Free Motion for Preliminary Injunction - District Court of California - California

Case 3:08-cv-01134-L-LSP

Document 9

Filed 07/07/2008

Page 1 of 3

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

) ) Plaintiff ) ) vs. ) ) HOME LOAN CORP. dba EXPANDED ) MORTGAGE CREDIT, a Texas Corp. ) MORTGAGE ELECTRONIC ) REGISTRATION SYSTEMS (MERS) a ) Delaware Corp., U.S. BANK NATIONAL ) ASSOCIATION as trustee for CREDIT ) SUISSE FIRST BOSTON HEAT-2005-2 ) AMERICA'S SERVICING COMPANY ) CAL WESTERN RECONVEYANCE ) CORP., a California Corp. ) ) Defendants ) ___________________________________ )

RICHARD A. CONNORS, an individual

Case No 08 CV 1134 L LSP NOTICE OF MOTION FOR ISSUANCE OF PRELIMINARY INJUNCTION

Date: Time: Judge: Dept:

July 15 2008 10 AM Honorable M. James Lorenz 14

NOTICE OF MOTION FOR PRELIMINARY INJUNCTION

JANIS L. TURNER (Cal Bar No. 079217) JANIS L TURNER ALC 2515 Camino Del Rio South Ste. 242B San Diego CA 92108 (619)718-4800 (voice) (619)718-4815 (fax) [email protected] Attorney for Plaintiff RICHARD A. CONNORS Notice of Motion for Prelim Inj

Case 3:08-cv-01134-L-LSP

Document 9

Filed 07/07/2008

Page 2 of 3

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

) ) Plaintiff ) ) vs. ) ) HOME LOAN CORP. dba EXPANDED ) MORTGAGE CREDIT, a Texas Corp. ) MORTGAGE ELECTRONIC ) REGISTRATION SYSTEMS (MERS) a ) Delaware Corp., U.S. BANK NATIONAL ) ASSOCIATION as trustee for CREDIT ) SUISSE FIRST BOSTON HEAT-2005-2 ) AMERICA'S SERVICING COMPANY ) CAL WESTERN RECONVEYANCE ) CORP., a California Corp. ) ) Defendants ) ___________________________________ ) Notice is hereby given that:

RICHARD A. CONNORS, an individual

Case No 08 CV 1134 L LSP NOTICE OF MOTION FOR ISSUANCE OF PRELIMINARY INJUNCTION

Date: Time: Judge: Dept:

July 15 2008 10 AM Honorable M. James Lorenz 14

The undersigned attorney shall appear before the Honorable M. James Lorenz at the Edward J. Schwartz United States Court House, 940 Front Street, San Diego, Department 14 On July 15, 2008 at 10:00 AM in the forenoon or as soon thereafter as she may be heard to seek a preliminary injunction in the above entitled case to restrain any and all actions relative to foreclosure of certain real property located at 402 Paso del Norte and bearing Assessors parcel Number 187-500-21. Notice of Motion for Prelim Inj

Case 3:08-cv-01134-L-LSP

Document 9

Filed 07/07/2008

Page 3 of 3

Said Motion/Application shall be based upon the requirements of FRCP 65 and that the Plaintiff will suffer irreparable harm for which there is no legal remedy if said order does not issue. Plaintiff shall rely upon his declaration and appended exhibits, declaration of counsel and appended exhibits, points and authorities, the contents of the courts file and such other or further evidence as the court shall deem relevant.

Dated: June 30, 2008

JANIS L. TURNER ALC

By_________/s/_______________ Janis L. Turner Esq. Counsel for Plaintiff RICHARD A. CONNORS

