Eugene Salazar vs. Rushmore Loan Management Services, LLC

Opposition

Cal. Super. - 4th Dist.October 23, 2017

v W R I G H T F I N L A Y & ZA K * A T T O R N E Y S AT LA W © 0 I O&O Wn HS» W N BN N N N N N N N N m e e e a a e m e a e m a e m 0 J O N Wn A W N = O Y N D D W N = o WRIGHT, FINLAY & ZAK, LLP T. Robert Finlay, Esq., SBN 167280 Todd E. Chvat, Esq, SBN 238282 Finer 2h of Canter 4665 MacArthur Court, Suite 200 County of Orange Newport Beach, CA 92660 01/08/2018 at 12:47:00 PM Tel: (949) 477-5050; Fax: (949) 608-9142 Clerk of the Superior Court tchvat@wrightlegal.net By e Clerk, Deputy Clerk Attorneys for Defendant, RUSHMORE LOAN MANAGEMENT SERVICES LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE EUGENE SALAZAR, an individual; Case No.: 30-2017-00951234-CU-OR-CJC Plaintiff, Assigned to Honorable Martha K. Gooding VS. DEFENDANT’S NOTICE OF OPPOSITION AND OPPOSITION TO RUSHMORE LOAN MANAGEMENT PLAINTIFF'S APPLICATION FOR SERVICES LLC; BARRETT, DAFFIN, PRELIMINARY INSUNCTION: FRAPPIER, TREDER & WEISS, LLP;and | MEMORANDUM OF POINTS AND DOES 1 through 50, Inclusive. AUTHORITIES IN SUPPORT THEREOF [Declaration of Rushmore Loan Management Services LLC and Request for Judicial Notice filed concurrently herewith) Date: January 22, 2018 Time: 1:30 p.m. Dept.: C34 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD, IF ANY: PLEASE TAKE NOTICE THAT Defendant RUSHMORE LOAN MANAGEMENT SERVICES LLC (“RUSHMORE?” or “Defendant™) hereby opposes Plaintiff EUGENE SALAZAR’s (“Plaintiff”) Application for Preliminary Injunction (the «Application”) om the 1 NOTICE OF OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION i W R I G H T FI NL AY & ZA K * A T T O R N E Y S AT LA W OO 0 J Oo nv HH WLW ND = N N N N N N N N N mm e k e a e s e k e d e d e d 0 ~ J aN w n SN Ww No - oO Oo 0 ~~ aN w h NS wD ) N L - oo grounds that Plaintiff cannot demonstrate a likelihood of success on the merits and the balance of hardships does not weigh in Plaintiff’s favor. Defendant’s Opposition is based upon this Notice, the accompanying Memorandum of Points and Authorities, the Declaration of Rushmore Loan Management Services LLC, the Request for Judicial Notice, the Court’s file, all of the matters of which the Court may take judicial notice, and upon any such other and further evidence and argument that may be offered at the time of the hearing. Dated: January 5, 2018 By: TodE. Chvat, Esq., Attorney for Defendant, RUSHMORE LOAN MANAGEMENT SERVICES LLC 2 NOTICE OF OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION IH W R I G H T F I N L A Y & Z A K A T T O R N E Y S AT LA W O O XX ON O N nn b w N N N N N N N N N N o m e b e d p a p d p a p a pe a e m RX N N nt Bk W N = O Y O Y N N N R A W N = , OO Page No MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION .....cosiiiereerirnrerereiessesiesesseeseesiessessesseessessessesssssassssssessesssssesssssenesssssone 7 IL. STATEMENT OF FACTS oot etrresre sees ae stents se esae ss esnes se ssessssssesssesesnensan 7 III. LEGAL STANDARD. ......coctiteterterencteseiertestestessestestsessessessassasssassasessesssssssnsesesassessenns 10 IV. LEGAL ARGUMENT uous. ummm mim 5555 Saw55s cmsmiioesssonssesisasssensons 11 A. PLAINTIFF CANNOT ESTABLISH A LIKELIHOOD OF SUCCESS ON THE | MERITS OF HIS COMPLAINT .....ccoiittitetenrtenteeie sree cie cesses esas sree ns ersesses sesasse asses 11 1. Plaintiff’s First Cause of Action for Violation of Civil Code Section 29236 FATS. ci is nssins 53553. 5555063555550msanmanens enrsansmnmssmsasmasammesnsesnssnnenssranssnsomnisesnsosasy 11 A. Plaintiff’s Claim Fails as the Allegedly Offending NOTS Has Been RESCINAEA ...v.vveeeeirreeeeerereeereteretereeeaeeresee ener eae se ss sts enna eereeeeres essmeasassisiomssaprasnes 12 B. Plaintiff’s Supposed “Appeal” Letter was Untimely under Section 2923.6....13 C. Plaintiff’s Letter Was Not a Valid Appeal under Section 2923.6(d)............... 13 D. Plaintiff’s Allegation that Wells Fargo did not Respond to His Letter IS FTIVOLOUS .vviueririiectctcenteeteisreeteteeseeeesaetee s st esas sve se sass anassanens 14 E. Plaintiff’s Claim Fails as Any Would-Be Violation was not Material ............ 15 2. Plaintiff’s Second Cause of Action for Violation of Civil Code Section 29235] FAIS cixissunssomsumsanivnissmosmisssassonss os nsssaisssse sas msss yassssss owssss so asess vais 9s sidn nnan vases 17 B. PLAINTIFF'S APPLICATION SHOULD ALSO BE DENIED BECAUSE EQUITABLE CONSIDERATIONS DO NOT SUPPORT INJUNCTIVE RELIEF «iii steers ste sateseeste seen atest sss saan senses see e sot snassasaasnnan 20 1 Plaintiff Comes to the Court With Unclean Hands........c.ccccceevrvvveeneevernnnnnnee. 20 2. Hardships Do Not Balance In Plaintiff's Favor.........cccccecvvneevinneennncnnenne. 21 Cx SHOULD THE COURT GRANT PLAINTIFF'S APPLICATION, HE MUST BE REQUIRED TO POST A BOND AND/OR MAKE MONTHLY PAYMENTS ....... 21 V. CONCLUSION ....cuisiitrteeetenenreseesessesseseseesseseessessesae ses se ssss ss ss essesnas eres 22 3 TABLE OF CONTENTS MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR PRELIMINARY] INJUNCTION VY W R I G H T FI NL AY & ZA K A T T O R N E Y S AT LA W OO 0 9 O N Wn Rs W N N R N N N N N N = m TABLE OF AUTHORITIES Cases Page No. Abba Rubber Co. v. Seaquist (1991) 235 Cal. APP.3A 1, 15-16 .uceeireeeeniniierireeeeieneeseesseeseeecssessasteneessessesacsnsessesesenastesnnsasensens 22 Blank v. Kirwan (1985) 39 Cal.3d 311; B18 cscvususmmunssussmassnsssssrenssssssnsss unis s s sass ss wars sssss sass roaaavis is Nasa a sy 19 Butt v. State of California (1992) 4 Cal.4th 668, 677-78 .....oooreereieirriteiriecienreriniestste resents creas seses sses estes ess sass s bese sass 21 Castaneda v. Wells Fargo Home Mortg. (C.D. Cal., 2016) 2016 U.S. Dist. LEXIS 23998, *7......cccccvemreereerereesernsaesersens RR 12 Castillo v. Wells Fargo Bank, N.A. | | 2015 LL.S. Dist. LEXIS 94176, at *1 (N.D. Cal. 2015). ccusscormammnmsssewnsssssmpsusssnmmmmsssssssuness 15 Citizens for Better Streets v. Board of Sup'rs of City and County of San Francisco (2004) 117 CalAPPALI 1 cei se erste sa erasers ssbb ase 11, 20 Citizens for Better Streets v. Board of Sup'rs of City and County of San Francisco (2004) 117 Cal. APpAth 1,6 icnausossmmssssasansmissmsmsmmmssssisos ss ss vm: 11, 20 Dickson, Carlson & Campillo v. Pole (2000) 83 Cal. App.4th 436, 446-47 .......oceeoivireiiiiiniiiiiitesrsie esrb nes 20 Dowling v. Bank of Am., N.A. 2017 U.S. Dist. LEXIS 121779, *13, 2017 WL 3284675 (E.D. Cal. 2017)...cc.cccccvrverenennece poses 140) Federal AutomotiveServices v. Lane Buick Co. | £1962) 204 Cal. App.2d 089 uvmmossmmrsmmarmsmms sass somo asso 21 Foote v. Wells Fargo Bank, N.A. 2016 U.S. Dist. LEXIS 65019, *14-15 (N.D. Cal. May 16, 2016).......cccceeuvurvrivrcrrnccrcnerrenuenes 15 Garcia v. PNC Mortgage | 2015 WL 534395 at *5 (N.D. Cal. 2015) .ccvvririrrirctciciintinininie sinensis seen e ersasse sae sone nes 19 4 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR PRELIMINARY] INJUNCTION 12 W R I G H T F I N L A Y & ZA K * A T T O R N E Y S AT LA W O O © 93 