Free Motion for TRO - District Court of California - California

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

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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

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA RICHARD A. CONNORS, an individual ) ) 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: 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 at 10 AM in the forenoon or as soon thereafter as she may be heard to see a temporary restraining order and a hearing date for a preliminary order 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. Case No 08 CV 1134 L LSP NOTICE OF EMERGENT HEARING FOR ISSUANCE OF TEMPORARY RESTRAINING ORDER

Date: Time: Judge: Dept:

July 2, 2008 10 AM Honorable M. James Lorenz 14

Notice Emergent Hearing RE Restraining Order1

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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. Please note further that all relevant papers were filed via Electronic Case Filing (ECF) on or before June 30, 2008.

Dated: June 30, 2008

JANIS L. TURNER ALC

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

Notice Emergent Hearing RE Restraining Order2

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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

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA RICHARD A. CONNORS, an individual ) ) 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 ) ___________________________________ ) Case No 08 CV 1134 L LSP POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER

Date: Time: Judge: Dept:

July 2, 2008 10 AM Honorable M. James Lorenz 14

INTRODUCTION Factually the underlying case in issue here concerns real property commonly known as 402 Paso del Norte1, 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.

Please note that by inadvertence the street name was spelled "Paseo" del Norte in the complaint P&A in Support for Temp Restraining Order 1

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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. He did not at that time know that they were a Texas Corporation actually called HOME LOAN CORPORATION. In late 2007, Plaintiff was experiencing cash flow problems in his business and fell behind on his mortgage and in March 2008, he received a default notice. He first contacted AMERICA'S SERVICING CO to whom the Mortgage payments had always been sent. In fact he sent them letters more than once, and 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 nonjudicial foreclosure. To date, despite the legal right to such validation of the debt Plaintiff has received nothing in substantive response to his legally sanctioned request for validation from CAL WESTERN. CONNORS has received a notice of Foreclosure sale at a non-judicial foreclosure sale set for July 3, 2008. PROCEDURAL HISTORY Procedurally Plaintiff first filed an action in the Superior Court for the State of California. He did not understand how service needed to be done so it was never served. Thereafter, realizing the complexity of what was happening he retained counsel who as quickly as she could read the documents, dismissed the State Court case without prejudice and filed the within action. /// /// P&A in Support for Temp Restraining Order 2

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It was filed on June 24, 2008. A letter was sent to counsel for CAL WESTERN on June 26 to see if a voluntary continuance of the sale could be arranged. At the same time counsel reserved a date for a hearing and counsel informed the court that if there was an arrangement reached the hearing would be taken off calendar. LEGAL ARGUMENT The general rule is that a Temporary Restraining Order or a preliminary injunction is for the purpose of preserving the status quo, that is the condition at the time of filing, until there can be an adjudication on the merits. As what appears to be the essential case on the issue, but Supreme Court has held "the sole purpose [of the TRO] is to preserve the status quo pending hearing on the moving party's application for a preliminary injunction". Granny Goose Foods v. Brotherhood of Teamsters et al 415 US 423, 439, 94S.Ct. 113 (1974). Thus the only action sought here is the issuance of the TRO together with the setting of the date and any necessary briefing schedule for the issuance of a Preliminary Injunction. NOTICE Unlike a request for a TRO, an application or motion for a Preliminary Injunction requires notice to the opposing party or parties. The rules are clear that a TRO can issue ex parte that is without notice. As can be seen from the appended attorney declaration and certificate, counsel for moving party here served notice of an emergent hearing or at least attempted to do so at the same time as the complaint was served. JURISDICTION SUBJECT MATTER The first step in obtaining injunctive relief of any sort is that the moving party must demonstrate that the court has subject matter jurisdiction. It must be kept in mind that the basic rule concerning Federal Court jurisdiction is that, unlike the state courts which are presumed to be courts of general jurisdiction, the jurisdiction of this court is circumcised and must be affirmatively pled. P&A in Support for Temp Restraining Order 3

