Min v. Selene Finance, LP

• Court: District Court, N.D. California
• Decided: April 8, 2024
• Docket: 3:23-cv-06335
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CHO UNG MIN, Case No. 23-cv-06335-WHO

8 Plaintiff, ORDER GRANTING PRELIMINARY 9 v. INJUNCTION

10 SELENE FINANCE, LP, and RUSHMORE Re: Dkt. No. 5 LOAN MANAGEMENT, LLC; and DOES 11 1 through 10, inclusive, Defendants. 12

13 This matter comes before the court on plaintiff Cho Ung Min’s motion for a temporary 14 restraining order and preliminary injunction to stop the foreclosure of his residence. Because he 15 has shown (1) serious questions going to the merits of several of his claims; (2) that he is likely to 16 suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in 17 his favor; and (4) that granting the relief is in the public interest, his motion for preliminary 18 injunctive relief is GRANTED. 19 BACKGROUND 20 Min is the owner of real property located at 7229 Shannon Park Court, South San 21 Francisco, CA 94080 (the “Property”), which he acquired in 2004. See Declaration of Cho Ung 22 Min in Support of Ex Parte Application for a Temporary Restraining Order (“Min Decl.”) ¶1; see 23 also Ex Parte Application for a Temporary Restraining Order (“Ex Parte App.”) [Dkt. No. 5]; First 24 Amended Complaint (“FAC”) [Dkt. No. 26] ¶¶ 13-14.1 In “summer or early fall 2020,” Min was 25 26

27 1 Min did not file a separate motion for preliminary injunction, but he did file the First Amended 1 current in his mortgage payments when he began experiencing a financial hardship because of the 2 COVID-19 pandemic. Min Decl. ¶ 3. Around that time, defendant Rushmore Loan Management 3 (“Rushmore”) approached Min regarding mortgage assistance. Id. ¶ 6. When Rushmore 4 approached Min, he was still current on his mortgage payments. Id. ¶ 7. 5 Min states that as part of these initial conversations, “Rushmore representatives assured 6 [him] that numerous customers were going on forbearance and that, at the end of the forbearance 7 term, all payments owed on the loan through the end of the forbearance plan would be added to 8 the end of Plaintiff’s mortgage loan” as a “non-interest-bearing balance due on the maturity date 9 or when the loan is otherwise paid off.” Id. ¶ 8; FAC ¶ 19. Min alleges that based on these 10 representations, he “unequivocally understood that he could stop making payments and then 11 resume his regularly scheduled payments once he came off forbearance.” Min Decl. ¶ 9. As a 12 result of this understanding, Min entered into a forbearance plan and stopped making payments. 13 Id. ¶ 10. 14 Min took steps to regain financial security in the wake of the pandemic and was able to 15 resume his roughly $4,200 per month mortgage payment. Id. ¶¶ 13-15. He contacted his loan 16 servicer to resume mortgage payments. Id. ¶ 15. By that time, defendant Selene Finance 17 (“Selene”) had taken over as his loan servicer. Id. But Selene refused to accept the regular 18 mortgage payment and instead demanded “the full balance owed of approximately $70,000 to 19 $80,000.” Id. ¶ 16. Min claims that if he had known that his mortgage servicer would not honor 20 the arrangement “he would not have entered into the forbearance plan and would have arranged 21 for another solution to his temporary financial hardship.” Id. ¶ 17. 22 Concerned about what would happen if he did not make regular payments, Min contacted 23 Selene to ask about how he should make payments. Selene informed him that his loan was in 24 “past due status” and that “even the regular monthly payments were considered partial payments,” 25 which it would not accept. Id. ¶ 16. Selene informed Min that the loan was in default, and it 26 would be proceeding to foreclosure. Id. 27 Neither Rushmore nor Selene brought Min’s loan current after the forbearance agreement 1 has pursued loan modification with Selene. Id. ¶ 19. But he contends that “for more than a year, 2 Selene has lost [his] loan modification application materials and asked [him] to resubmit 3 application materials he had resubmitted on several occasions.” Id. ¶ 20. 