NN nh kA W N N N N N N N N N N m m e m e s e m e a e m e m a co ~~ O N Un bk L N R O O N N B R E W ND -, oO Jent v. N. Trust Corp. (E.D. Cal., 2014) 2014 U.S. Dist. LEXIS 5478........cccecevmmmminnininiicnierenissenes essere, 13 Judan v. Wells Fargo Bank, Nat'l Ass'n, 2017 1.8. Dist. LEXIS 114219, *17-18 MN.D: Cal: 2017): suis suis sswonemsssnsasssisemsnesss sommes 15 Korean Philadelphia Presbyterian Church v. California Presbytery | (2000) 77 Cal: App Ath 1069; 1084 ..cocmmmsmmssmmsssesmmpesemvassyommmsrasssows mimes 11,20 McKinley v. CitiMortg., Inc. (E.D. Cal., 2016) 2016 U.S. Dist. LEXIS 77413, 2016 WL 3277254, at ¥7......ccccecevrvnrrevurennas 13 Montes v. Wells Fargo Bank, N.A. 2017 U8. Dist. LEXIS 42609; *1.1 (IN-D. Cal; 2017) cocumsevssssavssssesmessesmpmanpsssemmonsssmmsmessvesesmns 15 Neumann v. Moretti (1905) 146 Cal. 31 cee b sbeebs bees hasan sess ens 21 Pearson v. Green Tree Servicing, LLC (N.D. Cal., 2014) 2014 U.S. Dist. LEXIS 163765, *4 .......c.ccooverivvvcvnmrreninncns cevrerirnnesenesenesenes 12 Rockridge Trust v. Wells Fargo, N.A. (BCD Cal, 2015) 2013 WL 3428722, at *27 consumes re 20 San Francisco Newspaper Printing Co., Inc. v. Sup.Ct. (1985) 170 Cal.APP.3d 438 coors cers steers eae sans 11,20 San Francisco Newspaper Printing Co., Inc. v. Sup.Ct. (1985) 170 Cal. App.3d 438, 442 .ccciuvismmmssoxsossosmonss ams ssinsmasmms mos rms ass assess amsys ee 10, 20 Scott v. Cont'l Ins. Co. (1996) 44 Cal. APP.4th 24,29 ......cvruiviiiiiiiiiriiniititiree eres aera s as sens 15 Shumake v. Caliber Home Loans, Inc. 2017 U.S. Dist. LEXIS 2928, *14 (C.D. Cal. 2017) meer S- SS 15 White v. Davis (2003) 30 Cal.4th 528, 554 ....cccovvvvvrrnnnnne. sa guess mma BET SAT 5 mses sas 11 Wolski v. Fremont Inv. & Loan 2008) 127 Cal.Xppath B47, 98] nunesmsummmmanmomseasmsmossm anemones Socustons 1d 5 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR PRELIMINARY] INJUNCTION iH W R I G H T F I N L A Y & ZA K * A T T O R N E Y S AT LA W OO 0 I O&O Wn p h W O N N N N N N N N N H E E e d e m e m e m ee e d e d pe a © 3 O N hh BA W N = O VO N I N N R W = o Statutes Civil ‘Code SECTION 2923.6 ....curiiorersieneoninineansessassnennnss swunns i i ob 555656588 555565% 75578 597888 EFS HTIRISSRETRERARS 7,11 Civil COE SECON 2923.7 ceeeeeeeeeiiieiiecisiririeereceesississsssee sess esssssssssssse sss sessssssssssnsas sons reins 7,17,18 Civil Code Section 2924.12(2) (2) aNd (C).eerverrerreeriernrirrierteeeeieniesteeeeneesresseessesssisesssessasens 7,20] Civil Code Section 2923.6(€) (2) ..cevercvirruirreiereeririeniteriee ste rs setesse sere esse esses esa essssssns sass s seas 9,10 Civil Code Section 2923.6(C) .eeevvierueirirerieeeereeniecnieeeseeeseeerreeseesssee s es sree seas saeess ess seen a s sasas 12,15 Civil Code Section 2924.12(a)(1) and (2) ...coceverererenienineneniciicnenieniee se srs seesessnsnns 12,15,19 Civil COE SCHON 2924. 12(C) vvuverererreeeeeereseesseesseesaesss ss sessss s sssss s sssss sssss s s sassasssssssassssnsaees 12 Civil Code Section 292 3.6(d) atid {€) (1 Jess: sues ssssis ssussmnos sunassnan ssnsssmuassssssonss avanna eres 13 Civil Code Section 2923.6(d) .....cccsseerersereonesasrassosnsansnsssssussusssssssssssessesasssraesssssrsesssssassssssossasons 13,14 Civil Code Section 2923.4(8) «ueeveevrrerremreereerieeieerrieriesseestesaes se sse st assesses sseese e ess seesese sessanes 17,21 Code of Civil Procedure Section 529(a) ......ccceverrererrieieriiienienine c ete esses nses saesssonaaes 21 6 MEMORANDUM OF PCINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION IH W R I G H T F I N L A Y & ZA K A T T O R N E Y S AT LA W OO 00 J O&O Wn Sh WL W NY N D R = = ® I & B R B R O = S 0 5 x» I a n E L 0 ~~ Oo I. INTRODUCTION Plaintiff’s action, in its entirety, contends that Wells Fargo Bank, the loan’s prior servicer, violated the Homeowner’s Bill of Rights (‘HBOR”) by recording a Notice of Trustee’s Sale on May 23, 2017 while a modification review was still pending. Namely, Plaintiff alleges he submitted a loan modification application to Wells Fargo on March 22, 2017 which was ultimately denied on March 29, 2017. [Complaint (“Comp.”), 1914-17]. Plaintiff alleges that “[w]ithin 30 days of the denial of the Proprietary Step Rate Program, on April 27, 2017, [he] delivered a written appeal of the denial to Wells Fargo and Trustee.” [Comp., §19]. Thereafter, Plaintiff alleges that “without responding to [his] written appeal of the denial of the Proprietary Step Rate Program, Wells Fargo and Trustee caused to be recorded a Notice of Trustee's Sale ...on May 23, 2017” in violation of Civil Code §2923.6. [Comp., 1720-23, 30-35]. Plaintiff also alleges that Wells Fargo violated Civil Code §2923.7 by failing to appoint a “competent” single point of contact (“SPOC”). [Comp., §]39-41]. Because RUSHMORE is now the current servicer of the loan, having taken over the servicing rights from Wells Fargo in August 2017, Plaintiff imputes these statutory violations on RUSHMORE as well. [See Comp., generally]. As detailed below, Plaintiffs allegations are patently false and no such HBOR violations | occurred. More importantly, the disputed Notice of Trustee’s Sale was rescinded in accordance with the HBOR’s safe harbor provision, Civil Code §2924.12(a)(2) and (c). Thus, even if an initial violation of section 2923.6 or 2923.7 did occur (which it did not), it has been remedied such that no liability exists and injunctive relief is no longer available. As a result, Plaintiff's application for a preliminary injunction should be denied since his allegations fail and, in any event, are now moot as a matter of law. Plaintiff has not, and cannot, demonstrate a likelihood of success on the merits of his claims and the balance of equity does not fall in his favor. IIL. STATEMENT OF FACTS On February 22, 2006, Plaintiff obtained an adjustable rate refinance loan in the amount of $435,000.00 (the “Loan”) from World Savings Bank, FSB. [Dec. of RUSHMORE, {7 and Ex. 1; RIN, Ex. 1]. The Loan was secured by a Deed of Trust (“DOT”) to real property located at 2534 N. Forest Ave., Santa Ana, CA 92706 (“Property”). Id. In 2008, Wells Fargo Bank, N.A. acquired Wachovia Bank, which included World Savings Bank, FSB. In 2010, Plaintiff began 7 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION 2 W R I G H T F I N L A Y & ZA K * A T T O R N E Y S AT LA W OO 0 NN O N Wn A W N = N O N N N N N O N N N = e m e a a e a e a a a 0 ~N 1 N be WL N = , O O N N N E W N D = o having difficulty affording his payments and in May 2010 his Loan was permanently modified by Wells Fargo to reduce his monthly payment and place him in a step-up fixed rate loan, as opposed to an adjustable rate based on market conditions. [RUSHMORE Dec., {9 and Ex. 2]. In August 2016, Plaintiff began having difficulty affording his Loan payments again and requested assistance. On August 25, 2016, he was assigned Ms. Lynn Lloyd as his Wells Fargo “home preservation specialist”, i.e., SPOC, to explore available options. [RUSHMORE Dec., 910 and Ex. 3]. Plaintiff applied for a