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You should know that an attorney says:

1.  this should be filed after the NOTICE of SALE
2. The REPAYMENT PLAN is a valid Loss Mitigation
3. The TRO should be accompanied by a LAWSUIT ( I couldn't get the lawyer to describe the lawsuit) but  I have read that the TRO can proceed a Lawsuit giving time to create the Lawsuit.  There are Lawsuit CAUSE of ACTIONs in here
4. and the TRO will not prevail

There is plenty of argument here why I think 2. is wrong. When there is an 8 week delay in processing submissions -- I think 1. is wrong

LOSS MITIGATION For the purposes of this argument, 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 ).
But in this case, here, where the REPAYMENT PLAN requires 1.5 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 the Borrower's lost income.  In fact the more accurate description would be "disregard of the Borrower's need, solely in favor of the Lender's desire".

1. CA Civil Code 2923.6 (f) (California Homeowner’s Bill of Rights):-

Following the denial of a first lien loan modification application, the mortgage servicer shall send a written notice to the borrower identifying the reasons for denial, including the following:

1. The amount of time from the date of the denial letter in which the borrower may request an appeal of the denial of the first lien loan modification and instructions regarding how to appeal the denial.
2. If the denial was based on investor disallowance, the specific reasons for the investor disallowance.

2.  2923.6 says if investor disallowance is enacted, then specific reasons for the investor disallowance must be given. Then surely the law demands that valid reasons must be given too?

Instead the letter of denial(attached), January 27^th 2021, 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."

3.  The reason given, in the Jan 27^th letter and by telephone, for denial of MODIFICATION IN GOOD STANDING was because eleven years ago the Borrower got a HAMP modification. A HAMP modification 11 years ago is not "recent" and is not a valid reason for denial.

4. The reason given, in the Jan 27^th letter and by telephone, for denial of TRIAL MODIFICATION and DEFERRAL was because the Borrower had been offered a REPAYMENT PLAN ( in the same Jan 27^th letter). This is not a valid reason.

Offering one option (REPAYMENT PLAN)  is not a valid reason for not offering other options. ( TRIAL MODIFICATION and DEFERRAL)

The conclusion is that the lender merely by offering a REPAYMENT PLAN option obviates their requirement to offer 2 other options. ( TRIAL MODIFICATION or DEFERRAL).

5. In addition the Jan 27^th letter ( 4^th para) states: “Because we were unable to approve any other home retention options, a Repayment Plan is being offered” which 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” !  

And if the former reason were true then the denial is also in error and in violation of CA Homeowner's Bill of Rights  where no reason has been given for being "unable to approve any other home retention options".

6. APPEAL the denials of Modifications and Deferral, February 9th 2021 (attached)

The Borrower's appeal essentially constitutes 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). 

The appeal points out that as current interest rates are around 3% perhaps borrower's 4.625% is too high.

The Borrower is 72 years old – and for fear of possible death from contracting the virus -  the Borrower had to close his small business (of which the Borrower was Sole Proprietor).

The COVID loss of his business income of $7,846/yr jeopardized his ability to pay $2,650 monthly going forward. (this business income gave the Borrower the ability to pay the mortgage, just, over the last 10 years - along with SocSec + rent income)

All the Borrower was asking for, in the APPEAL, was a monthly reduction of $293 going forward. So that after a few years, the Borrower will be able to increase the rent of his 88 year-old tenant (who occupies half of his divided home) which would compensate enough for the loss of business income. ( the Borrower has never increased rent beyond CPI increase).

It would otherwise be very difficult to pay the REPAYMENT PLAN’s $3,831.09 per month over 2 years and continue on with the current mortgage+escrow of $2,651. It’s simply unaffordable.

7. APPEAL REJECTION, Mar 18 2021, letter from Servicer

The conclusion, ( in 4., above), is reinforced when the Mar 18 2021, APPEAL REJECTION(attached) states:

"<Servicer> was unable to grant approval for a modification for the reasons outlined in the enclosed Assistance Review Decision Notice".

The "enclosed" pages that follow ( attributed to “Assistance Review Decision Notice" ) are simply a copy of the Jan 27th letter which offered the REPAYMENT PLAN .

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 has completed a full review of your inquiry and the account. Our response is below.

 Loss Mitigation

In your inquiry you requested loss mitigation assistance.

An Assistance Review Application was initiated on January 5, 2021.

We received a complete application and reviewed your account.

