repleads and incorporates by reference, as though fully set forth in this paragraph, all the allegations of this Complaint.
60. For the purposes of this CAUSE of ACTION, it is necessary to define LOSS MITIGATION:
In the case of a LOAN MODIFICATION, Loss Mitigation is reduction of interest rate giving lower monthly payments.
For a DEFERRAL it is " forgiveness " of missing payments to defer them to the end of a re-amortized loan.
In both cases the Borrower's lost income is mitigated ( made less severe, serious, or painful ).
61. Promissory Estoppel is viable where all of the following required facts exist:
· a clear and unambiguous promise
· reasonable and foreseeable reliance by the party to whom the promise was made
· substantial detriment or injury, caused by the reliance on the promise
· damages measured by the extent of the obligation assumed and not performed
62. DEFENDANTS repeatedly made unambiguous and clear promises to BORROWER to "help the borrower keep his home” via LOSS MITIGATION.
63. In reliance on DEFENDANTS’ repeated promises, BORROWER duly went through the process demanded by DEFENDANTS, and made trial payments of $1,365.38 for 3 months in 2020 October, November, December. BORROWER made those payments in reliance on DEFENDANTS’ repeated promise to “help the borrower keep his home.”
64. BORROWER was led to believe by DEFENDANTS that the “trial payments” would progress to a LOAN MODIFICATION and DEFERRAL. It did not.
65. Instead of offering reasonable LOAN MODIFICATION and DEFERRAL as was insinuated by DEFENDANTS, they offered BORROWER a REPAYMENT PLAN that requires one and one half times the monthly payment over 24 months and at the end continue with the same monthly payment at the same high interest rate, 4.625%, -- NOTHING is mitigated. There is no lessening of the severity or seriousness of BORROWER’s lost income. Nothing has been done to "Help the Borrower stay in his home" as promised in many correspondences and on the telephone between BORROWER and DEFENDANTS.
66. The offer of this REPAYMENT PLAN, of 1½ times the current monthly payment, over 2 years , is a philosophy that if the borrower cannot pay $X then offer him $X+$Y as a solution. ! That is not "helping him stay in his home" and, in fact, will result in BORROWER’s homelessness following a catastrophic pandemic.
67. DEFENDANTS promised to help BORROWER stay in his home via LOSS MITIGATION. BORROWER reasonably relied on the repeated promises of DEFENDANTS to his detriment and now faces homelessness.
68. DEFENDANTS must be estopped from denying a fair and legal consideration of LOAN MODIFICATION and DEFERRAL.
FOURTH CAUSE OF ACTION
Unfair business practices
(AS AGAINST ALL DEFENDANTS)
69. BORROWER repleads and incorporates by reference, as though fully set forth in this paragraph, all the allegations of this Complaint.
70. California's unfair competition law (“UCL”) codified in Business and Professions Code section 17200 et seq., focuses on the defendant's conduct, rather than the plaintiff's damages, in service of the statute's larger purpose of protecting the general public against unscrupulous business practices. Unfair competition means any unlawful, unfair, or fraudulent business practice and unfair, deceptive, untrue, or misleading advertising. Id.
71. Comparable allegations and unfair business practices are complained of in:
California Department of Business Oversight Vs Ocwen Loan Servicing "…failing to provide borrowers all the required information, and wrongly informing borrowers, in loss mitigation denial notices,…"
72. BORROWER has been injured as a result of DEFENDANTS’ unlawful and unfair business practices and deceptive advertising.
73. BORROWER has suffered, and continues to suffer, harm due to DEFENDANTS’ conduct described above.
74. BORROWER’s injury is evidenced by the fact that BORROWER faces homelessness based on DEFENDANT’s unlawful and unfair business practices in failing to provide valid reasons for refusing LOAN MODIFICATION and DEFERRAL and for inducing BORROWER’s reliance on the false promise of keeping BORROWER in his home so that BORROWER paid over $4,000 in “trial payments” under the false pretense that BORROWER would become eligible for LOAN MODIFICATION and DEFERRAL.
75. As a result of DEFENDANTS’ unlawful and unfair business practices, BORROWER is entitled to and does seek restitution to BORROWER of monies acquired by DEFENDANTS’ unfair acts described herein.
76. BORROWER further seeks any and all other appropriate relief provided under Business & Professions Code sections 17202 through 17204.
FIFTH CAUSE OF ACTION
Declaratory relief
(AS AGAINST ALL DEFENDANTS)
77. BORROWER repleads and incorporates by reference, as though fully set forth in this paragraph, all the allegations of this Complaint.
78. Declaratory Relief is available to resolve an actual controversy about a party's rights and obligations under a deed or contract before there has been any breach of the obligation in respect to which said declaration is sought.