modification and on September 8, 2016 was denied both a “Proprietary Step Rate” modification and a HAMP modification because, in both instances, “we are unable to create an affordable mortgage payment that still meets the requirements of the program.” [RUSHMORE Dec., {11 and Ex’s 4-5]. An appeal form was attached to both denial letters. Id. Plaintiff appealed the denial and on September 30, 2016, Wells Fargo responded via letter that the denial of the modification had been confirmed as “you still do not meet the requirements for a loan modification.” [RUSHMORE Dec., {12 and Ex. 6]. On January 9, 2017, a Substitution of Trustee was recorded by Wells Fargo placing Barrett Daffin Frappier Treder & Weiss, LLP in as the new DOT Trustee. [RUSHMORE Dec., 13 and Ex. 7; RIN, Ex. 2]. Due to Plaintiff’s default on the Loan, a Notice of Default was recorded on January 19, 2017 noting arrearages at the time of $17,036.62. [RUSHMORE Dec., 114 and Ex. 8; RIN, Ex. 3]. On March 22, 2017, Plaintiff, through counsel of record, the Vantis Law Firm, submitted a new modification application with a cover letter representing that the new application “evidences a material change in our client’s financial situation”. [RUSHMORE Dec., {15 and Ex. 9; Plaintiff’s Ex Parte App., Ex. C]. On March 24, 2017, in response to Plaintiff’ s application, he was assigned Ms. Pamela Luna as his Wells Fargo “home preservation specialist”, i.e., SPOC. [RUSHMORE Dec., {16 and Ex. 10]. Plaintiff’s application was reviewed and later denied on March 29, 2017 because Wells Fargo was “unable to create an affordable mortgage payment that still meets the requirements of the program.” [RUSHMORE Dec., 17 and Ex. 11; Plaintiff’s Ex Parte Application, Ex. E]. An appeal form was attached to the denial. Id. On March 30, 2017, in furtherance of the modification denial, Wells Fargo sent Plaintiff a letter indicating that he was approved for a possible short sale option. [RUSHMORE Dec., {18 and Ex. 12]. Plaintiff did not respond to the short sale alternative notice. Rather, on May 4, 8 BN MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR PRELIMINARY) INJUNCTION IH W R I G H T F I N L A Y & ZA K A T T O R N E Y S AT LA W NO 00 9 O N Wn BR W N N O N N N O N N N N O N = o e em em e m em e m e d e m RN 9 A nh RA W N = O D0 S N N B s WwW N D = Oo 2017, more than 30 days after the March 29, 2017 denial, Plaintiff's counsel sent a letter via fax to Wells Fargo purporting to be a “formal written appeal” of the modification denial. [RUSHMORE Dec., 19 and Ex. 13]. The time stamp at the top of the page evidences its submission to Wells Fargo on May 4, 2017 at 6:16 p.m. Id. Plaintiff's May 4, 2017 letter did not relate at all to the specific grounds for Wells Fargo’s modification denial determination. Rather, Plaintiffs letter merely argued that Wells Fargo’s “Net Present Value” calculations were incorrect and demanded the production of “all valuations [Wells Fargo] currently has] related to my client’s property.” [RUSHMORE Dec., 20 and Ex. 13]. However, the value of the property had nothing to do with the denial of Plaintiff's modification application; a modification was denied due to Plaintiff's lack of finances, not any “Loan to Value” or “Net Present Value” calculation. [RUSHMORE Dec., §21 and Ex. 11]. As a result, on May 11, 2017, Wells Fargo sent Plaintiff's counsel a letter advising that his May 4, 2017 communication was not a valid appeal of the modification denial as “the reason for the denial of assistance options was specifically related to the customer’s ability to afford a modified payment, and not due to NPV” and “the documentation you sent requesting an appeal of the decision was not sufficient to support an appeal of the account as you did not provide supporting income documentation to overturn the decision.” [RUSHMORE Dec., 122 and Ex. 14]. The May 11, 2017 letter also advised Plaintiff's counsel that a SPOC was indeed assigned, Ms. Pamela Luna, and Plaintiff’s application was fully reviewed and all modification options were denied due to his insufficient income. [RUSHMORE Dec., 923 and Ex. 14]. In light of the modification denial and Plaintiff's invalid and untimely appeal letter, a Notice of Trustee’s Sale (“NOTS”) was recorded on May 23, 2017 setting the sale date for June 17,2017. [RUSHMORE Dec., 24 and Ex. 15; RIN, Ex. 4]. On June 13, 2017, Plaintiff's counsel sent Wells Fargo a letter demanding that the NOTS be rescinded under Civil Code §2923.6(e)(2). [Plaintiff's Ex Parte Application, Ex. H]. On June 14,2017, Wells Fargo’s SPOC Pamela Luna notified Plaintiffs counsel via letter that Plaintiff was again eligible for a short sale option. [RUSHMORE Dec., 925 and Ex. 16]. Plaintiff faxed the signed letter back to Wells | Fargo indicating his desire to pursue a short sale. [RUSHMORE Dec., 26 and Ex. 17]. In light of Plaintiff's indicated desire to pursue the short sale option, the foreclosure sale was continued. 9 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION [2 W R I G H T F I N L A Y & ZA K * A T T O R N E Y S AT LA W OO 0 9 OA Dn HB W O N e e N O N N N N N NN N N -/) o m e k p d p m p m e m p m e m p a 0 N I N Wn BR W N = O Y Y W N R o [RUSHMORE Dec., 427]. On June 26, 2017, Wells Fargo provided a formal response to Plaintiff’s June 13, 2017 letter confirming that the NOTS was proper and did not violate Civil Code §2923.6(¢e)(2) because Plaintiff’s May 4, 2017 letter was untimely and not a valid appeal of] the denial under HBOR. [RUSHMORE Dec., 28 and Ex. 18]. Specifically, the letter stated that under HBOR, the appeal deadline expired on April 29, 2017, and regardless, “the documentation provided was not applicable appeal documentation.” Id. at §29. | On July 12,2017, Wells Fargo’s SPOC Pamela Luna sent a letter to Plaintiff's counsel advising that the short sale option had been denied since the current purchase price offer submitted by Plaintiff at $400,000.00 was far below market value; Wells Fargo indicated that the investor may be willing to consider a short sale purchase offer at $560,000.00. [RUSHMORE Dec., 130 and Ex. 19]. On August 1, 2017, Wells Fargo’s SPOC Pamela Luna sent another letter to Plaintiffs counsel again advising that “The offer to sell your home is significantly below the market value. For that reason you have not been approved for the short sale.” [RUSHMORE Dec., 31 and Ex. 20]. On August 3, 2017, Plaintiff was notified via letter that effective August 22,2017 the servicing of his Loan was being transferred to RUSHMORE. [RUSHMORE Dec., 932 and Ex. 21]. On September 5, 2017, Corporate Assignments of Deed of Trust were recorded evidencing the sale of the Loan to U.S. Bank National Association, as trustee for TRUMAN 2016 SC6 TITLE TRUST. [RUSHMORE Dec., 33 and Ex. 22; RIN, Ex. 5]. On January 3, 2018, the disputed NOTS was rescinded. [RUSHMORE Dec., 34 and Ex. 23; RIN, Ex. 6]. II. LEGAL STANDARD In deciding whether to issue a preliminary injunction, the Court must evaluate two interrelated factors: 1. The likelihood that