4 Min also states that throughout the loan modification application process, he was never 5 provided with a single point of contact that he could consistently reach to communicate about the 6 application process, the status of the loan, or the status of his foreclosure prevention alternative 7 applications. Id. He claims that he was “unable to reach his assigned relationship manager and 8 was often transferred between different individuals with no knowledge of his account.” Id. 9 All of this placed him in what he describes as a “worse position on his mortgage loan than 10 he was in when the Covid forbearance plan began.” Id. ¶ 23. Min claims that he “would not have 11 gone into the forbearance plan if he knew what his loan servicer would demand at the end of the 12 plan or that he would end up risking his home as a result of doing so.” Id. 13 Selene intended to conduct a Trustee’s Sale on December 27, 2023, which was enjoined 14 when I granted Min’s request for a temporary restraining order on December 20, 2023. See Dkt. 15 No. 11. Selene responded to the court’s Order to Show Cause, see Dkt. No. 22, and filed a motion 16 to dismiss the plaintiff’s First Amended Complaint, which it has since withdrawn. See Dkt. Nos. 17 26, 28, 38. Rushmore did not respond separately to the Order to Show Cause but did file a motion 18 to dismiss, which it has also withdrawn. See Dkt. Nos. 30, 36. Both parties contest entry of 19 preliminary injunctive relief. 20 LEGAL STANDARD 21 In order to obtain a preliminary injunction, a plaintiff must demonstrate four factors: (1) 22 “that he is likely to succeed on the merits,” (2) “that he is likely to suffer irreparable harm in the 23 absence of preliminary relief,” (3) “that the balance of equities tips in his favor,” and (4) “that an 24 injunction is in the public interest.”2 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). 25 While this is a four-part conjunctive test, the Ninth Circuit has held that a plaintiff may also obtain 26 an injunction if it has demonstrated “serious questions going to the merits,” that the balance of 27 1 hardship “tips sharply” in its favor, that it is likely to suffer irreparable harm, and that an 2 injunction is in the public interest. See All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131- 3 35 (9th Cir. 2011).3 Injunctive relief is “an extraordinary remedy that may only be awarded upon 4 a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22. 5 DISCUSSION 6 MIN IS ENTITLED TO INJUNCTIVE RELIEF 7 A. Serious Questions Going to the Merits 8 Min asserts several claims, including some under provisions of the California Homeowner 9 Bill of Rights (“HBOR”). His first cause of action alleges that the defendants did not properly 10 provide a “single point of contact,” in violation of Cal. Civ. Code § 2923.7; the second asserts that 11 Rushmore failed to properly advise him about forbearance guidelines for non-federally backed 12 loans, in violation of Cal. Civ. Code § 3273.11; the third claims that the defendants interfered with 13 his right to reinstate his loan in violation of Cal. Civ. Code §§ 2924(c)-(d); the fourth, fifth, and 14 sixth causes of action allege that defendants acted in bad faith and that Rushmore negligently 15 misrepresented the terms of its forbearance plan, and also states a claim for promissory estoppel 16 based on his reliance on what he says were misrepresentations; the seventh cause of action alleges 17 that Selene failed to honor his first lien loan modification or other foreclosure prevention 18 alternative from Rushmore in violation of Cal. Civ. Code § 2924.11(g); and the eighth cause of 19 action asserts that both defendants violated California’s unfair competition law (the “UCL”) by 20 engaging in unlawful business practices, as described in claims one through seven.4 21 There are serious questions going to the merits of several of these claims. I discuss a few 22 of them below. 23 1. The Effect of the Forbearance Agreement 24 As a preliminary matter, Selene contends that a preliminary injunction is not justified 25 3 For ease of reference, I will refer to this interpretation of the Winter factors by the Ninth Circuit 26 as the “Cottrell Test.”