Notice of Motion for Prelim Inj

Case 3:08-cv-01134-L-LSP

Document 9-2

Filed 07/07/2008

Page 1 of 39

Case 3:08-cv-01134-L-LSP

Document 9-2

Filed 07/07/2008

Page 2 of 39

Case 3:08-cv-01134-L-LSP

Document 9-2

Filed 07/07/2008

Page 3 of 39

Case 3:08-cv-01134-L-LSP

Document 9-2

Filed 07/07/2008

Page 4 of 39

Case 3:08-cv-01134-L-LSP

Document 9-2

Filed 07/07/2008

Page 5 of 39

Case 3:08-cv-01134-L-LSP

Document 9-2

Filed 07/07/2008

Page 6 of 39

Case 3:08-cv-01134-L-LSP

Document 9-2

Filed 07/07/2008

Page 7 of 39

Case 3:08-cv-01134-L-LSP

Document 9-2

Filed 07/07/2008

Page 8 of 39

Case 3:08-cv-01134-L-LSP

Document 9-2

Filed 07/07/2008

Page 9 of 39

Case 3:08-cv-01134-L-LSP

Document 9-2

Filed 07/07/2008

Page 10 of 39

Case 3:08-cv-01134-L-LSP

Document 9-2

Filed 07/07/2008

Page 11 of 39

Case 3:08-cv-01134-L-LSP

Document 9-2

Filed 07/07/2008

Page 12 of 39

Case 3:08-cv-01134-L-LSP

Document 9-2

Filed 07/07/2008

Page 13 of 39

Case 3:08-cv-01134-L-LSP

Document 9-2

Filed 07/07/2008

Page 14 of 39

Case 3:08-cv-01134-L-LSP

Document 9-2

Filed 07/07/2008

Page 15 of 39

Case 3:08-cv-01134-L-LSP

Document 9-2

Filed 07/07/2008

Page 16 of 39

Case 3:08-cv-01134-L-LSP

Document 9-2

Filed 07/07/2008

Page 17 of 39

Case 3:08-cv-01134-L-LSP

Document 9-2

Filed 07/07/2008

Page 18 of 39

Case 3:08-cv-01134-L-LSP

Document 9-2

Filed 07/07/2008

Page 19 of 39

Case 3:08-cv-01134-L-LSP

Document 9-2

Filed 07/07/2008

Page 20 of 39

Case 3:08-cv-01134-L-LSP

Document 9-2

Filed 07/07/2008

Page 21 of 39

Case 3:08-cv-01134-L-LSP

Document 9-2

Filed 07/07/2008

Page 22 of 39

Case 3:08-cv-01134-L-LSP

Document 9-2

Filed 07/07/2008

Page 23 of 39

Case 3:08-cv-01134-L-LSP

Document 9-2

Filed 07/07/2008

Page 24 of 39

Case 3:08-cv-01134-L-LSP

Document 9-2

Filed 07/07/2008

Page 25 of 39

Case 3:08-cv-01134-L-LSP

Document 9-2

Filed 07/07/2008

Page 26 of 39

Case 3:08-cv-01134-L-LSP

Document 9-2

Filed 07/07/2008

Page 27 of 39

Case 3:08-cv-01134-L-LSP

Document 9-2

Filed 07/07/2008

Page 28 of 39

Case 3:08-cv-01134-L-LSP

Document 9-2

Filed 07/07/2008

Page 29 of 39

Case 3:08-cv-01134-L-LSP

Document 9-2

Filed 07/07/2008

Page 30 of 39

Case 3:08-cv-01134-L-LSP

Document 9-2

Filed 07/07/2008

Page 31 of 39

Case 3:08-cv-01134-L-LSP

Document 9-2

Filed 07/07/2008

Page 32 of 39

Case 3:08-cv-01134-L-LSP

Document 9-2

Filed 07/07/2008

Page 33 of 39

Case 3:08-cv-01134-L-LSP

Document 9-2

Filed 07/07/2008

Page 34 of 39

Case 3:08-cv-01134-L-LSP

Document 9-2

Filed 07/07/2008

Page 35 of 39

Case 3:08-cv-01134-L-LSP

Document 9-2

Filed 07/07/2008

Page 36 of 39