Plaintiff will prevail on the merits of the underlying complaint at trial; and 2. The interim harm or irreparable injury that Plaintiff is likely to sustain if the injunction is denied, as compared to the harm that defendants are likely to suffer if the preliminary injunction is issued. White v. Davis (2003) 30 Cal.4th 528, 554. A preliminary injunction cannot be issued unless it is reasonably probable that the moving party will prevail on the merits. San Francisco Newspaper Printing Co., Inc. v. Sup.Ct. (1985) 170 Cal.App.3d 438, 442. The burden of proof lies with the moving party. Citizens for 10 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION i W R I G H T F I N L A Y & ZA K A T T O R N E Y S AT LA W OO © 3 O&O Wn A” W N = N O N N N N N N N N N = mm e m em e m e m e m e m e m XX NN AN nn A L N D PR, O Y N N N R L N D = Oo Better Streets v. Board of Sup'rs of City and County of San Francisco (2004) 1 17 Cal.App.4th 1, 6. “An injunction... must be supported by actual evidence that there is a realistic prospect that the party enjoined intends to engage in the prohibited activity.” Korean Philadelphia Presbyterian Church v. California Presbytery (2000) 77 Cal. App.4th 1069, 1084. Here, Plaintiff has failed to meet his burden of proof. IV. LEGAL ARGUMENT A. PLAINTIFF CANNOT ESTABLISH A LIKELIHOOD OF SUCCESS ON THE - MERITS OF HIS COMPLAINT. Plaintiffs Application should be denied since none of his claims are likely to succeed on their merits as follows: 1. Plaintiffs First Cause of Action for Violation of Civil Code Section 2923.6 Fails. As mentioned above, Plaintiff admittedly defaulted on the subject loan which resulted in a Notice of Default being recorded on January 19, 2017. [Comp., 12-13]. Plaintiff’s first cause of action contends that Wells Fargo Bank, the loan’s prior servicer, violated Civil Code §2923.6 of the HBOR by recording the NOTS on May 23, 2017, “prior to completing a review of all available loss mitigation options” and prior to any response to Plaintiff’s purported denial “appeal” letter. [Comp., §130-32]. Namely, Plaintiff alleges that he submitted a loan modification application to prior servicer Wells Fargo on March 22, 2017 which was ultimately denied on March 29, 2017 since Plaintiff did not meet the eligibility requirements fora modification. [Comp., §]14-17]. Plaintiff alleges that “Within 30 days of the denial of the Proprietary Step Rate Program, on April 27, 2017, [he] delivered a written appeal of the denial to Wells Fargo and Trustee.” [Comp., §19]. Thereafter, Plaintiff alleges that “without responding to Plaintiff's written appeal of the denial of the Proprietary Step Rate Program, Wells Fargo and Trustee caused to be recorded a Notice of Trustee’s Sale ...on May 23, 2017” in violation of Civil Code §2923.6. [Comp., 1920-23, 30-35]. Because RUSHMORE is now the servicer of the loan, having taken over the servicing rights in August 2017, Plaintiff now imputes these statutory violations on RUSHMORE. [Comp., generally]. As a preliminary matter, Plaintiff’s contention that Wells Fargo and/or RUSHMORE violated 2923.6 because they “failed to properly review Plaintiff for all available loss mitigation 11 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION Ia W R I G H T F I N L A Y & Z A K * A T T O R N E Y S AT LA W © 0 NN O&O Wn A W N N O N N N N N N N e m e a e m a a e e a 0 ~~ O N Wn hs W N R O Y N N YY lA W w w , oO options” (Comp., 1930, 32) is erroneous on its face as section 2923.6 only applies to a loan modification review, not “all available loss mitigation options.” Civil Code §2923.6(c) (“If a borrower submits a complete application for a first lien loan modification...””). Furthermore, Plaintiff’s allegations concede that RUSHMORE was not the servicer at the time of the alleged violations and thus did not engage in any of the allegedly unlawful conduct. Nevertheless, Plaintiffs allegations are patently false and fail for multiple other reasons. A. Plaintiff’s Claim Fails as the Allegedly Offending NOTS Has Been Rescinded. First, and most crucial, the disputed Notice of Trustee’s Sale has been rescinded. [RUSHMORE Dec., §34 and Ex. 23; RIN, Ex. 6]. Section 2923.6 only prohibits a loan servicer from recording a notice of default or notice of sale, or conducting a trustee’s sale, while the borrower has a complete first lien loan modification application pending. Civil Code §2923.6(c). Plaintiff alleges that Defendant violated section 2923.6 by recording the Notice of Trustee’s Sale on May 23, 2017 without having responded to his “appeal” letter and thus “prior to expiration of 15 days after any purported response to said appeal.” [Comp., 1120-22, 32-37]. However, even if such a violation had occurred, it has been remedied by the rescission of the allegedly violating sale notice. [RJN, Ex. 6]. Under Civil Code sections 2924.12(a)(1) and (2), the only available remedy to Plaintiff | pre-foreclosure sale is injunctive relief “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.” Per Civil Code section 2924.12(c), a servicer “shall not be liable for any violation that it has corrected and remedied prior to the recordation of a trustee’s deed upon sale...” (emphasis added). Because the allegedly violating Notice of Trustee’s Sale has now been rescinded, any would-be violation has been remedied and Plaintiff’s 2923.6 claim is moot. Defendant can no longer be held liable and injunctive relief is no longer available (assuming a violation had occurred in the first place). See Castaneda v. Wells Fargo Home Mortg. (C.D. Cal., 2016) 2016 U.S. Dist. LEXIS 23998, *7 (If a mortgage servicer corrects and remedies a violation prior to the recordation of a trustee's deed upon sale, it is not liable); Pearson v. Green Tree Servicing, LLC (N.D. Cal., 2014) 2014 U.S. Dist. LEXIS 163765, *4 (“Having remedied the very violation that the complaint sought to cure-rescission 12 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TG MOTION FOR PRELIMINARY INJUNCTION [2 W R I G H T F I N L A Y & ZA K * A T T O R N E Y S AT LA W OO © NN O&O wn A W N N N N N N N N N N N = mm a a a a a e m a a ® N N Ln B R A W N = O Y X N N N N E W ND - o o of the Notice of Default- there is no remaining case or controversy for the Court to adjudicate based on present circumstances, so dismissal is proper”); McKinley v. CitiMortg., Inc. (E.D. Cal., 2016) 2016 U.S. Dist. LEXIS 77413, 2016 WL 3277254, at *7 (finding plaintiff was not entitled to injunctive relief to prevent foreclosure “[g]iven the rescission of the relevant foreclosure documents”); Jent v. N. Trust Corp. (E.D. Cal., 2014) 2014 U.S. Dist. LEXIS 5478 (holding that liability was precluded when defendants had rescinded the allegedly violating notice). Here, Plaintiff’s Complaint even concedes that he would only be entitled to an injunction “until such time that the violation of law is cured by rescission of the illegal Notice of Trustee’s Sale...” [Comp., §37]. Because the Notice of Trustee’s Sale has indeed been rescinded (RIN, Ex. 6), Plaintiff