27 4 Min includes a negligent misrepresentation claim against Rushmore Loan Management in the 1 because the text of the Forbearance Agreement that Min entered with Rushmore does not provide 2 that Min could “resume making regular payments” at the end of the forbearance period and he 3 therefore has no claims. See Selene Finance’s Response to OSC and Opposition to Plaintiff’s 4 Request for Preliminary Injunction (“Response”) [Dkt. No. 22] 2:3-6. 5 Min does not ground his claims in the text of the Forbearance Agreement. His claims are 6 based in the misrepresentations that Min states Rushmore representatives made to him, prompting 7 him to enter into the Forbearance Agreement, and in what he describes as both defendants’ failures 8 to adhere to proper communication procedures when handling his loan modification applications. 9 See Min Decl. ¶¶ 8-9, 16, 20; see also Ex Parte App. 2. 10 The Forbearance Agreement provides: “Once the forbearance is over, any suspended 11 payments will need to be repaid or otherwise accounted for through a more permanent workout 12 option.” Dkt. 23-1 (Forbearance Agreement). But the text of this agreement, signed by Min, does 13 not invalidate his claims. Min states that a Rushmore representative informed him that at the end 14 of the forbearance period he would be able to resume regular payments and that the skipped 15 payments would be tacked on to the end of his loan. See Min Decl. ¶ 8. Min says that he 16 reasonably understood that arrangement to be reconcilable with the written Forbearance 17 Agreement and that he relied on that representative’s communication when he decided to enter 18 into the Forbearance Agreement. Id. ¶ 9. He claims that “had [he] known that [his] mortgage 19 servicer wouldn’t have honored the arrangement, [he] would not have entered into the forbearance 20 plan.” Id. ¶ 17. 21 At the hearing on February 28, 2024, Selene protested through counsel that there is no 22 record of the conversations where Rushmore representatives supposedly communicated to Min 23 that the payments he missed during the forbearance period would be tacked on to the end of his 24 mortgage payment as a non-interesting bearing balance. But at this stage, Min’s declaration, 25 together with the defendants’ inability to affirmatively disprove his allegations about the alleged 26 misrepresentations by Rushmore representatives, is sufficient to raise serious questions about how 27 Min reasonably understood the Forbearance Agreement. 2. Failure to Properly Provide Single Point of Contact 1 Min asserts several claims for violations of different provisions of the HBOR. His claim 2 for the alleged violation of Cal. Civ. Code § 2923.7 (and his claim for UCL violations arising from 3 the same) raises a serious question given the facts alleged. 4 According to Min’s ex parte application, both defendants violated California Civil Code § 5 2923.7, which requires the lender to assign a Single Point of Contact (“SPOC”) when a borrower 6 requests a foreclosure prevention alternative and provide “one or more direct means of 7 communication with that SPOC.” Cal. Civ. Code § 2923.7(a); Ex Parte App. 6. The purpose of 8 this is to “prevent[] borrowers from being given the run around.” Nasseri v. Wells Fargo Bank, 9 N.A., 2015 WL 7429447-WHA, at *5 (N.D. Cal. Nov. 23, 2015) (holding that the plaintiff stated a 10 claim where she alleged that the SPOC gave her misleading information). Min states that 11 Rushmore’s representatives “failed to carry out the duties assigned to a single point of contact by 12 erroneously advising [Min] about what to expect regarding the status of the loan and [his] payment 13 obligations at the end of the forbearance period.” Ex Parte App. 7:12-18; Min Decl. ¶¶ 8-9. He 14 also contends that Selene’s representatives failed to carry out the duties assigned to a SPOC; he 15 was unable to reach his assigned relationship manager, was often transferred between individuals 16 with no knowledge of his account, and had to repeatedly resubmit application materials after 17 Selene allegedly lost them. Min Decl. ¶ 20. 18 The record reveals serious questions going to the merits of this claim. Neither defendant 19 has produced evidence showing that Min was timely provided with a SPOC in compliance with 20 the law. Selene has produced one email that it says demonstrates that Min was assigned a SPOC, 21 but that email only shows that in July 2023, Selene told Min that a SPOC had been assigned to 22 him. See Declaration of Jessica Edwards in Opposition to Temporary Restraining Order 23 (“Edwards Decl.”) [Dkt. No. 23] Ex. J. This letter was sent nearly one year after Min first started 24 trying to get loan modification. See Edwards Decl. Exs. D-I (showing that Min reached out to 25 Selene asking about loan modification at least as early as June 2, 2022). It does not prove that 26 Min was timely provided a SPOC. 27 Additionally, Selene offers no response to Min’s allegation that he was not provided a 1 direct means of contact to any SPOC that he was assigned, since he was “unable to reach his 2 assigned relationship manager and was often transferred between different individuals with no 3 knowledge of his account.” Reply in Support of OSC re: Issuance of Preliminary Injunction 4 (“Reply”) [Dkt. No. 27] 4:17-22. Even if Selene did assign him a single point of contact in a 5 timely manner, the record suggests that it may still have violated section 2923.7(a) by failing to 6 provide Min with a direct line of communication to that individual. 