Case 2:13-cv-00729-MCE-AC Document 16 Filed 04/25/13 Page 1 of 16

1 BRYAN CAVE, LLP C. Scott Greene, California Bar No. 277445 2 Thomas S. Lee, California Bar No. 275706 3 Michael J. Peng, California Bar No. 260852 560 Mission Street, 25th Floor 4 San Francisco, CA 94105 Telephone: (415) 675-3400 5 Facsimile: (415) 675-3434 E-mail: scott.greene@bryancave.com 6 tom.lee@bryancave.com pengm@bryancave.com 7 8 Attorneys for Defendants BANK OF AMERICA, N.A., and RECONTRUST COMPANY, N.A. 9
Bryan Cave LLP 560 Mission Street, Suite 2500 San Francisco, California, 94105

10 11 12 13 KEVIN SINGH, 14 15 16 v.

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Case No. 2:13-cv-00729-MCE-AC Plaintiff, DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION [REQUEST FOR TELEPHONIC APPEARANCE] Chief Judge Morrison C. England, Jr. Date: Time: Courtroom: Action Filed: Trial Date: April 29, 2013 10:00 a.m. 7 April 15, 2013 Not Assigned

BANK OF AMERICA, N.A.; RECONTRUST 17 COMPANY, N.A. 18 19 20 21 22 23 24 25 26 27 28 Defendants.

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Case 2:13-cv-00729-MCE-AC Document 16 Filed 04/25/13 Page 2 of 16 MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION Plaintiff Kevin Singh (“Plaintiff”) seeks a preliminary injunction to prevent the foreclosure

1 2 I. 3

4 sale of real property located at 2544 Pheasant Hollow Drive, West Sacramento, California. 5 Plaintiff’s Motion for Preliminary Injunction should be denied. Significantly, this Court does not 6 have jurisdiction because there is no complete diversity amongst the parties. Further, Plaintiff has 7 an adequate remedy at law. For these reasons, Plaintiff should not be granted injunctive relief. If 8 injunctive relief is granted, the Court should order Plaintiff to post a bond. 9 II.
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THERE IS NO DIVERSITY JURISDICATION Plaintiff’s Complaint alleges that “[j]urisdiction is proper because this case involves an

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11 amount at issue greater than seventy-five thousand dollars, and there exists complete diversity as 12 between the parties to his suit.” (Compl. ¶ 1.) 13 Under 28 U.S.C. § 1332(a), diversity jurisdiction exists where the amount in controversy

14 exceeds $75,000 and no defendant party shares citizenship in the same state as the plaintiff. Exxon 15 Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553 (2005) (citing Strawbridge v. Curtiss, 3 16 Cranch 267, 2 L.Ed. 435 (1806)). For the purposes of diversity jurisdiction, national banking 17 associations are "deemed citizens of the States in which they are respectively located." 28 U.S.C. 18 § 1348. A national banking association is "located" in "the State in which its main office, as set 19 forth in its articles of association, is located." Wachovia Bank v. Schmidt, 546 U.S. 303, 307 20 (2006) (construing 28 U.S.C. § 1348). 21 Here, ReconTrust’s Amended Articles of Association identify the main office as being

22 located in Simi Valley, California. See Bedalla v. Bank of America, N.A., No. 12-cv-0230723 RMW (N.D Cal. 2012) ("ReconTrust is a national banking association with its designated main 24 office in Simi Valley, California.") (Attached hereto as Exhibit A is a true and correct copy of 25 ReconTrust’s Amended Articles of Association.) Therefore, ReconTrust is a citizen of 26 California for purposes of diversity jurisdiction and there is not complete diversity as Plaintiff 27 alleges. Id. Accordingly, this Court has no jurisdiction over this matter and, for this reason 28 alone, Plaintiff’s Motion for Preliminary Injunction should be denied. Id. 1
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Case 2:13-cv-00729-MCE-AC Document 16 Filed 04/25/13 Page 3 of 16 1 III. 2 3 INJUNCTIVE RELIEF SHOULD BE DENIED BECAUSE PLAINTIFF HAD AN ADEQUATE REMEDY AT LAW Plaintiff’s request for an injunction should also be denied because an adequate remedy at

4 law existed and was available to Plaintiff prior to filing this Motion. California Civil Code section 5 2924 et. seq. provides “a comprehensive framework for the regulation of a non-judicial 6 foreclosure sale pursuant to a power of sale contained in a deed of trust.” Moeller v. Lien , 25 Cal. 7 App. 4th 807, 822 (1994). In Moeller, the Court held that injunctive relief would be “inconsistent 8 with the comprehensive and exhaustive statutory scheme regulating non-judicial foreclosures” Id. 9 at 821.
Bryan Cave LLP 560 Mission Street, Suite 2500 San Francisco, California, 94105

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Under this framework, Plaintiff had the statutory right to reinstate his loan following

11 receipt of the Notice of Default: “[A]t any time prior to entry of the decree of foreclosure, 12 [borrower] may pay to the beneficiary or the mortgagee or their successors in interest, 13 respectively, the entire amount due, at the time payment is tendered . . . .” Cal. Civ. Code § 14 2924c(1). Where a borrower pays the amount due, the loan is reinstated and the foreclosure is 15 rescinded. Cal. Civ. Code § 2924c(2). 16 Plaintiff had an adequate remedy at law: reinstatement. His request for an injunction

17 against foreclosure should be denied. 18 IV. 19 IF AN INJUNCTION IS GRANTED, PLAINTIFF MUST POST A BOND If the Court is inclined to grant the Preliminary Injunction, Plaintiff must post an injunction

20 bond “in an amount that the court considers proper to pay the costs and damages sustained by any 21 party found to have been wrongfully enjoined or restrained.” FRCP 65 (c). A court’s failure to 22 require a bond upon issuing injunctive relief is reversible error. Hoechst Diafoil Co. v. Nan Ya 23 Plastics, Corp., 174 F3d 411, 421 (4th Cir. 1999). 24 Here, if the Court is inclined to permit injunctive relief, the order should require Plaintiff to

25 make monthly bond payments in the amount of $2,700 to cover his monthly payments due on his 26 loan. 27 28 2
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Case 2:13-cv-00729-MCE-AC Document 16 Filed 04/25/13 Page 4 of 16 1 V. 2 CONCLUSION For the reasons and authorities set forth above, Plaintiff’s request for a preliminary

3 injunction should be denied. If the Court grants a preliminary injunction, Plaintiff should be 4 ordered to make monthly payments. 5 Dated: April 25, 2013 6 7 8 9
Bryan Cave LLP 560 Mission Street, Suite 2500 San Francisco, California, 94105

BRYAN CAVE LLP

By:

/s/ Michael J. Peng Michael J. Peng Attorneys for Defendants BANK OF AMERICA, N.A., and RECONTRUST COMPANY, N.A.

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Case 2:13-cv-00729-MCE-AC Document 16 Filed 04/25/13 Page 5 of 16

EXHIBIT A