admittedly is not entitled to any further relief and his request for a preliminary injunction must be denied. B. Plaintiff’s supposed “Appeal” Letter was Untimely under Section 2923.6. Second, even if the allegedly offending notice had not been rescinded, Plaintiff’s claim would still fail. Contrary to his allegation, Plaintiff, through counsel of record, submitted a letter to Wells Fargo on May 4, 2017, not April 27, 2017, which referred to itself as the “formal written appeal” of the modification denial. [RUSHMORE Dec., 19 and Ex. 13]. The time stamp at the top of the page evidences its submission to Wells Fargo on May 4, 2017, not April 27.2017. Id. Under Civil Code §2923.6(d) and (e)(1), a borrower shall have 30 days from the date of a written denial to appeal the denial and a notice of trustee’s sale cannot be recorded until “[t]hirty-one days after the borrower is notified in writing of the denial.” Because Plaintiff’s May 4, 2017 letter was not submitted to Wells Fargo within 30 days of the March 29, 2017 denial letter, it was untimely under the HBOR. Therefore, Plaintiffs May 4, 2017 letter did not warrant any further protections under the express language of Civil Code §2923.6(e)(1) and the May 23, 2017 NOTS was proper. This timing defect is also confirmed by Wells Fargo in its June 26, 2017 response letter to Plaintiff's counsel. [RUSHMORE Dec., Ex. 18]. C. Plaintiff's Letter was Not a Valid Appeal under Section 2923.6(d). | Third, and more importantly, Plaintiff's May 4, 2017 communication was not a valid “appeal” letter to begin with. Pursuant to Civil Code §2923.6(d), “If the borrower’s application 13 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION W R I G H T FI NL AY & ZA K A T T O R N E Y S AT LA W Oo © 9 O N n h ” W N N N N R N N RN N N H m m m e m e m em em em 0 J O N n n R A W L I N S VO N N N N R W L R , for a first lien loan modification is denied, the borrower shall have at least 30 days from the date of the written denial to appeal the denial and fo provide evidence that the mortgage servicer’s determination was in error.” (emphasis added). Here, Plaintiffs May 4, 2017 letter did not | relate at all to the specific grounds for Wells Fargo’s modification denial determination. Rather, Plaintiff’s letter merely argued that Wells Fargo’s “Net Present Value” calculations were incorrect and demanded the production of “all valuations [Wells Fargo] currently ha[s] related to my client’s property.” [RUSHMORE Dec., 420 and Ex. 13]. However, the value of the property had nothing to do with the denial of Plaintiff’s application. [RUSHMORE Dec., 21 and Ex. 11]. Wells Fargo’s March 29, 2017 denial letter clearly stated that Plaintiff was denied any available modification because, “[b]ased on the documentation you provided, we are unable to create an affordable mortgage payment that still meets the requirements of the program.” 7d. Therefore, a modification was denied due to Plaintiff’s lack of finances, not any “Loan to Value” or “Net Present Value” calculation. 7d. | - As a result, Plaintiff's May 4, 2017 communication was not a valid appeal of the modification denial and also did not provide any evidence or facts to remotely suggest that Wells Fargo’s denial determination was made in error as expressly required by the statute. As such, no further protections under the HBOR were warranted. See Civil Code §2923.6(d). Plaintiffs failure to submit a valid appeal letter was confirmed by Wells Fargo in its response letters to Plaintiff’s counsel dated May 11, 2017 and June 26, 2017. [RUSHMORE Dec., 9120- 23, 28-29 and Ex.’s 14 and 18]. D. Plaintiff's Allegation that Wells Fargo did not Respond to His Letter is Frivolous. Fourth, contrary to Plaintiff’s allegations, a response to his invalid appeal letter was indeed sent by Wells Fargo on May 11, 2017. [RUSHMORE Dec., 1922-23 and Ex. 14]. As detailed in Wells Fargo’s May 11, 2017 response letter, Plaintiff was expressly advised that his May 4, 2017 communication was not a valid appeal of the modification denial as “the reason for the denial of assistance options was specifically related to the customer’s ability to afford a modified payment, and not due to NPV” and “the documentation you sent requesting an appeal of the decision was not sufficient to support an appeal of the account as you did not provide supporting income documentation to overturn the decision.” Id. Wells Fargo’s letter also 14 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION W R I G H T F I N L A Y & ZA K * A T T O R N E Y S AT LA W OO 0 NN O N nn Rk L N N N N N N N N N N mm e e e e e a a e d a p d a p m 0 N A N L t A W N = O V N D N R W N R o advised Plaintiff's counsel that a SPOC, Ms. Pamela Luna, was indeed assigned and Plaintiff’s application was fully reviewed and all modification options denied due to his lack of income. 7d. Wells Fargo’s June 26, 2017 response letter to Plaintiff equally confirmed the invalidity of Plaintiffs May 4, 2017 purported “appeal” letter. [See RUSHMORE Dec., 928 and Ex. 18]. Accordingly, Plaintiff’s allegation that Wells Fargo recorded the NOTS on May 23, 2017 without responding to his “appeal” letter is completely frivolous. [Comp., §20]. Wells Fargo clearly responded to Plaintiff’s defective “appeal” letter and there was no modification review pending at the time the NOTS was recorded. Civil Code section 2923.6(c) only prohibits a loan servicer from “record[ing] a notice of default or notice of sale, or conduct[ing] a trustee’s sale, while the [borrower has a] complete first lien loan modification application pending.” In this case, no such application was pending on May 23, 2017. E. Plaintiff’s Claim Fails as Any Would-Be Violation was Not Material. Fifth, in light of the modification reviews in late 2016 and 2017, denials due to lack of income, Wells Fargo’s responses to Plaintiff’s invalid “appeal” letter, the sale postponements, and short sale reviews, any would-be violation of section 2923.6 by recording the NOTS on May 23, 2017 was not “material” as expressly required. A violation of the HBOR must be “material” in order to be actionable. Civil Code §2924.12(a)(1). The term “material” means significant, essential or having importance or great consequence. [“MATERIAL”, Black’s Law Dictionary (10th ed. 2014)]. “The words of the statute should be given their ordinary and usual meaning...” Wolski v. Fremont Inv. & Loan (2005) 127 Cal. App.4th 347, 351. “[C]ourts in non- insurance contexts turn to general dictionaries when they seek to ascertain the “ordinary” meaning of words used in a statute.” Scott v. Cont'l Ins. (1996) 44 Cal.App.4th 24, 29. Accordingly, to be actionable, a violation of the HBOR must have had some effect on the modification review or foreclosure process. Along these lines, courts have now agreed that a violation of the HBOR is “material” only where it “deprive[s]” the borrower “of the opportunity to obtain a loan modification.” Foote v. Wells Fargo Bank, N.4.,2016 U.S. Dist. LEXIS 65019, *14-15 (N.D. Cal. May 16, 