Chamberlain v. Specialized Loan Servicing, LLC

• Court: District Court, N.D. California
• Decided: June 10, 2021
• Docket: 4:21-cv-03541
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 WILLIAM CHAMBERLAIN, Case No. 21-cv-03541-HSG

8 Plaintiff, ORDER DENYING APPLICATION FOR TEMPORARY RESTRAINING 9 v. ORDER

10 SPECIALIZED LOAN SERVICING, LLC, Re: Dkt. No. 21 et al., 11 Defendants. 12 13 Pending before the Court is Plaintiff William Chamberlain’s ex parte application for a 14 temporary restraining order (“TRO”), filed on June 2, 2021. Dkt. No. 21. For the following 15 reasons, the application is DENIED. 16 I. LEGAL STANDARD 17 Under Federal Rule of Civil Procedure 65, a temporary restraining order may enjoin 18 conduct pending a hearing on a preliminary injunction. See Fed. R. Civ. P. 65(b). The standard 19 for issuing a temporary restraining order and issuing a preliminary injunction are substantially 20 identical. Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 21 2001). A plaintiff seeking preliminary relief must establish: (1) that he is likely to succeed on the 22 merits; (2) that he is likely to suffer irreparable harm in the absence of preliminary relief; (3) that 23 the balance of equities tips in his favor; and (4) that an injunction is in the public interest. Winter 24 v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008). Preliminary relief is “an extraordinary remedy 25 that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Id. at 26 22. A court must find that “a certain threshold showing” is made on each of the four required 27 elements. Leiva-Perez v. Holder, 640 F.3d 962, 966 (9th Cir. 2011). Under the Ninth Circuit’s 1 the merits” if “a hardship balance [also] tips sharply towards the [movant],” and “so long as the 2 [movant] also shows that there is a likelihood of irreparable injury and that the injunction is in the 3 public interest.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). 4 II. DISCUSSION 5 On June 2, 2021, Plaintiff filed this ex parte application, seeking to enjoin the foreclosure 6 sale of the property located at 2201 Melvin Road, Oakland, California 94602 (the “Property”), that 7 is scheduled for June 14, 2021. Dkt. 21. Although Plaintiff brought claims against multiple 8 Defendants, he acknowledges that Defendant Specialized Loan Servicing LLC (“SLS”) “is the 9 current servicer of his Loan” for the Property. Dkt. No. 1-2 (“FAC”) ¶ 6. As such, the requested 10 temporary restraining order would enjoin SLS from foreclosing on the Property.1 Plaintiff has not, 11 however, demonstrated a likelihood of success on the merits as to SLS. 12 Plaintiff alleges five causes of action against SLS. The first four causes of action allege 13 violations of the Real Estate Settlement Procedures Act (“RESPA”) claiming that SLS allegedly 14 failed to provide Plaintiff with accurate loss mitigation options and failed to respond in writing to 15 Plaintiff’s appeals of SLS’s loan modification determinations. FAC, ¶¶ 27-51. The last cause of 16 action is a derivative California Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17 17200 et seq, claim based on the alleged RESPA violations. FAC, ¶¶ 52-60. 18 SLS argues that Plaintiff’s claims fail because the RESPA protections that Plaintiff seeks 19 to invoke do not apply to the loan at issue here. Dkt. No. 26 (“Opp.”) at 8-9. The provisions of 20 RESPA cited by Plaintiff in the FAC apply to “any federally related mortgage loan, as that term is 21 defined in § 1024.2 subject to the exemptions in § 1024.5(b), but do[] not include open-end lines 22 of credit (home equity plans).” 12 C.F.R. § 1024.31 (emphasis added); see also 12 C.F.R. § 23 1024.30 (specifying that “this subpart applies to any mortgage loan, as that term is defined in § 24 1024.31”). In the FAC, Plaintiff specifically alleges that his loan is “a Home Equity Line of 25 Credit.” FAC ¶ 11. Similarly, Plaintiff’s declaration in support of his TRO application states that 26

27 1 Defendant Bank of America confirmed with Plaintiff’s counsel that the temporary restraining 1 he “obtained a Home Equity Line of Credit.” Dkt. No. 21-1 ¶ 4. Plaintiff provides no explanation 2 in his TRO application as to why his home equity line of credit does not fall into the exemption for 3 “open-end lines of credit (home equity plan).”2 4 SLS has also requested judicial notice of two deeds of trust, including the deed of trust 5 referenced by Plaintiff in the FAC and declaration. Dkt. Nos. 28; 28-1; 28-2. The Courts finds 6 that judicial notice is appropriate because the deeds of trust are matters of public record, not 7 generally subject to dispute. Khoja v. Orexigen Therapeutics, 899 F.3d 988, 999 (9th Cir. 2018); 8 see also, e.g., Perez v. Am. Home Mortg. Servicing, Inc., No. C 12-00932 WHA, 2012 WL 9 1413300, at *2 (N.D. Cal. Apr. 23, 2012) (taking judicial notice of deed of trust, notice of default, 10 assignment of deed of trust, and substitution of trustee, all recorded with Alameda County 11 Recorder’s Office). Further, these deeds of trust “form[] the basis of plaintiff’s claim” and are 12 thus appropriate to incorporate by reference. Id. at 1002. 13 The deed of trust and assignment of rents, recorded in Alameda County on November 23, 14 2005, confirms SLS’s argument that Plaintiff’s loan was an open-end home equity line of credit. 15 See Dkt. No. 28-2 at ECF 3 (referencing “a revolving credit agreement” secured by the Property). 16 Given Plaintiff’s own allegations that the loan was a home equity line of credit, and the 17 judicially-noticeable documents provided by SLS, the Court finds that Plaintiff has failed to make 18 a clear showing that his loan was subject to the provisions of RESPA that form the basis of his 19 federal claims and his derivative UCL claim. Accordingly, the Court finds that Plaintiff has not 20 established a likelihood of success on the merits of his claims, or even raised “serious questions 21 going to the merits” such that the Court need examine the other prongs of the preliminary 22 injunction test. See All. for the Wild Rockies, 632 F.3d at 1131-1132. 23 24 2 Plaintiff was made aware of SLS’s argument that his loan was not protected by the provisions of 25 RESPA that form the basis of his claim well before he filed his TRO application. SLS’s arguments in its opposition to the TRO are substantially similar to the arguments made by SLS in 26 its motion to dismiss, filed on May 19, 2021. Dkt. No. 8. The deadline for Plaintiff to oppose, or otherwise respond to, SLS’s motion to dismiss was June 2, 2021. Id. Plaintiff failed to respond to 27 the motion to dismiss by June 2. Instead, Plaintiff filed the TRO application on that date. Dkt. 1 Wl. CONCLUSION 2 Plaintiff has not demonstrated that the extraordinary relief of a temporary restraining order 3 is warranted, and his ex parte application is DENIED. 4 IT IS SO ORDERED. 5 Dated: June 10, 2021 6 Abppurrd 5 Mt). HAYWOOD S. GILLIAM, JR. 7 United States District Judge 8 9 10 11 a 12

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