Case 3:08-cv-01134-L-LSP

Document 9-2

Filed 07/07/2008

Page 37 of 39

Case 3:08-cv-01134-L-LSP

Document 9-2

Filed 07/07/2008

Page 38 of 39

Case 3:08-cv-01134-L-LSP

Document 9-2

Filed 07/07/2008

Page 39 of 39

Case 3:08-cv-01134-L-LSP

Document 9-3

Filed 07/07/2008

Page 1 of 13

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

) ) Plaintiff ) ) vs. ) ) HOME LOAN CORP. dba EXPANDED ) MORTGAGE CREDIT, a Texas Corp. ) MORTGAGE ELECTRONIC ) REGISTRATION SYSTEMS (MERS) a ) Delaware Corp., U.S. BANK NATIONAL ) ASSOCIATION as Trustee for CREDIT ) SUISSE FIRST BOSTON HEAT-2005-2 ) AMERICA'S SERVICING COMPANY ) CAL WESTERN RECONVEYANCE ) CORP., a California Corp. ) ) Defendants ) ___________________________________ )

RICHARD A. CONNORS, an individual

Case No 08 CV 1134 L LSP

.

POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

JANIS L. TURNER (Cal Bar No. 079217) JANIS L TURNER ALC 2515 Camino Del Rio South Ste. 242B San Diego CA 92108 (619)718-4800 (voice) (619)718-4815 (fax) [email protected] Attorney for Plaintiff RICHARD A. CONNORS

Case 3:08-cv-01134-L-LSP

Document 9-3

Filed 07/07/2008

Page 2 of 13

TABLE OF CONTENTS INTRODUCTION PROCEDURAL HISTORY LEGAL ARGUMENT BASIC STANDARD THERE IS A PROBABILITY OF SUCCESS 12 USCA § 2605(b) THE REAL ESTATE SETTLEMENT PROCEDURES ACT 15 USCA § 1692 FAIR DEBT COLLECTION PRACTICES ACT ADDITIONAL REQUIREMENTS BALANCING THE BOND CONCLUSION Pg 4 Pg 3 Pg 1 Pg 2

Pg 6 Pg 8 Pg 9 Pg 10 Pg 10

Case 3:08-cv-01134-L-LSP

Document 9-3

Filed 07/07/2008

Page 3 of 13

TABLE OF AUTHORITIES Cases Blackwater Lodge and Training Center v. Broughton 2008WL 247-6430 (SD DA 2008 ) at P 5. Pg 3

Camacho v. Bridgeport Financial Inc. 430 F.3d 1078, 1082 (C.A.9 (Cal.),2005) at FN4. Pg 6 Clark v Capital and Collection Services Inc 460 F3d 1162, 1176 (9th Cir 2003 Clear Channel Outdoor Inc v. City of Los Angeles 340 F2d 810, 813 (CA 9 2003); Department of Parks & Rec for the State of California v. Bazaar Del Mundo Inc. 448 F. 3rd 1118,1123 (9h Cir 2006) Dogloo v. Doshocil Manufacturing Industries 875 F. Supp. 911, 919 (CD Ca 1995). Glider v PGA Tour Inc. 936 F. 2nd 417, 422 (9 Cir 1991) Lyndon v. Countrywide Home Loans (Docket number 08 - CV-0837 Marks v. Ocwen 2008 WL 344210 4 (ND Ca 2008). Republic of the Philippines v Marcos 862 F. 2nd 1355, 1362 (9 Cir 1988). Weinberger v Romero-Barcedo 456 US 305, 312, 102 S.Ct 1978 (1982). World Wide Rush LLC v. City of Los Angeles 2008 WL 2477440 (CD Ca 2008) Pg 6 Pg 3 Pg 7,8

Pg 9

Pg 7 Pg 8 Pg 4 Pg 8 Pg 8 Pg 3

Federal Code 12USCA § 2605 (b) 15 USCA §1692 State Code California Civil Code § 1788. Pg 3 Pg 2,3,4 Pg 3,6