2016) (emphasis in original). In other words, the alleged HBOR violation must interfere with a homeowner’s right to be “considered for” or to have “a meaningful opportunity” to obtain a loan modification or other foreclosure alternative” 15 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR PRELIMINARY] INJUNCTION I W R I G H T F I N L A Y & Z A K * A T T O R N E Y S AT LA W OO 0 JN Oo wn br W N N N N N N N O N N O N = e m e s a p a a e d e d a xX N N nh p W NY = O O N D N E W N D R D in order to be actionable. Dowling v. Bank of Am., N.A., 2017 U.S. Dist. LEXIS 121779, *13, 2017 WL 3284675 (E.D. Cal. 2017); see also Shumake v. Caliber Home Loans, Inc.,2017 U.S. Dist. LEXIS 2928, *14 (C.D. Cal. 2017); Judan v. Wells Fargo Bank, Nat'l Ass'n, 2017 U.S. Dist. LEXIS 114219, *17-18 (N.D. Cal. 2017); Montes v. Wells Fargo Bank, N.A.,2017 U.S. Dist. LEXIS 42609, *11 (N.D. Cal. 2017); Castillo v. Wells Fargo Bank, N.A., 2015 U.S. Dist. LEXIS 94176, at *1 (N.D. Cal. 2015) (finding that to be “material,” the violation must have “prejudiced [the plaintiff’s] ability to obtain a loan modification.”). Here, no “material” violation can be established because neither Wells Fargo nor RUSHMORE deprived Plaintiff of any opportunity to obtain a modification or other loss mitigation option. Instead, the facts clearly establish that Plaintiff was reviewed for a modification by Wells Fargo multiple times and denied on September 8, 2016 and March 29, 2017 due to his financial ineligibility, and later reviewed and denied for short sale options as well. [RUSHMORE Dec., {]10-12, 15-31 and Ex.’s 3-6, 9-12, 14, 16-20]. According to his own submitted financials, Plaintiff’s gross monthly income was $1,500.00 and his monthly expenses were $3,733.84. [RUSHMORE Dec., Ex. 14]. Thus, Plaintiff simply could not afford any modified payment and Wells Fargo confirmed that he did not qualify for any modification options in its May 11, 2017 response to Plaintiff's untimely and invalid “appeal” letter. Id. Moreover, Wells Fargo’s response letters also clearly referenced that Plaintiff’s May 4th letter was not a valid appeal since it did not relate to the reason why the application was denied and did not provide any supporting documentation or evidence as required. [RUSHMORE Dec., Ex.’s 14, 18]. Thus, the NOTS recorded on May 23, 2017 did not violate section 2923.6. But, even if Plaintiff’s letter had been a valid and timely appeal of the modification: denial (which it was not), Wells Fargo still provided a substantive response reaffirming the modification denial prior to the recording of the NOTS. Id. As such, no modification review was pending at the time the NOTS was recorded and Plaintiff was clearly not deprived of any opportunity to obtain a modification or other loss mitigation option. In fact, after the modification denial, the sale was postponed by Wells Fargo when Plaintiff was reviewed fie a short sale which was eventually denied because the purchase offers submitted by Plaintiff were too far below market value. [RUSHMORE Dec., 4925-27, 30-31 and Ex.’s 16-17, 19-20]. 16 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION 2 W R I G H T F I N L A Y & ZA K * A T T O R N E Y S AT LA W NO 0 NN O Y Wn BA W N N N N N N N N N N ee e a e a ee e a e d e a 0 N N N n n A L N D = DO YO N N YN W N = o Finally, any claimed violation under section 2923.6(e)(2) would be equally immaterial and unavailing. Under section 2923.6(e)(2), “[i]f the borrower appeals the denial”, a notice of sale shall not be recorded until “15 days after the denial of the appeal[.]” Here, Wells Fargo’s response to Plaintiff's May 4th letter was sent on May 11th and the NOTS was recorded only 12 | days later on May 23, 2017. [/d. at Exhibit 15; RIN, Exhibit 4]. Yet, despite the fact that the NOTS was recorded within 15 days of Wells Fargo’s response letter, no violation could have possibly occurred since Plaintiff's May 4th letter was not a valid appeal of the modification denial as detailed above. Thus, section 2923.6(¢)(2)’s 15 day waiting period was not triggered by virtue of Plaintiff’s fatally defective “appeal” letter. And regardless, even if Plaintiffs May 4th letter was a valid appeal, the recording of the Notice of Trustee’s Sale 12 days after the “appeal” response letter, as opposed to 15 days, was clearly immaterial since it had no effect on Plaintiff’s opportunity to obtain a modification and did not impact or interfere in any conceivable way with his loss mitigation review. See Foote, supra; Dowling, supra; Shumake, supra, Judan, supra; Montes, supra; Castillo, supra. As it stands, Plaintiff cannot demonstrate any material violation as he clearly was not deprived of the opportunity to obtain a modification given that he was admittedly reviewed for a modification and denied due to his financial ineligibility. Wells Fargo and RUSHMORE fully complied with the spirit and obligations of the HBOR. “The purpose of the [HBOR] is to ensure that . . . borrowers are considered for, and have a meaningful opportunity to obtain, available loss mitigation options” Civil Code §2923.4(a). However, HBOR guarantees only the opportunity; it does not guarantee that a borrower will receive a loan modification. /d. (“Nothing in the act . . . shall be interpreted to require a particular result...”). Plaintiff was clearly considered for, and had a meaningful opportunity to obtain, available loss mitigation options. His inability to qualify for any option does not amount to a violation of the HBOR. Accordingly, Plaintiffs claim for violation of section 2923.6 fails as a matter of law. 2. Plaintiff’s Second Cause of Action for Violation of Civil Code Section 2923.7 Fails. With respect to his claim under section 2923.7, Plaintiff's ex parte application for injunctive relief merely regurgitates the Complaint’s conclusory allegations that: Plaintiffs assigned single point of contact violated HBOR as follows: 17 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR PRELIMINARY) INJUNCTION [2 W R I G H T FI NL AY & ZA K * A T T O R N E Y S AT LA W OO 0 NN O N Wn Bx W N BN N N N N N N N N F e r e e e a a a e a e m e m NR 9 O N nn bh W N = O O Y B W N = Oo a. Failed to have access to current information and personnel sufficient to timely, accurately, and adequately inform Plaintiff of the current status of the foreclosure prevention alternatives. b. Failed to ensure that Plaintiff was considered for all foreclosure prevention alternatives offered by, or through, the mortgage servicer. c. Failed to have access to individuals with the ability and authority to stop foreclosure proceedings when necessary. [Plaintiff's Ex Parte Application, pg. 8, In. 2-8; Comp., 39]. Plaintiff’s declaration merely states that he “believe[s] that [he] would have been approved for a foreclosure avoidance alternative if Wells Fargo, Servicer and Trustee would have complied with HBOR and that the Notice of Trustee’s Sale would not have been recorded if the SPOC was competent and complied with the law.” [See Salazar