7 Selene opposes on several other grounds, but each is unconvincing. First, it argues that it 8 was not Selene’s responsibility to bring the loan current at the end of the forbearance term because 9 the last forbearance term expired while his loan was still being serviced by Rushmore. See 10 Response 6:4-11. This has no bearing on Min’s likelihood of success on a section 2923.7 claim. 11 Once Selene became Min’s loan servicer, it had an obligation to provide him with a SPOC to 12 discuss loan modification requests. See Cal. Civ. Code § 2923.7. Moreover, even if it were not 13 Selene’s obligation to bring the loan current, this does not dispose of potential claims against 14 Rushmore and is an ineffective argument against preliminary injunction. 15 Second, Selene argues that since Min did submit loan modification applications, he could 16 not have suffered from lack of a SPOC. This logical leap comes up short and the caselaw that 17 Selene cites in support is inapposite. In Cordero v. U.S. Bank, N.A., the plaintiff acknowledged 18 that he was “in contact” with the loan servicer and was “able to submit an application for loan 19 modification.” Codero v. U.S. Bank, N.A., 2014 WL 4658757, at *5 (S.D. Cal. Sept. 17, 2014). 20 There, the plaintiff argued that section 2923.7 “impose[d] a duty on the single point of contact to 21 ‘describe the foreclosure process, answer questions in a timely and effective manner, and 22 [provide] updates on the status of [a borrower's] home.’” Id. The court in Cordero determined that 23 section 2923.7 did not impose so strict a duty, but rather that it requires that the SPOC “be 24 knowledgeable of possible foreclosure prevention alternatives to ensure ‘the borrower is 25 considered for all foreclosure prevention alternatives offered by, or through, the mortgage 26 servicer.’” Id. (internal quotations and citations omitted). 27 Here, Min has not tried to read as strict a requirement into section 2923.7 as the plaintiff in 1 modification application like that plaintiff did. Quite the contrary: Min states that Selene 2 repeatedly lost his application materials and requested resubmissions. See Min Decl. ¶ 20. And 3 Selene has provided no evidence that Min was provided with a SPOC before July 2023, over a 4 year after he started communicating with Selene about loan modification. 5 Finally, Selene contends that even if Min were deprived of a SPOC his injury was not 6 material. The authority Selene cites in support is easily distinguishable on the facts. In Asturias v. 7 Nationstar Mortgage LLC, the court determined that the plaintiffs had not stated a viable claim for 8 a material violation of section 2923.7 because they had not provided “any information” regarding 9 date of contact, how they initiated contact, “or even from whom a foreclosure prevention 10 alternative was sought,” and had not alleged any specific harm. See Asturias v. Nationstar 11 Mortgage LLC, 2016 WL 1610963-RS, at *5 (N.D. Cal. Apr. 22, 2016). In contrast, Min (1) 12 alleges that when Rushmore contacted him about the forbearance plan, he sought foreclosure 13 prevention alternatives; (2) has shown evidence suggesting that he was not assigned a SPOC in a 14 manner that complied with California law; and (3) has alleged the very specific harm of imminent 15 foreclosure were this preliminary injunction request to be denied. Serious questions going to the 16 merits of his section 2923.7 claim weigh in favor of granting the preliminary injunction. 17 3. Failure to Adequately Advise About the Impact of the Forbearance Plan 18 California Civil Code § 3273.11(c) provides, “with respect to a non-federally backed loan, 19 any mortgage servicer, mortgagee, or beneficiary of the deed of trust, or authorized agent thereof, 20 who, regarding borrower options following a COVID-19 related forbearance, reviews a customer 21 or a solution that is consistent with the guidance to servicers, mortgagees, or beneficiaries 22 provided by Fannie Mae, Freddie Mac, the Federal Housing Administration of the Department of 23 Housing and Urban Development, the Department of Veterans Affairs, or the Rural Development 24 division of the Department of Agriculture, including any amendments, updates or revisions to such 25 guidance, shall be deemed to be in compliance with this section.” Cal. Civ. Code § 3273.11(c). 