Case 3:08-cv-01134-L-LSP

Document 9-3

Filed 07/07/2008

Page 4 of 13

INTRODUCTION Factually the underlying case in issue here concerns real property commonly known as 402 Paso del Norte, Escondido, California. That property was purchased by Plaintiff RICHARD CONNORS in November 2003 not to be an investment but to be Mr CONNORS' home and since he is self employed as a computer consultant it is also the place from which he works. In November 2004, as interest rates had dropped and, as one who was self employed, Plaintiff needed to reduce monthly capital out flow, he refinanced the property with a loan through Defendant HOME LOAN CREDIT by means of an Adjustable Rate Promissory Note The refinance was through a loan broker called EXPANDED MORTGAGE CREDIT. I did not at that time know that they were a Texas Corporation actually called HOME LOAN1 CORPORATION. HONE LOAN and its agents and employees told CONNORS that the adjustable rate was "better" for him. They did not tell him that their commissions were higher for the "sub-prime" loan even though CONNORS qualified easily for a conventional, non sub prime loan. He began to pay the mortgage to ASC he was never told that his " mortgage have been fractionalized and transferred. He was also never told that wile labeled "trustee" U S BANK was in reality another or additional "Servicer" and all they did was pass money on the FIRST BOSTON CREDIT SUISSE

He had tried to refinance but the value of his property had dropped to about 80% of the amount of the loan 1

1

Case 3:08-cv-01134-L-LSP

Document 9-3

Filed 07/07/2008

Page 5 of 13

In late 2007 Plaintiff was experiencing cash flow problems in business and fell behind on his mortgage he even then tried to contact ASC to see if he could renegotiate the loan he was unsuccessful and in March 2008 he received a default notice. He first sent a Demand for Validation to AMERICA'S SERVICING CO to whom the Mortgage payments had always been sent. He received a form that in no way responded to his demand, In fact he sent them letters more than once, and indeed began to ask for information even before the default in the hope that he could work out a never received any real reply to his requests to find out who owned the loan and what was happening. He also sent letters to CAL WESTERN demanding validation of the loan and information as to who was U.S. BANK NATIONAL as trustee for CREDIT SUISSE FIRST BOSTON HEAT-2005-2 since as far as he knew and still knows they have nothing to do with the mortgage. It is not known how or for that matter if U. S. BANK actually has any significant rights or sufficient rights to initiate a non-judicial foreclosure. To date despite the legal right to such validation of the debt Plaintiff received nothing in substantive response to his legally sanctioned request for validation from CAL WESTERN. Connors then received a notice of Foreclosure sale at a non-judicial foreclosure sale set for July 3, 2008. PROCEDURAL HISTORY On June 24, 2008, Plaintiff filed its initial complaint in this matter . He also obtained a hearing date for Temporary Restraining Order ( TRO). His initial request was denied without prejudice. His second request, however, predicated upon 12USCA § 2605 (b) was granted and a TRO put in place .

2

Case 3:08-cv-01134-L-LSP

Document 9-3

Filed 07/07/2008

Page 6 of 13

The court, at the same time as it granted the TRO, ordered plaintiff to within 24 hours file a first amended complaint . This was done. The complaint not only made amendments to the original including amending the references to the sections of the Real Estate Settlement Procedures Act ( RESPA) on which it relied it also added a cause of action for violation of the Fair Debt Collection Practices Act (FDCPA) 15 USCA §1692 and its state counterpart at California Civil Code § 1788. LEGAL ARGUMENT BASIC STANDARD "A plaintiff is entitled to a preliminary injunction where plaintiff demonstrates a strong likelihood of success on the merits, irreparable harm if injunctive relief is not granted, that the threatened injury to plaintiff out ways what ever damage the proposed injunction might cause to the opposing party and that the issuance of the injunction will not be adverse to the public interest." Blackwater Lodge and Training Center v. Broughton 2008WL 247-6430 (SD DA

2008 ) at P 5. In an earlier case the court held that in order to "obtain a preliminary injunction, the moving party must show either ( 1) a combination of probable success on the merits and possibility of irreparable injury or (2) that serious questions are raised and the balance of hardships tips in its favor. These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases ." Roe v. Anderson 13 F.3d 1400, 1402 (CA9 1998). See Also Clear Channel Outdoor Inc v. City of Los Angeles 340 F2d 810, 813 (CA 9 2003); World Wide Rush LLC v. City of Los Angeles 2008 WL 2477440 (CD Ca 2008) 3