(Code Civ. Proc., § 1060; Pacific States Corp. v. Pan–American Bank (1931) 213 Cal. 58, 64–65.)
( Oldham v. Moodie, 94 Cal.App. 88, 89 [ 270 P. 688].
79. In other words, so long as there is an actual controversy, declaratory relief may be warranted even if there has been no breach, prejudice, or harm.
80. Under the provisions of the [declaratory Judgment] Act, a declaratory judgment action may be brought to establish rights once a conflict has arisen, or a party may request declaratory relief as a prophylactic measure before a breach occurs.” (§ 1062.3.)
(Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 898.)
81. BORROWER is entitled to a court order enforcing defendant’s compliance with California Homeowner’s Bill of Rights and a fair and legal consideration for a loan MODIFICATION or DEFERRAL and enjoining defendants from foreclosing and allowing him to be fairly and legally considered for a permanent modification plan and keep his home.
82. However, if the defendants are allowed to go forward with the foreclosure now, they will be moving the plaintiff closer to losing his home and shelter (suffering irreparable injury).
Significant economic damages would also result, in the form of relocation costs. Eviction of the 72 year old plaintiff and his 88 year old tenant from their shelter will cause them substantial emotional trauma, life threatening health risk and difficulty and will disrupt the security they have built in their home and neighborhood. Moving plaintiff ( who has heart disease and has had 3 heart surgeries) away from the security of being within 4 miles of a major hospital.
83. Plaintiff asks the Court for declaratory relief as follows:
· Restraining the Lender and Servicer, (defendants), their agents, employees, and any other entities under their control, from conducting a NOTICE OF DEFAULT, NOTICE OF SALE and TRUSTEE’S SALE of the plaintiff’s home, or otherwise attempting to dispossess the plaintiff of his property. (And if the NOTICE OF DEFAULT or NOTICE OF SALE have already been filed that they be rescinded).
· Ordering defendants to show cause as soon as is practicable why this restraint should not persist.
· Remedy the violations that are complained of herein.
SIXTH CAUSE OF ACTION
PRELIMINARY INJUNCTION
(AS AGAINST ALL DEFENDANTS)
84. BORROWER repleads and incorporates by reference, as though fully set forth in this paragraph, all the allegations of this Complaint.
85. CA CIVIL CODE: SEC. 13, TITLE 19. COVID-19 Small Landlord and Homeowner Relief Act,
CHAPTER 2. Mortgages,
3273.11.
(a) A mortgage servicer shall comply with applicable federal guidance regarding Borrower options following a COVID-19 related forbearance.
(c) With respect to a nonfederally backed loan, any mortgage servicer, mortgagee, or beneficiary of the deed of trust, or authorized agent thereof, who, regarding Borrower options following a COVID-19 related forbearance, reviews a customer for a solution that is consistent with the guidance to servicers, mortgagees, or beneficiaries provided by
• the Federal National Mortgage Association (Fannie Mae),
• the Federal Home Loan Mortgage Corporation (Freddie Mac),
• the Federal Housing Administration of the US Department of Housing and Urban Development,
• the US Department of Veterans Affairs, or
• the Rural Development division of the US Department of Agriculture,
including any amendments, updates or revisions to such guidance, shall be deemed to be in compliance with this section.
3273.15.
(a) A borrower who is harmed by a material violation of this title may bring an action to obtain injunctive relief, damages, restitution, and any other remedy to redress the violation.
(b) A court may award a prevailing borrower reasonable attorney’s fees and costs in any action based on any violation of this title in which injunctive relief against a sale, including a temporary restraining order, is granted. A court may award a prevailing borrower reasonable attorney’s fees and costs in an action for a violation of this article in which relief is granted but injunctive relief against a sale is not granted.
When the Federal Organizations, ( above ), are routinely offering their customers COVID related Loan Modifications and Deferrals, it is deemed that Defendants are NOT in compliance with this SECTION 13 of California Law.
86. LEGAL STANDARD FOR GRANTING PRELIMINARY INJUNCTIVE RELIEF
In the Ninth Circuit, a party seeking a preliminary injunction must meet one of two tests.
1. Under the first, a court may issue a preliminary injunction if it finds that:
a. the moving party will probably prevail on the merits,
b. the moving party will suffer irreparable injury if injunctive relief is not granted,
c. in balancing the equities, the non-moving party will not be harmed more than the moving party is helped by the injunction, and;
d. granting the injunction is in the public interest.
National Wildlife Federation, et al. v. Tom Coston, et al., 773 F.2d 1513, 1517 (9th Cir. 1985);
Stanley v. University of Southern California, et al., 13 F.3d 1313, 1319 (9th Cir. 1994).