26 Min states that Rushmore failed to properly advise him about his options at the end of 27 forbearance in violation of federal guidance published by Freddie Mac and Fannie Mae. He cites 1 federal guidance provided by Freddie Mac and Fannie May for COVID-19 related forbearance, 2 which includes instructions for all affected borrowers. These instructions include requiring the 3 servicer to explain and educate the impacts of starting a forbearance account. He alleges that by 4 “erroneously advising Plaintiff of his options at the end of the forbearance period,” Rushmore 5 “failed to adequately advise [him] on the impact that the forbearance plan would have on [his] 6 loan” and as a result, Min now faces the loss of his property to foreclosure. See Min Decl. ¶¶ 7-10 7 (stating that it was “absolutely clear” to Min, based on Rushmore’s representations, that he could 8 “stop making payments” as part of the forbearance plan and then “resume regularly scheduled 9 payments” once it ended); see also FAC ¶ 63. 10 Rushmore produced no evidence refuting this claim; it has only asserted that Min can 11 produce no evidence of the communication with its representative where that representative 12 allegedly misrepresented the terms of the Forbearance Agreement to him. The credibility of Min’s 13 assertions will be addressed at trial. There are at least serious questions going to the merits of this 14 claim. 15 4. Violation of the UCL 16 To state a claim under Business and Professions Code § 17200, et seq. (“UCL”), a plaintiff 17 must allege a given defendant engaged in an “unlawful, unfair or fraudulent business act or 18 practice” which caused the plaintiff to suffer “injury in fact” and “lost money or property.” Bus. & 19 Prof. Code § 17204. In stating a cause of action based on an unlawful business practice under the 20 UCL, a plaintiff must allege facts sufficient to show a violation of some underlying law. 21 Prakashpalan v. Engstrom, Lipscomb and Lack, 223 Cal. App. 4th 1105, 1133 (2014). 22 As explained above, Min has raised serious questions going to the merits of several of his 23 claims for violations of California statutes that have caused him to suffer “injury in fact” in that he 24 is at risk of losing his home. As such, there are also serious questions as to the merits of his UCL 25 claim to the extent that it is derived from these violations of the HBOR. 26 5. Bad Faith 27 The record raises serious questions about whether Rushmore breached the implied promise 1 (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) damage 2 to plaintiff therefrom. See Abdelhamid v. Fire Ins. Exch., 182 Cal. App. 4th 990, 999 (2010). But 3 “[a] claim for breach of the implied covenant of good faith and fair dealing requires the same 4 elements [as a claim for breach of contract], except that instead of showing that defendant 5 breached a contractual duty, the plaintiff must show, in essence, that defendant deprived the 6 plaintiff of a benefit conferred by the contract in violation of the parties’ expectations at the time 7 of contracting.” Levy v. JP Morgan Chase, 2010 WL 4641033, at *3 (S.D. Cal. Nov. 5, 2010). 8 Min argues that since he was in a contractual relationship with the defendants via the Deed 9 of Trust and service agreements, they had a contractual obligation to refrain from hindering his 10 performance under the contract. He argues that the record shows that both defendants interfered 11 with his ability to perform on the contract by misrepresenting its terms and failing to communicate 12 properly with him about loan application, thus forcing his breach and causing his damages. 13 For its part, Selene responds that Min’s bad faith claim cannot prevail because the 14 Forbearance Agreement does not say what the plaintiff says it does. Selene contends that “there 15 are simply no facts alleged showing Plaintiff entered into an agreement with Selene, what its terms 16 were, how Selene breached them, and what damages resulted.” Oppo. 11. Min counters that his 17 bad faith claim is not based on the text of the Forbearance Agreement, but rather on the Deed of 18 Trust, insofar as it states that: “Borrower shall pay when due the principal of, and interest on, the 19 debt evidence by the Note and any prepayment charges and late charges due under the Note.” 20 Reply 8:16-21; see also Ex Parte App. 10:7-9; Compl. ¶ 77; Def’s RJN (Deed of Trust, section 1). 21 Selene argues, however, that the Deed of Trust is inapplicable to its relationship with Min, and 22 that he has produced no “servicing contract” between himself and Selene. At least at this stage, 23 that appears to be true. 24 On the other hand, Rushmore’s actions as alleged by Min—approaching him about a 25 forbearance plan, enticing him into it, and representing that his payments would be added to the 26 end of the mortgage plan when that was disallowed by the next loan servicer—plausibly induced 27 Min into default on the loan and interfered with his ability to make regular payments on the loan. 1 regarding its contract with Min. 2 B. Irreparable Harm 3 In addition to showing at least serious questions going to the merits of his claims, to obtain 4 a preliminary injunction a plaintiff must demonstrate that he is likely to suffer irreparable harm in 5 the absence of such relief. See Winter, 555 U.S. at 20. The Ninth Circuit has cautioned that 6 “[s]peculative injury does not constitute irreparable injury sufficient to warrant granting a 7 preliminary injunction.” Caribbean Marine Servs. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988). 8 As a general rule, a plaintiff seeking injunctive relief must demonstrate that “remedies available at 9 law, such as monetary damages, are inadequate to compensate” for the injury. Herb Reed Enters., 10 LLC v. Fla. Entm’t Mgmt., 736 F.3d 1239, 1249 (9th Cir. 2013). 11 “[I]t is well-established that the loss of an interest in real property constitutes an irreparable 12 injury.” Park Village Apartment Tenants Ass’n v. Mortimer Howard Trust, 636 F.3d 1150, 1159 13 (9th Cir. 2011) (collecting cases regarding evictions and foreclosures); see also Jackmon v. 14 America's Servicing Co., 2011 WL 3667478 at *3 (N.D. Cal. 2011) (“It is undisputed that 15 plaintiffs are harmed if they are evicted from their homes or undergo a foreclosure sale.”). The 16 harm Min faces is immediate. Selene initially communicated to Min that it would conduct a 17 Trustee’s Sale on December 27, 2023, an action that was only prevented by the TRO. Selene still 18 intends to foreclose upon Min’s home. An eviction would be extremely disruptive to Min’s life, 19 as he and his wife would be displaced from their only home and he would lose approximately 20 $500,000 of equity in his home. Min Decl. ¶¶ 24-25. Wrongful eviction is not an injury for which 21 remedies available at law are adequate. The risk of irreparable harm to Min weighs heavily in 22 favor of granting the preliminary injunction. 23 C. Balance of Hardships 24 The third Winter factor asks whether the balance of hardships tips in the favor of the party 25 seeking preliminary relief. Here, it does. The harm that Min will suffer should he be foreclosed 26 upon far outweighs the harm to defendants if that foreclosure is delayed pending the resolution of 27 this case. Min has been attempting to resolve his delinquency by applying for various foreclosure 1 Decl. ¶¶ 14-16, 20. He did not stop making payments for no reason; he entered into a Forbearance 2 Agreement that he believed was the best option for him during a difficult time, and fully intended 3 to resume regular payments on his mortgage with Selene once that forbearance period ended. 4 Defendants do not argue to the contrary; in fact, Selene did not address the balance of hardships 5 argument in its response to this court’s order to show cause. The balance of hardships is in Min’s 6 favor. 7 D. Public Interest 8 Finally, “‘[i]n exercising their sound discretion, courts of equity should pay particular 9 regard for the public consequences in employing the extraordinary remedy of injunction.’” Winter, 10 555 U.S. at 24 (citing Weinberger v. Romero–Barcelo, 456 U.S. 305, 312 (1982)). There is of 11 course some public interest in enforcing Selene’s secured property interest to the extent that it is 12 valid. But it pales in comparison with the public interest in lenders’ compliance with the HBOR, 13 which was enacted in California “to ensure that, as part of the nonjudicial foreclosure process, 14 borrowers are considered for, and have a meaningful opportunity to obtain, available loss 15 mitigation options, if any, offered by or through the borrower's mortgage servicer, such as loan 16 modifications or other alternatives to foreclosure.” Cal. Civ. Code § 2923.4. 17 The “public interest favors vindicating the [California] Legislature's intent ‘to have 18 individual borrowers and lenders “assess” and “explore” alternatives to foreclosure.’ ” Magana v. 19 Wells Fargo Bank, N.A., No. C 11–03993 CW, 2011 WL 4948674, at *2 (N.D. Cal. Oct. 18, 2011) 20 (quoting Mabry v. Superior Court, 185 Cal. App. 4th 201, 223 (2010)). Given the record at this 21 stage, the public interest favors granting Min’s motion for injunctive relief. 22 * * * * 23 Applying the “serious questions” sliding scale approach that the Ninth Circuit approved in 24 Cottrell, I will issue a preliminary injunction to enjoin the foreclosure sale of the Property. The 25 serious questions raised by Min’s claims, the irreparable injury he will face if the motion is 26 denied, the balance of hardships, and the public interest all support it. 27 CONCLUSION 1 servants, employees, and all persons acting in concert with the defendants or on the defendants’ 2 || behalf, are enjoined from directly or indirectly initiating foreclosure proceedings on the Property 3 || pending further order of the court.° 4 IT IS SO ORDERED. 5 || Dated: April 8, 2024

7 ® William H. Orrick 8 United States District Judge 9 10 11 12

Z 18 19 20 21 22 23 24 25 26 > Under Rule 65, “[t]he court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and 7 damages sustained by party found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). Defendant Selene has a secured interest in the property and will be permitted to proceed 2g || with foreclosure if Min’s claims are ultimately denied. Neither defendant has requested that Min be required to post a further bond and none is required.