Plaintiff, Hickman?s Motion for Preliminary Injunction is granted.
Plaintiff has demonstrated the likelihood of success on the first cause of action in his Complaint for Violation of the Homeowners? Bill of Rights (CC ? 2923.6), and on the basis that the equities weigh in favor of granting the requested injunction.
Plaintiff declares that on 2/5/16 he submitted an updated loan modification application and that as of 2/8/16 he was told by defendant he was ?under review?. He only submitted one other document for clarification on 2/15/16 before defendant lost his email containing his documentation which he then re-provided between 2/17/16 and 2/25/16.? If the court were to follow defendant?s definition of ?complete?, i.e., when it says the application is complete, then defendant may never determine the application complete and would never be prevented from recording a Notice of Default and a Notice of Trustee Sale and could proceed with the foreclosure process without regard for the statute.
The statute provides for the ?pending? period for the lender to review and make a written determination to either deny or offer a modification.? Moreover, Select Portfolio was clearly on notice of plaintiff?s intent to seek a loan modification by the application that he had submitted at the time it recorded the Notice of Trustee Sale on 2/11/16.? For Select Portfolio to intentionally record the Notice of Trustee Sale 6 days after plaintiff submitted a loan modification application is dubious at the very least.
Given the likelihood of prevailing in showing plaintiff? had submitted a substantially complete loan modification application on 2/5/16, prior to Select Portfolio recording the Notice of Trustee Sale on 2/11/16, thereby establishing a violation of CC ? 2923.6(c), the court grants the preliminary injunction to preserve the status quo of enjoining the foreclosure sale until CC ?2923.6 is complied with properly.
While the loss of ones? residence to foreclosure is irreparable harm, such harm in and of itself, is insufficient without some showing of likelihood of success on the merits. (Alcaraz v. Wachovia Mortgage, FSB (E.D. Cal. 2009) 592 F.Supp.2d 1296, 1305.) As the Alcaraz court noted: Losing your personal home in an impending trustee’s sale has been found to demonstrate the likelihood of suffering irreparable harm to support the issuance of a preliminary injunction.? (Sundance Land Corp. v. Community First Federal Sav. & Loan Asso. (9th Cir. 1988) 840 F.2d 653, 661.)
Because plaintiff has had the benefit of a stay of the pending foreclosure, the preliminary injunction is contingent on plaintiff posting a Bond in the amount of default of $30,000 within 10 days of this order.
Plaintiff shall give notice of ruling.