Case 3:08-cv-01134-L-LSP

Document 9-3

Filed 07/07/2008

Page 7 of 13

THERE IS A PROBABILITY OF SUCCESS For the purposes of this motion Plaintiff relies upon to separate sections of the United States Code. The first is 12 USCA § 2605 (b). The second, as will be discussed later, is reliance upon sections of the Fair Debt Collection Practices Act. 12 USCA § 2605(b) THE REAL ESTATE SETTLEMENT PROCEDURES ACT This section of the Code concerns the requirement that a borrower must be notified in writing of any assignment, Sale or transfer of the servicing of the loan to any other person. The code then goes on to list what must be placed in the notice and the time frame within which it must be sent . Plaintiff admits that there have been few actions under this section but that does not mean that an action under this section does not stand a reasonable probability of success. The section requires notice to the borrower when there is or has been a change in the servicing arrangements for his or her loan. The fact that this is a proper basis is clearly demonstrated in the recent case Marks v. Ocwen 2008 WL 344210 4 (ND Ca 2008). In this case Plaintiff could not demonstrate that the notice to which she was entitled was insufficient as Judge Illiston ruled. But the clear implication is that such an allegation was indeed possible and could hence be successful under the appropriate circumstance. The code defines a "sercvicer" in the wonderfully circular fashion as one "responsible for servicing the loan" 12 USCA 2605(I)(2). It continues that the term "servicing" means "receiving any scheduled periodic payments from the borrower." id at (3).

4

Case 3:08-cv-01134-L-LSP

Document 9-3

Filed 07/07/2008

Page 8 of 13

The court's attention is drawn to the fact that the code does not use the term "directly" in front of "from the borrower" as some sort of qualifier nor does it say that there can be only one "servicer " at a time. In fact the if one considers the way in which many mortgages are paid today via an order for a direct transfer from ones account then one's own bank may also be a "servicer". It is submitted here that U.S. Bank is a servicer. It receives regular payments through ASC from the borrower. If one examines the Notice of Default and the Notice of Trustee's Sale U.S. Bank has not had itself listed as the "owner" of the mortgage­if indeed one still exists. It transfers payments from the borrower to Credit Suisse First Boston's HEAT. As can be seen from Mr. CONNORS' declaration this is not a case in which the notice was sloppy­ it has never been given at all. Plaintiff wrote to ASC. He sent a "qualified written request" and was never told one word about the existence of US Bank or for that matter Credit Suisse First Boston. While not notice is required under the code as to them it was and is required as tro US Bank ­the Second Servicer in the chain. This is a man's home. HE wrote to try to deal with the problem before his home became one more in the epidemic of foreclosures. He wrote to deal with whoever actually held that mortgage to try to renegotiate and work out a solution. One of the purposes of the Real Estate Settlement Procedures Act was to protect borrowers and to give them a tool by which they could protect themselves. This is so serious an issue that on this basis alone the mandate is clearly present to maintain the Status Quo pending a full adjudication. 5

Case 3:08-cv-01134-L-LSP

Document 9-3

Filed 07/07/2008

Page 9 of 13

15 USCA § 1692 FAIR DEBT COLLECTION PRACTICES ACT Plaintiff has also brought the within action under the Fair Debt Collection Practices Act (FDCPA). The essence of the act is to regulate debt collectors and violation of it also mandates the issuance of a Preliminary Injunction pending full adjudication of the issues here. Section 1692g specifically mandates that where the debtor, in a timely fashion requests validation of the debt the collector will verify the debt with the creditor and provide the creditor with a copy of any validation received. One need only look at the letter sent to Mr. Connors on June 6, 2008 from Ms Moeder. It does not say that the loan has been validates and in fact Pite Duncan appears to represent ASC and not Cal Western at all. It does not present any information concerning the chain of ownership as Mr. Connors requested. It simply repeats canned information for someone who by their own admission is not the creditor­whoever that is. They sent absolutely nothing to actually validate the loan. The purpose of the FDCPA is to prevent false and misleading practices and of even greater importance is the fact that it is remedial in nature and must be broadly construes to effect its purposes. Clark v Capital and Collection Services Inc 460 F3d 1162, 1176 (9th Cir 2003). In fact the act is so broadly interpreted that even an oral dispute can and does trigger the obligations under the act an"oral dispute rebuts the presumption of validity, and therefore triggers an obligation for debt collectors to find some evidence of the debt's validity". Camacho v. Bridgeport Financial Inc. 430 F.3d 1078, 1082 (C.A.9 (Cal.),2005) at FN4. 6