<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.”

The defendants, using a Jan 27th letter, which offered a REPAYMENT PLAN,  as "Assistance Review Decision Notice" and 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.

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".

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.

And the Servicer and Lender 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.

8. California Homeowner’s Bill of Rights – spirit of the law

So what is the point of Government Legislation advocating an APPEAL PROCESS when the lender -- not only need not address any part of the Appeal but can in fact ignore that it even exists?

The offer of a REPAYMENT PLAN of $1,200 more than 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".

The lender has initially and repeatedly said they want to "help the borrower keep his home" but has done nothing to help the borrower keep his home.

The Lender has ignored California Homeowner’s Bill of Rights (“HBOR”) Civil Code 2923.6,f,1  which prescribes the process for an Appeal of a Modification and Deferral denial.

9. California Homeowner’s Bill of Rights -- the letter of the law

Defendants materially violated California HBOR, Civil Code 2923.6,f,2 ( see 1., above) and CFR§1024.41(d) – where:

1.  No valid reason was given for denial of MODIFICATION IN GOOD STANDING

2. No “specific reasons” were given for the “investor disallowance”  (Denial of TRIAL MODIFICATION and DEFERRAL by only offering an option of REPAYMENT PLAN)

3. The required process of APPEAL was ignored

4. The REQUEST FOR INFORMATION was ignored.

10. It would be hard, not only on the Borrower but his 88 year-old tenant (of 10 years) to lose their home.

Although the value of his home exceeds the principle it is imperative for the Borrower to live close to a major hospital. There is one 4 miles away. The Borrower has had 2 heart attacks and 3 surgeries ( one double bypass and two stent insertions).

11 . The Borrower started paying monthly principal and interest, after the March 18^th letter.

12. The Borrower went through a process, requested by defendants, to make trial payments of $1,365.38 for 3 months in 2020 October, November, December. The Borrower made those payments. But prior to doing that the Borrower informed the Servicer that he could not, and had no intention, of paying the subsequent requested Balloon payment.

And although the payments were supposed to be followed by that Balloon Payment of $25,388.16 – when the Borrower informed them of how unaffordable that was -- he was given optimism that it would progress to a MODIFICATION instead of the balloon payment. But the Borrower was subsequently disappointed.  More indication of how defendants have done nothing to help the borrower keep his home.

13. On March 29^th 2021 the Borrower submitted a REQUEST FOR INFORMATION(attached) to the Servicer covering most of what is in this ARGUMENT but in question form ( and without an legal reference, in the hope that the Lender might finally offer a Modification option). It began with this:

1.    Is a previous HAMP modification 11 years ago grounds for denial of MODIFICATION in good standing ? Is 11 years “recent” ?

2.    What is the REAL reason for denying TRIAL MODIFICATION and DEFERRAL ?

3.    Was the APPEAL really denied because of an offer of REPAYMENT PLAN ?

4.    Why was the APPEAL ignored ( in all appearances) and referred to as “inquiry”?

14. On April 22^nd 2021 (24 days later) a Response(attached) to the REQUEST FOR INFORMATION (RFI) was sent. It simply parroted the letter of denial (January 27^th 2021). Repeating the same denials of the MODIFICATIONS and DEFERRAL.

It made no attempt at addressing nor answering any of the questions in the RFI.

(The Response was in 3 pages and followed by 21 pages of copies of previous letters from Servicer.)

15. April 28^th 2021: A copy of the pending Temporary Restraining Order was sent to the Servicer and given 7 days to respond. No response has been received.

16. Both Defendants have been served ( Proofs of Service attached). 

17. CA Civil Code 2924.12. a (2) Any injunction shall remain in place and any trustee’s sale shall be enjoined until the court determines that the mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent has corrected and remedied the violation or violations giving rise to the action for injunctive relief. An enjoined entity may move to dissolve an injunction based on a showing that the material violation has been corrected and remedied..

CA Civil Code  2924.12. b 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.
 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).

CA Civil Code  2924 (d) A violation of Section 2923.55, 2923.6, 2923.7, 2924.9, 2924.10, 2924.11, or 2924.17 by a person licensed by the Department of Business Oversight or the Department of Real Estate shall be deemed to be a violation of that person’s licensing law.

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,…"

Borrower is not yet asking for damages but requests that the Injunction remain in effect till 2924.12. a (2) is adhered to. He is asking for reimbursement of fees and expenses.