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1.   1. ATTACHMENTS

1.    Jan 27^th 2021: Letter from Servicer denying MODIFICATIONS and DEFERRAL and offering REPAYMENT PLAN

2.    Feb 9^th 2021: APPEAL from Borrower against the denials.

3.    March 18^th 2021: Letter from Servicer allegedly denying the APPEAL

4.    March 29^th 2021: Borrower’s REQUEST for INFORMATION (RFI)

5.    April 22^nd  2021: Letter from Servicer - Response to RFI ignoring the questions in the RFI.

 2. 2. INTRODUCTION

This Motion requests preliminary injunctive relief stopping a foreclosure NOTICE OF DEFAULT and subsequent NOTICE OF SALE ( and if the NOTICE OF DEFAULT is already filed - that it may be rescinded).

Plaintiff has been interacting with defendants since April 2020 and has provided every document and complied with every request from defendants. 

He has made a complete application for loan Modification or Deferral.

The subject of this lawsuit is a violation of California Homeowner’s Bill of Rights, which has put the plaintiff and his 88 year old tenant at grave risk of losing their home.

Plaintiff requests that defendants comply with the law and honor the repeated statement by the defendants: “help you keep your home”.

In spite of the unresolved nature of plaintiff’s claims, the current holder of his first mortgage, defendant [Defendant 1], (“the bank”), insists on pursing nonjudicial foreclosure of the property.

The defendant [Defendant 2], the Servicer, has been notified of the probability and of the actual filing of this motion.  They were give 7 business days to respond, after receiving a copy, before filing.  ¶

3. LEGAL STANDARD FOR GRANTING PRELIMINARY INJUNCTIVE RELIEF

In the Ninth Circuit, a party seeking a preliminary injunction must meet one of two tests.

Under the first, a court may issue a preliminary injunction if it finds that:

(1) the moving party will suffer irreparable injury if injunctive relief is not granted,

(2) the moving party will probably prevail on the merits,

(3) in balancing the equities, the non-moving party will not be harmed more than the moving party is helped by the injunction, and;

(4) 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).

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.

4. ARGUMENT

A.   4.1 PLAINTIFF IS LIKELY TO PREVAIL ON THE MERITS, OR HAS RAISED SERIOUS QUESTIONS THAT WARRANT GRANTING PRELIMINARY INJUNCTIVE RELIEF

A temporary restraining order is appropriate in this case, where plaintiff’s Declaration supporting this motion 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 valid reasons why not.

INSERT the  Temporary_Restraining_Order_ARGUMENT HERE

B. 4.A. RISK OF IRREPARABLE INJURY EXISTS THAT WARRANTS A TEMPORARY RESTRAINING ORDER

Circumstances exist in this case that warrant the extraordinary relief of a temporary restraining order.

Plaintiff is entitled to a court order enforcing defendant’s compliance with California Homeowner’s Bill of Rights and a fair 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 bank is 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.

4.3B. THE BALANCE OF POTENTIAL HARMS TIPS IN FAVOR OF PLAINTIFF

 A temporary restraining order or other injunctive relief would not result in particular harm to defendants in this matter as that is considerably eased by plaintiff paying monthly principal and interest.

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 a temporary restraining order is not granted is clearly greater for the plaintiff and his tenant.

D.   C.THE PUBLIC INTEREST WEIGHS IN FAVOR OF GRANTING PRELIMINARY INJUNCTIVE RELIEF

A temporary restraining order 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.

5. CONCLUSION

Defendants have been unwilling to voluntarily cooperate with plaintiffs’ requests made in this motion and his declaration and in his Appeal to denial of MODIFICATIONS and DEFERRAL and in his REQUEST for INFORMATION.

Plaintiff has shown his entitlement to preliminary injunctive relief, as explained in this Motion and the supporting documents on file with it.

Therefore, plaintiff asks the Court for a temporary restraining order and preliminary injunction as follows:

1.    Restraining defendants [Defendant 1] and [Defendant 2], 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 the property identified in the Motion for Temporary Restraining Order and Preliminary Injunction.

2.    Ordering defendants to show cause as soon as is practicable why the temporary restraining order should not persist through the duration of this action.

Respectfully submitted,

Dated this [Date].

Plaintiff