Case 3:08-cv-01134-L-LSP

Document 9-3

Filed 07/07/2008

Page 10 of 13

An examination of the letter from Pite Duncan shows that ti does not actually serve to validate the "mortgage" and it clearly does not answer the questions asked by Connors. It is submitted that the Plaintiff has met his burden of likelihood of success in a case such as this. He is entitled to have a preliminary injunction entered here. He is entitled to actually know who if anyone owns the Mortgage or if the statutory rights which attach to a mortgage including the right to exercise foreclosure exists any longer or has the complex system of fractionalizing loans and converting them to securities destroyed that right. It must be kept in mind that nonjudicial foreclosure is an action which flows from the contract between the borrower and the maker of the mortgage and if that chain is broken as it has been here that foreclosure right no longer exists. Conners tried to find out what had happened here. He tried to discover if his contract had been properly transferred. Hr has received no information and it is submitted that he is entitled to that information and he is entitled to have this action adjudicated on its merits before there is any foreclosure. Plaintiffs are not required to show positively that they will prevail on the merits. A reasonable probability is sufficient See Glider v PGA Tour Inc. 936 F. 2nd 417, 422 (9 Cir 1991). Various courts have used various tests for this rule that The ninth circuit however has set forth a test which is formulated in the alternative. That is a plaintiff may meet his burden by showing " either a combination of probable success on the merits and the possibility of irreparable injury; or serious questions as to these matters and the balance of hardships tips sharply in the plaintiffs favor" Department of Parks & Rec for the State of California v. Bazaar Del Mundo Inc. 448 F. 3rd 1118,1123 (9h Cir 2006).

7

Case 3:08-cv-01134-L-LSP

Document 9-3

Filed 07/07/2008

Page 11 of 13

The court continued to note that the two "formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases"id at pg 1123-1124. The Circuit Court, has also noted that where there are "serious questions" that is questions that involve a fair chance of success on the merits that cannot be resolved by the one way or the other at the hearing on the injunction "and they as to which the court perceives the need to preserve the status quo lest one side prevent resolution of the question or execution of any judgment by altering the status quo" Republic of the Philippines v Marcos 862 F. 2nd 1355, 1362 (9 Cir 1988). In this case, the issue was whether the defendant a former president of the Philippines would make it impossible for the Republic to recover its treasury. Here, the plaintiff has demonstrated the existence of that reasonable likelihood of success with regard to very serious questions. Unlike the case decided by Judge Whelan a little over a month ago, Lyndon v. Countrywide Home Loans (Docket number 08 - CV-0837) May 13, 2008 the plaintiff here has both filed suit and sought relief prior to the occurrence of the sale. ADDITIONAL REQUIREMENTS The initial requirement for the issuance of a Preliminary Injunction is that the moving party must demonstrate what the courts have always labeled the fundamental requirements that he is irreparable injury and the inadequacy of legal remedy. See Weinberger v Romero-Barcedo 456 US 305, 312, 102 S.Ct 1978 (1982). Here, the item in question is real property in fact the plaintiffs home. This is one of those items which by definition is configured unique and something for which no amount of monetary 8

