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HEARING ON PRELIMINARY INJUNCTION
1. CASE # CASE NAME HEARING NAME BASMADJIAN VS AD HEARING ON PRELIMINARY MORTGAGE LLC INJUNCTION Tentative Ruling: Preliminary Injunction is Denied.
The purpose of a preliminary injunction is to preserve the status quo pending trial on the merits. In order to issue a preliminary injunction, the Court must balance the parties’ interests. In balancing the parties’ interests, the Court must exercise discretion “in favor of the party most likely to be injured . . . .” (Robbins v. Superior Court (1985) 38 Cal.3d 199, 205.) The Court is to consider two interrelated factors: (1) the injury to plaintiff in absence of the injunction verses the injury the defendant is likely to suffer if an injunction is issued; and (2) is there a reasonable probability that plaintiffs will prevail on the merits at trial. (Shoemaker v.
County of Los Angeles (1995) 37 Cal.App.4th 618, 633; Robbins, supra, 38 Cal.3d at 206.) “The trial court’s determination must be guided by a ‘mix’ of the potential-merit and interim-harm factors; the greater the plaintiff’s showing on one, the less must be shown on the other to support an injunction.” (Butt v. State of California (1992) 4 Cal.4th 668, 678.) It is the plaintiff’s burden to “show all elements necessary to support issuance of a preliminary injunction.” (O’Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.) “An injunction properly issues only where the right to be protected is clear, injury is impending and so immediately likely as only to be avoided by issuance of the injunction.” (E.
Bay Mun. Util. Dist. v. Cali. Dep’t of Forestry & Fire Prot. (1996) 43 Cal.App.4th 1113, 1126.) “[I]n order to obtain injunctive relief the plaintiff must ordinarily show that the defendant’s wrongful acts threaten to cause irreparable injuries, ones that cannot be adequately compensated in damages.” (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1352.)
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Plaintiff fails to identify what specific portion of this federal statute they contend has been violated in the complaint and ex parte application. Plaintiff’s complaint does identify 12 C.F.R. § 1024. However, this regulation is just a title page, which contains no text or requirements. Based on the allegations in the complaint, what appears to be at issue is 12 U.S.C. § 2605(f) of RESPA through 12 C.F.R. § 1024.41. (“A borrower may enforce the provisions of this section pursuant to section 6(f) of RESPA (12 U.S.C. 2605(f).” (12 C.F.R. § 1024.41(a).)) 12 C.F.R. § 1024.41 requires a servicer to review a loss mitigation application to determine if it is complete, if it is received 45 days or more before a foreclosure sale. (12 C.F.R. § 1024.41(b)(2).)
If a complete application is received more than 37 days before a foreclosure sale, the servicer must evaluate the borrower for all loss mitigation options available and provide the borrower with a writing stating the servicer’s determination of which loss mitigation options, if any, will be offered. (Id. at (c).)
Plaintiff provides no evidence to establish a violation of RESPA or application regulations. Plaintiff.s declaration contains nothing but conclusory statements. Plaintiff provides no factual information that would support a violation. There are no factual allegations to support that Plaintiff prepared complete applications or submitted them to A&D. In opposition, A&D has provided evidence that applications were received, reviewed, and responded to. As such, Plaintiff has failed to establish a reasonable probability of prevailing on this cause of action.
The second cause of action is for violation of Business & Professions Code § 17200. The California Unfair Competition Law (Bus. & Prof. Code § 17200) (“UCL”) defines unfair competition as including “any unlawful, unfair or fraudulent business act or practice.” An act is unlawful if it violates rules set out in other laws. (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 610.) “An unfair business practice occurs when the practice offends an established public policy or when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.” (Podolsky v.
First Healthcare Corp. (1996) 50 Cal. App. 4th, 632, 647.) Fraud under the statute is not the same as common law fraud. (Olsen v. Breeze, Inc. (1996) 48 Cal.App.4th 608, 618.) Fraud under UCL only requires a showing that members of the public are likely to be deceived by the business practice. (Id.) The UCL is sweeping, embracing anything that can properly be called a business practice and that at the same time is forbidden by law. (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1143.) “The UCL was enacted ‘to protect both consumers and competitors by promoting fair competition in commercial markets for goods and services.’” (Linear Technology Corp. v.
Applied Materials, Inc. (2007) 152 Cal.App.4th 115, 135, citing Kasky v. Nike, Inc. (2002), 27 Cal.4th 939, 949.) To have standing to bring a cause of action under Business & Professions Code § 17200, the plaintiff must have suffered injury and lost money or property. (Daro v. Superior Court (2007)151 Cal.App.4th 1079, 1098-1099.) The economic injury must be caused by the defendant’s wrongful conduct. (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 321-322.)
This cause of action again pertains to defendants’ alleged failure to comply with loss mitigation requirements. (Complaint, ¶ 30.) As discussed above, Plaintiff has failed to provide any evidence to support such an assertion. Plaintiff again fails to establish a reasonable probability of prevailing on this claim.
The third cause of action for wrongful foreclosure is based on the same allegations of failure to comply with loss mitigation requirements. A wrongful foreclosure claim requires a wrongful sale of the property pursuant to the power of sale in the deed of trust, the plaintiff suffered prejudice or harm, and the plaintiff tendered the amount of the secured indebtedness or was excused from tender. (Chavez v. Indymac Mortgage Services (2013) 219 Cal.App.4th 1052, 1062.) As discussed above, Plaintiff has failed to provide evidence regarding A&D’s failure to comply with loss mitigation requirements. Additionally, a foreclosure has not yet occurred. Due to this, there is no reasonable probability that Plaintiff will prevail on this claim.
Plaintiff’s last claim is for an accounting. “A cause of action for an accounting requires a showing that a relationship exists between the plaintiff and defendant that requires an accounting, and that some balance is due the plaintiff that can only be ascertained by an accounting.” (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 179.) The complaint alleges that the amount claimed by A&D is inaccurate and inflated. Plaintiff has failed to provide any evidence to support this assertion. Again, Plaintiff only generically contends that the amount is inaccurate and inflated.
However, Plaintiff provides no facts to support these conclusions. They do provide several notices of trustee’s sale. One indicates in 2024, $142,023.27 is due under a deed of trust. The other two indicate that over $800,000 were due in 2025 and 2026. However, these notices of trustee’s sales do not all pertain to the same deed of trust. It appears that Plaintiff’s property is secured by two deeds of trust. As such, these differing amounts do nothing to establish that Plaintiff is owed an accounting.
Plaintiff also provides a mortgage statement, which appears to indicate that the principle owed is over $700,000. This amount is less than the total amount set forth in the two notices of trustee’s sales that appear applicable to the loan at issue. However, the mortgage statement does not indicate the amount of interest, late payment, and other fees owed. As such, the fact that this amount fails to match the amount on the notices of trustee’s sales also do not establish with a reasonable probability that Plaintiff will prevail on this claim.
Since Plaintiff has failed to establish a reasonable probability of prevailing on any of the claims, this motion is denied.