Spinosi v. Quality Loan Service Corp. CA4/3

Filed 1/31/14 Spinosi v. Quality Loan Service Corp. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

JOEL SPINOSI et al.,

Plaintiffs and Appellants, G047664

v. (Super. Ct. No. 30-2012-00586502)

QUALITY LOAN SERVICE OPINION CORPORATION et al.,

Defendants and Respondents.

Appeal from an order of the Superior Court of Orange County, William M. Monroe, Judge. Affirmed. Law Office of Lenore Albert and Lenore L. Albert for Plaintiffs and Appellants. Severson & Werson, Jan T. Chilton, Eric J. Troutman, Andrew A. Wood and Kerry W. Franich for Defendants and Respondents. * * *

Plaintiffs Joel and Rose Spinosi appeal from the court’s November 15, 2012 order denying their application for a preliminary injunction to enjoin the foreclosure 1 sale of their home. The trial court concluded plaintiffs were unlikely to prevail on the merits. We agree. Accordingly, we affirm the order.

2 FACTS

In April 2007, Joel borrowed $930,000 from SCME Mortgage Bankers, Inc. (SCME), secured by a deed of trust executed by both plaintiffs on their home in Coto

1 Plaintiffs also purport to appeal from the court’s $1,500 sanctions order imposed on their attorney. But the sanctions order is not appealable at this time. (Code Civ. Proc., § 904.1, subd. (b) [sanctions order of $5,000 or less is appealable only after final judgment or by petition for extraordinary writ].) 2 Under Code of Civil Procedure section 527, subdivision (a), a trial court may grant a preliminary injunction based on sufficient grounds shown in either a verified complaint or affidavits. The record contains no affidavit of a party verifying either the complaint or first amended complaint. We therefore take no facts supporting plaintiffs’ injunction application from the allegations of those documents. Furthermore, most of the record references in plaintiffs’ opening brief (they did not file a reply brief) are to documents which were not before Judge Monroe on November 12, 2012, when he ruled on plaintiffs’ injunction application. We grant defendants’ request that we take judicial notice of certain documents related to Joel’s bankruptcy case. We deny plaintiffs’ request for judicial notice of the Federal National Mortgage Association’s (Fannie Mae) Announcement 09-05R since it is irrelevant to the court’s ruling on their preliminary injunction application. The record reflects they did not qualify for the Home Affordable Modification Program. (See West v. JP Morgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 785 [U.S. Dept. of the Treasury implemented the Home Affordable Modification Program to “help homeowners avoid foreclosure during the housing market crises of 2008”].) The record does not show that the Special Forbearance/Workout Agreement between the parties was entered into pursuant to FannieMae’s HomeSaver Forbearance program. To avoid confusion and for ease of reference, we refer to the plaintiffs singularly by their first names. We mean no disrespect.