Dec., 13]. Asa preliminary matter, this assertion fails since Plaintiff was denied a modification because he did not qualify due to his financial ineligibility alone, not any purported HBOR violation or “incompetent” SPOC assignment. [RUSHMORE Dec., §]10-12, 15-23, 28 and Ex.’s 4-6, 11, 14, 18]. Plaintiff utterly fails to set forth any actual facts or evidence to remotely establish how any SPOC’s alleged incompetence interfered with his ability to obtain a modification. Plaintiff also fails to submit any facts or evidence to show that his income documentation submitted to Wells Fargo would have qualified him for a modification, or that Wells Fargo’s denial determination was erroneous in any way. Plaintiff also argues that he “was not assigned a single point of contact that ‘remain[ed] assigned to the borrower’s account until the mortgage servicer determines that all loss mitigation options offered by, or through, the mortgage servicer have been exhausted or the borrower’s account becomes current’ as required by Civil Code § 2923.7.” [Plaintiff’s Ex Parte Application, pg. 8, In. 8-13]. Plaintiff’s conclusory allegations are clearly contradicted by the evidence establishing that at the time the alleged violations occurred, Plaintiff was indeed assigned a SPOC in Ms. Pamela Luna who was the “Home Preservation Specialist” that remained on the account at all pertinent times throughout the modification and short sale reviews. [RUSHMORE Dec., 915-31 and Ex. 9-12, 14, 16-17, 19-20]. Moreover, even if multiple SPOCs were assigned to Plaintiff’s account, this is not a violation of section 2923.7. Under section 2923.7(e), “[f]or purposes of this section, “single point of contact” means an 18 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION | W R I G H T F I N L A Y & ZA K" A T T O R N E Y S AT LA W OO 0 9 AN nh R A W = ND N D D N D N ® J dA x R B B R S 0 8 x d x a R L 0 3 2 individual or team of personnel...” Thus, a SPOC can include multiple individuals from any given loan servicer. Again, Plaintiff fails to establish any actual violation of any kind. And at a minimum, Plaintiff utterly fails to even set forth any facts or evidence to establish how Ms. Luna, or any other SPOC assigned to his account, allegedly “[f]ailed to have access to current information and personnel sufficient to timely, accurately, and adequately inform Plaintiff of the current status of the foreclosure prevention alternatives”, “[f]ailed to ensure that Plaintiff was considered for all foreclosure prevention alternatives offered by, or through, the mortgage servicer”, or “[f]ailed to have access to individuals with the ability and authority to stop foreclosure proceedings when necessary.” Plaintiff provides nothing but baseless conclusory allegations alone which are unavailing and contradicted by the actual evidence. See Garcia v. PNC Mortgage, 2015 WL 534395 at *5 (N.D. Cal. 2015) (claim dismissed as “[plaintiff] does not allege facts sufficient to show that the individuals ... communicated with ... failed to comply with the enumerated statutory responsibilities.”). Even upon a pleading challenge, Plaintiff’s conclusory allegations are insufficient. Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (“We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law...”) (emphasis added). Here, upon a preliminary injunction request, Plaintiff’s allegations are unquestionably deficient. San Francisco Newspaper Printing Co., Inc, supra, at p. 442 (A preliminary injunction cannot be issued unless it is reasonably probable that the moving party will prevail on the merits.); Citizens for Better Streets, supra, at p. 6 (the moving party bears the burden of proof); Korean Philadelphia Presbyterian Church, supra, at p. 1084 (“An injunction...must be supported by actual evidence...”). Plaintiff has not met his evidentiary burden to establish any actual violation of section 2923.7 which could possibly warrant injunctive relief. Furthermore, similar to the section 2923.6 argument above, a violation of section 2923.7 must equally be “material” in order to be actionable. Civil Code §2924.12(a)(1). Here, Plaintiff’s purported violation of section 2923.7 is wholly unsupported by any facts or evidence and is immaterial since Plaintiff was fully reviewed for modification and short sale options and denied due to his lack of finances and below market value purchase offers. [RUSHMORE Dec., 910-12, 15-31 and Ex.’s 3-6, 9-12, 14, 16-20]. Plaintiff fails to submit any facts or evidence in 19 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR PRELIMINARY) INJUNCTION i W R I G H T F I N L A Y & ZA K * A T T O R N E Y S AT LA W No 0 NN O N RA W N N O R RD N O N N N N R = m ® J Ad UL KR O N = SS © ® 9 o R » - ~ oo his moving papers to establish how any purported violation or failure to assign a “competent” SPOC had any effect on his opportunity to obtain a modification or impacted/interfered in any conceivable way with his loss mitigation review. Plaintiff's claim thus fails. See Shumake, supra, Castillo, supra; Foote, supra, Dowling, supra; Celaya, supra; Judan, supra; Montes, supra. Instead, Plaintiff merely reasserts the same exact vacant allegations appearing in his Complaint without any proof or support whatsoever. [Compare Plaintiff’s Ex Parte Application, pg. 8, In. 2-17 to Comp., 939-41]. This is insufficient to establish any actual violation. See Rockridge Trust v. Wells Fargo, N.A. (N.D. Cal., 2013) 2013 WL 5428722, at *27 (dismissing claim because “Plaintiffs have not alleged any damages from this [section 2923.7] violation.”). In addition, section 2923.7(a) only requires action “fujpon request from a borrower...[.]” Garcia, supra, at *5 (“the requirement to establish a single point of contact (or “SPOC”) is triggered only “[u]pon request from a borrower ...”). Plaintiff fails to even establish that he requested a “single point of contact” from Wells Fargo or Defendant which is an express requirement of the statute. Plaintiff’s claim is thus insufficient on its face. And finally, even if any such violation of section 2923.7 had occurred, it was remedied by the rescission of the NOTS. [RIN, Ex. 6]. Plaintiff’s application contends that “the Notice of Trustee’s Sale would not have been recorded if the SPOC was competent and complied with the law.” [Plaintiff's Ex Parte Application, pg. 8, In. 15-17 and Salazar Dec., J13]. Given that the NOTS has now been rescinded, any alleged violation has admittedly been remedied and is moot per the safe harbor provision in Civil Code sections 2924.12(a)(2) and (c). Plaintiff’s claim fails. B. PLAINTIFF’S APPLICATION SHOULD ALSO BE DENIED BECAUSE EQUITABLE CONSIDERATIONS DO NOT SUPPORT INJUNCTIVE RELIEF. In addition to being unable to establish likelihood of success on the merits, as demonstrated above, Plaintiff cannot balance equities in his favor. 