Free Order on Motion for TRO - District Court of California - California

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

Document 6

Filed 07/02/2008

Page 1 of 2

1 2 3 4 5 6 7 8 9 10 11 RICHARD A. CONNORS, 12 13 v. 14 HOME LOAN CORP. dba EXPANDED MORTGAGE CREDIT, et al. 15 Defendants. 16 17 Plaintiff, ) ) ) ) ) ) ) ) ) ) ) Civil No. 08cv1134-L(LSP) ORDER GRANTING TEMPORARY RESTRAINING ORDER [doc. #5] and ENJOINING THE SALE OF PROPERTY; TO SHOW CAUSE WHY A PRELIMINARY INJUNCTION SHOULD NOT ISSUE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Plaintiff Richard A. Connors ("Connors" or "plaintiff") filed this action on June 24, 2008,

18 alleging violations of the Truth in Lending Act ("TILA"), 15 U.S.C. § 1640 et seq.; the Real 19 Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2614; the Home Ownership and 20 Equity Protection Act ("HOEPA"), 15 U.S.C. § 1602 et seq.; breach of fiduciary duty; breach of 21 covenant; to quiet title; and for declaratory relief. Plaintiff initially sought a temporary 22 restraining order ("TRO") with notice to prevent a foreclosure sale of his home on July 3, 2008 23 by defendants. A hearing on the TRO was set and held on July 2, 2008, at which time the Court 24 denied without prejudice the temporary restraining order for failure to demonstrate a likelihood 25 of success on the merits or that serious questions were presented. 26 Plaintiff has filed a second TRO that is filed with notice as to defendant Cal-Western

27 Reconveyance Corp. The Court held a hearing on the second TRO again finding irreparable 28 harm and that the balance of hardships tips strongly in plaintiff's favor.
08cv1134

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

Document 6

Filed 07/02/2008

Page 2 of 2

1

The second TRO sets forth as a basis for injunctive relief RESPA, 12 U.S.C. § 2605, a

2 section that is not alleged in the complaint. Plaintiff complaint alleges a cause of action under 3 RESPA, 26 U.S.C. § 2607, which addresses the prohibition against kickbacks and unearned fees 4 which was not supported in the original TRO application. The Court has permitted plaintiff to 5 orally amend the complaint to allege a cause of action under section 2605 and to file an amended 6 complaint within 24 hours of the filing of this Order. Plaintiff was sworn and testified that he 7 never received notice of the assignment, sale or transfer of his loan. Based on this testimony, the 8 Court finds that serious questions have been raised and a TRO will issue. 9 Good cause appearing, plaintiff's second application for TRO is GRANTED. Cal-

10 Western is enjoined from conducting a sale of the subject property pending a determination on a 11 preliminary injunction. Bond is waived. IT IS FURTHER ORDERED that plaintiff shall file 12 an amended complaint within 24 hours of the filing of this Order. IT IS FURTHER 13 ORDERED that plaintiff shall file and served all defendants with a motion for preliminary 14 injunction not later than Monday, July 7, 2008 at 12:00 p.m. Defendants shall file a response 15 in opposition to the motion for preliminary injunction not later than Friday, July 11, 2008 at 16 5:00 p.m. IT IS FURTHER ORDERED that a hearing on plaintiff's motion for preliminary 17 injunction shall be held on Tuesday, July 15, 2008 at 10:00 a.m. in Courtroom 14. 18 IT IS SO ORDERED.

19 DATED: July 2, 2008 at 4:55 p.m. 20 21 22 COPY TO: 23 HON. LEO S. PAPAS UNITED STATES MAGISTRATE JUDGE 24 25 ALL PARTIES/COUNSEL 26 27 28
2
08cv1134

M. James Lorenz United States District Court Judge