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Here, as can be seen from the complaint which has already been filed, the Federal Court jurisdiction is predicated upon federal questions arising out of sections of the United States Code. These include, violation of various federal codes thus giving this court jurisdiction. Thus for purposes of a TRO sufficient jurisdiction has been pled. In addition, Plaintiff will shortly be filing a first amended complaint alleging violation of the Fair Debt Collection Practices Act both in its federal and state forms. PERSONAL JURISDICTION A second test concerning issuance of a TRO is a demonstration of personal jurisdiction over the parties. As can be seen from the complaint, it is clear that personal jurisdiction over each of the defendants does indeed exist. STANDING The requirement of standing is what prevents someone from bringing action based upon someone else's rights. One must show direct and concrete or eminent injury to oneself. Lujan v. Defenders of Wildlife 504 US 555, 560, 112 S.Ct 2130 (1992). EQUITABLE JURISDICTION Not only must the other jurisdictional requirements he met but the court must have equitable jurisdiction. While courts of equity (Chancery) were once separate, the joinder of both functions unless the Congress has specifically excluded such equitable jurisdiction is implied. "Absent the clearest command to the contrary from Congress, Federal Courts retain equitable power to issue injunctions over any suit over which they have jurisdiction."Calafano v. Yamasaki 442 US 682, 705, 99 S.Ct 2545 (1979). See also US v Oakland Cannabis Buyers Coop 532 US. 483, 495, 112 S.Ct 1711 (2001). Here, there is no question that this court has jurisdiction to grant the relief requested. The only issue is whether the court in its discretion deems the relief appropriate. /// /// /// P&A in Support for Temp Restraining Order 4

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REQUIREMENTS The initial requirement for the issuance of a TRO 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 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. 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 Temporary Restraining Order, 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. P&A in Support for Temp Restraining Order 5

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It is not excessive to restrain the occurrence of that event until there is actually 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. LIKELIHOOD OF SUCCESS The final prong of the test for issuance of the release sought here is what has been labeled likelihood of success. This is a difficult term to encompass since one must note from the outset that it is likelihood of success as viewed from the perspective of the time at which the request is filed and the courts have long held that certainty is not required.. 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). 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). P&A in Support for Temp Restraining Order 6

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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. Admittedly, it was very shortly before the foreclosure sale but the declaration of the Plaintiff demonstrates clearly that he had been actively attempting to obtain information so as to determine whether the sale was lawful. These efforts, would clearly show a demonstration of violation of both the Federal and State Fair Debt Collection Practices Act. However, even absent the allegations which are to be added to an amended complaint it is submitted what Plaintiff has submitted is both sufficient and has demonstrated a sufficient likelihood of success when given the extraordinarily serious event which will take place if the TRO does not issue to justify the court entering the order and setting the matter for a hearing for preliminary injunction within an appropriate time frame. CONCLUSION For all of these reasons it is respectfully requested the Plaintiffs request be granted and that a temporary restraining order issue restraining all Defendants from taking any action negatively affecting Plaintiffs rights to the property.

Dated: June 30, 2008

JANIS L. TURNER ALC

By__________/s/______________ Janis L. Turner Esq. Counsel for Plaintiff RICHARD A. CONNORS

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CERTIFICATE OF SERVICE IT IS HEREBY CERTIFIED that on June 30, 2008 the Application for TRO, Declaration of Plaintiff RICHARD CONNORS with exhibits, Points and Authorities and and declaration of counsel re 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 as no Defendant has yet appeared they were served with a Notice of intention to appear ex parte on July 2, 2008 and informed that all relevant documents would be available through ECF Dated: June 30, 2008 Janis L. Turner ALC By_____-S-__________ Janis L. Turner, Esq. (Cal Bar No 079217) Attorney for Plaintiff RICHARD CONNORS