1. Plaintiff Comes to the Court With Unclean Hands. To be entitled to injunctive relief, the plaintiff must therefore demonstrate clean hands. Dickson v. Pole (2000) 83 Cal.App.4th 436, 446-47. Here, the evidence demonstrates that Plaintiff’s allegations regarding a failure to respond to his purported “appeal” letter and his allegations regarding a “competent” SPOC assignment are patently false and knowingly untrue. 20 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION IH W R I G H T FI NL AY & ZA K * A T T O R N E Y S AT LA W OO 0 J OO Dn A WwW ND B R N NN R D N N N N N mE m e a e m a e m e m e a 0 N N A W N R O Y N Y RA W N = o Clearly, the legislative intent of HBOR and equity itself does not permit Plaintiff to assert untrue and frivolous allegations solely in an attempt to delay foreclosure. 2. Hardships Do Not Balance in Plaintiff’s Favor. In deciding whether to grant injunctive relief, a court also evaluates “the relative harm to the parties from issuance or non-issuance of the injunction.” Butt v. State of California (1992) 4 Cal.4th 668, 677-78. Here, Plaintiff cannot establish any material violation of the HBOR as detailed above; he was reviewed and denied for modification options in late 2016 and early 2017 due to his lack of finances and denied short sale options as well in late 2017. [RUSHMORE Dec., 10-12, 15-31 and Ex.’s 3-6, 9-12, 14, 16-20]. Plaintiff simply cannot afford the Property and does not qualify for any foreclosure avoidance options, nor is he entitled to a modification or other foreclosure alternative under HBOR. Civil Code §2923.4(a) (“The purpose of the act that added this section is to ensure that, . . . borrowers are considered for, and have a meaningful opportunity to obtain, available loss mitigation options” however, “Nothing in the act that added this section, . . . , shall be interpreted to require a particular result . . . .”). The sale, originally set for June 27, 2017 (RIN, Ex. 4), has now been continued for nearly seven (7) months despite full compliance with the HBOR. If the Court grants Plaintiff's Application, Defendant will be inequitably precluded from proceeding with foreclosure for at least another year until this litigation is resolved despite Plaintiff’s admitted failure to pay his mortgage. All the while, Plaintiff will occupy the Property payment free, forcing Defendant to incur costs and fees, such as property taxes, and precluding Defendant from mitigating damages by recuperating the Property as legally and contractually authorized by the DOT. C. SHOULD THE COURT GRANT PLAINTIFF'S APPLICATION, HE MUST BE REQUIRED TO POST A BOND AND/OR MAKE MONTHLY PAYMENTS. Code of Civil Procedure section 529(a) requires a plaintiff to post a bond in an amount sufficient to “pay to the party enjoined such damages. ..as the party may sustain by reason of the injunction, if the court finally declared that the applicant was not entitled to the injunction.” This requirement is jurisdictional - if the bond is not required or not given, the injunction is void. Neumann v. Moretti (1905) 146 Cal.31; Federal Automotive Services v. Lane Buick Co. (1962) 204 Cal.App.2d 689. In calculating the amount of damages which may be sustained as a 21 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION B W R I G H T F I N L A Y & ZA K * A T T O R N E Y S AT LA W OO xX 9 O N Wn BA W O N N N N N N N N N N em e a e m e a e m e d e m ed pe RX 9 AN Wn p W = O 0 X N N N N R A W N =, oo result of the issuance of an injunction, the Court must consider attorneys’ fees and expenses through trial. Abba Rubber Co. v. Seaquist (1991) 235 Cal.App.3d 1, 15-16. Thus, should the Court issue an injunction, which precludes Defendant from conducting a non-judicial foreclosure of the Property, Defendant requests that Plaintiff be required to issue a bond, at a minimum of $97,823.86, representing the Loan’s arrears of $47,823.86 and the attorneys’ fees and costs likely to be incurred over the next year of litigation of approximately $50,000.00. [RUSHMORE Dec., 435]. In addition, or in the alternative at a minimum, Plaintiff should be required to pay a monthly amount equal to his contractual monthly mortgage payment for Principal/Interest and Escrow of $2,798.84 as a condition to maintaining any injunction. [Dec. of RUSHMORE Dec., §36]. Plaintiff should also be ordered to pay all taxes and hazard insurance premiums as they become due. V. CONCLUSION For all the foregoing reasons, Defendants respectfully request that the Court deny Plaintiff’s request for preliminary injunction in its entire Dated: January 5, 2018 By: Todd/E7( ChvatEsq., Attorney for Defendant, RUSHMORE LOAN MANAGEMENT SERVICES LLC 22 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION No NN O N n n B A W 10 11 12 13 14 | 15 16 17 18 19 20 21 22 23 24 25 26 21 28 PROOF OF SERVICE I, Margaret Augustyniak, declare as follows: I am employed in the County of Orange, State of California. I am over the age of eighteen (18) and not a party to the within action. My business address is 4665 MacArthur Court, Suite 200, Newport Beach, California 92660. I am readily familiar with the practices of Wright, Finlay & Zak, LLP, for collection and processing of correspondence for mailing with the United States Postal Service. Such correspondence is deposited with the United States Postal Service the same day in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. On January 8, 2018, I served the within DEFENDANT’S NOTICE OF OPPOSITION AND OPPOSITION TO PLAINTIFF’S APPLICATION FOR PRELIMINARY INJUNCTION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF on all interested parties in this action as follows: [] by placing [ ] the original [X] a true copy thereof enclosed in sealed envelope(s) addressed as follows: Derik N. Lewis, Esq Barrett, Daffin, Frappier, Treder & Weiss, LLP VANTIS LAW FIRM, APC 20955 Pathfinder Road, Ste 300 120 Vantis Drive, Suite 300 Diamond Bar, California 91765 Aliso Viejo, California 92656 (626) 915-5714 (949) 216-0935 Defendant/Trustee Attorney for Plaintiff Eugene Salazar [] (BY MAIL SERVICE) I placed such envelope(s) for collection to be mailed on this date following ordinary business practices. [X] (BY FEDERAL EXPRESS OVERNIGHT- NEXT DAY DELIVERY) I placed true and correct copies thereof enclosed in a package designated by Federal Express Overnight with the delivery fees provided for. [X] (CM/ECF Electronic Filing) I caused the above document(s) to be transmitted to the office(s) of the addressee(s) listed by electronic mail at the e-mail address(es) set forth above pursuant to Fed.R.Civ.P.5(b)(2)(E). “A Notice of Electronic Filing (NEF) is generated automatically by the ECF system upon completion of an electronic filing. The NEF, when e-mailed to the e-mail address of record in the case, shall constitute the proof of service as required by Fed.R.Civ.P.5(b)(2)(E). A copy of the NEF shall be attached to any document served in the traditional manner upon any party appearing pro se.” [X] (State) I declare under penalty of perjury under the law of the State of California that the foregoing is true and correct. I on January 8, 2018, at Nempox Beach, California. Le Margaret Augustynidk / PROOF OF SERVICE