Case 3:08-cv-01134-L-LSP

Document 9-3

Filed 07/07/2008

Page 12 of 13

damages will compensate. In short, by definition Plaintiff will suffer irreparable harm in the loss of his home and that loss will be something which he cannot be compensated for­ the essence of the requirements in equity. The loss of a man's home can not be recompensed by mere money. BALANCING Under most rulings, the court is also obligated to balance the competing claims of the parties and the effect on each of them of the issuance of injunctive relief as against the harm of not issuing the injunction. In addition, it appears the Judge should give at least some weight to any public interest which might be involved. See Dogloo v. Doshocil Manufacturing Industries 875 F. Supp. 911, 919 (CD Ca 1995). Generally stated the rule is that there must be a substantial threat of irreparable harm to the plaintiff, that injury must outweigh any potential harm to defendants and there is no substantial risk to public interest. Here, what the plaintiff stands to lose is his home not just the most important investment any person ever makes but the place where one has chosen to make his life, to build his future, a place which by definition the law has ruled not replaceable by mere money. As to the defendants here, issuing a Preliminary Injunction, particularly given the current real estate market will do them essentially no damage at all. In fact it is extraordinarily common that foreclosure sales are postponed without court intervention, something for which as can be seen in the appended declaration of counsel was attempted here. It must be noted, that the plaintiff has justifiably asked for a demonstration of the right to actually legally hold the foreclosure say it is not excessive to restrain the occurrence of that event until there is actually 9

Case 3:08-cv-01134-L-LSP

Document 9-3

Filed 07/07/2008

Page 13 of 13

proof that the defendants have the right to the relief they seek a relief which is not reviewed by any court and is extremely harsh. As to public interest as far as can be seen, there actually is none in one way or the other at least not at this point. THE BOND The final requirement is a determination by the Judge as to the imposition of bonding requirements if, in the courts discretion such a bond is necessary. It must be kept in mind that the issue underlying this suit is a foreclosure of real property a remedy which should Plaintiff be unsuccessful not be lost and given the current nature of the real estate market it is unlikely that Defendants will be placed in much jeopardy. Thus, it is submitted that a minimal bond is all that will be required here. The Plaintiff suggests no more than $5,000. CONCLUSION For all of these reasons it is respectfully requested the plaintiffs request be granted and that a Preliminary Injunction issue restraining all defendants from taking any action negatively affecting plaintiffs rights to the property.

Dated: July 7, 2008

JANIS L. TURNER ALC

By________________________ Janis L. Turner Esq. Counsel for Plaintiff RICHARD A. CONNORS

10

Case 3:08-cv-01134-L-LSP

Document 9-4

Filed 07/07/2008

Page 1 of 2

CERTIFICATE OF SERVICE IT IS HEREBY CERTIFIED that on July 7, 2008 the Order Granting TRO, Application for Preliminary Injunction together with Declaration of Plaintiff RICHARD CONNORS with exhibits, Points and Authorities and and Certificate of Service was filed electronically with the clerk of the court using the CM/ECF system which will automatically send e-mail notice of filing to the following counsel of record. Counsel additonally served a courtesy copy of the within document on the Hon M. James Lorenz via Knox Attorney Service. Additionally Defendants were served as follows: Via Knox Attorney Service on: Thomas N. Abbott Esq. Pite Duncan LLP 535 E. Main Street El Cajon CA 92020 Attorneys for Defendants AMERICA'S SERVICING COMPANY and CAL WESTERN RECONVEYANCE CORP. Home Loan Corp C/O CT Corporation System 818 West 7 th Street Los Angeles CA 90017 MORTGAGE ELECTRONIC REGISTRATION SYSTEMS C/O Registered Agent 2216 16 th St Sacramento CA 95818 Via DHL HOME LOAN CORP 450 GEARS RD STE 600 HOUSTON TX 77067

Case 3:08-cv-01134-L-LSP

Document 9-4

Filed 07/07/2008

Page 2 of 2

US BANK NATIONAL ASSOC, as Trustee Trust Legal Department 60 Livingston Ave St Paul MN 55107 MORTGAGE ELECTRONIC REGISTRATION SYSTEMS C/O Corporate Counsel MERS 1818 Library Street Ste 300 Reston VA 20190

Dated: July 7, 2008

Janis L. Turner ALC By_____-S-__________ Janis L. Turner, Esq. (Cal Bar No 079217) Attorney for Plaintiff RICHARD CONNORS