2. Alternatively, a court may issue a preliminary injunction if the moving party demonstrates either a combination of probable success on the merits and the possibility of irreparable injury, or that serious questions are raised and the balance of hardships tips sharply in the movant’s favor. Under this last part of the alternative test, even if the balance of hardships tips decidedly in favor of the moving party, it must be shown at an irreducible minimum that there is a fair chance of success on the merits. Id.
87. PLAINTIFF IS LIKELY TO PREVAIL ON THE MERITS, OR HAS RAISED SERIOUS QUESTIONS THAT WARRANT GRANTING PRELIMINARY INJUNCTIVE RELIEF
Injunctive relief is appropriate in this case, where plaintiff’s complaint supports his prima facie case that he has a right to valid and “specific reasons for the investor disallowance” of a LOAN MODIFICATION and DEFERRAL or reasons why not and a fair process of Appeal.
88. RISK OF IRREPARABLE INJURY EXISTS THAT WARRANT INJUNCTIVE RELIEF
Circumstances exist in this case that warrant injunctive relief.
Plaintiff is entitled to a court order enforcing defendant’s compliance with California Homeowner’s Bill of Rights and a fair and legal consideration for a loan MODIFICATION or DEFERRAL and enjoining defendants from foreclosing and allowing him to work out a permanent modification plan and keep his home.
However, if the defendants are allowed to go forward with the foreclosure now, the plaintiff will suffer the irreparable injury of losing his home and shelter.
Significant economic damages would also result, in the form of relocation costs. Eviction of the 72 year old plaintiff and his 88 year old tenant from their shelter will cause them substantial emotional trauma, life threatening health risk and difficulty and will disrupt the security they have built in their home and neighborhood.
89. THE BALANCE OF POTENTIAL HARMS TIPS IN FAVOR OF PLAINTIFF
Plaintiff initiated this lawsuit in order to save his home, and thus has an interest in preserving the property. That overlaps with the defendants’ same interest.
Value of the home exceeds the principal so it is not in Plaintiff’s financial or other interests to destroy or impair the property in any way.
The risk of harm if injunctive relief is not granted is clearly greater for the plaintiff and his tenant.
90. THE PUBLIC INTEREST WEIGHS IN FAVOR OF GRANTING INJUNCTIVE RELIEF
Injunctive relief is within the public interest in this matter. The state of California has a clear interest in protecting citizens from being dispossessed of their homes in violation of California law, which is evident from the language of the California Homeowner’s Bill of Rights and the cases interpreting those statutes.
The Truth in Lending Act, also, and its consumer-protective procedures strongly indicate the government’s concern for promoting homeownership and deterring unfair lending practices that lead to the loss of homes.
91. CONCLUSION
Defendants have been unwilling to voluntarily cooperate with plaintiffs’ requests made in this complaint and his Appeal to denial of MODIFICATIONS and DEFERRAL and in his REQUESTS for INFORMATION.
Plaintiff has shown his entitlement to preliminary injunctive relief, as explained in this complaint and the supporting documents on file with it.
PRAYER FOR RELIEF
WHEREFORE, BORROWER respectfully prays for judgment against DEFENDANTS as follows and that this Court grant the following relief:
1. For an Order requiring defendants to show cause, why they should not be enjoined as set forth below, during the pendency of the action;
2. For compensatory damages, according to proof at trial;
3. For consequential damages, according to proof at trial;
4. For special damages, according to proof at trial;
5. For general and statutory damages for all injuries resulting from the causes of action set forth herein according to proof at trial;
6. For punitive and/or exemplary damages in an amount sufficient to punish defendants' wrongful conduct and deter future misconduct;
7. For pre- and post-judgment interest at the maximum rate provided by law;
8. For costs of suit;
9. For declaratory relief concerning the relative rights, responsibilities, obligations and interest as to each of the parties hereto with respective to the subject real estate; and,
10. For an injunction barring the defendants from filing a NOTICE OF DEFAULT, NOTICE OF SALE and TRUSTEE’S SALE of the plaintiff’s home at 123 Main St., Anytown, CA 11111;
11. For Court ordered imposition of a legal consideration of loan modification and/or deferral of BORROWER’s loan to LENDER; and
12. For such other and further relief as the Court may deem just and proper.
DATED:__________ Respectfully submitted,
|
John Victim, Plaintiff/Borrower, In pro per |
VERIFICATION
I, JOHN VICTIM, Plaintiff in the above-entitled action, declare that I have read the foregoing Complaint and know the contents thereof, and the same is true of my own knowledge, except as to those matters which are therein stated upon information or belief, and as to those matters, I believe them to be true.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Dated: _______________________________
JOHN VICTIM, Plaintiff