Case 2:13-cv-00729-MCE-AC Document 14 Filed 04/25/13 Page 1 of 9 Aldon L. Bolanos, Esq., SBN. 233915 Law Offices of Aldon L.

Bolanos, Esq. Sacramento, CA 95814 PH. 916.446.2800 FX. 916.446.2828
www.aldonlaw.com

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Attorneys for Plaintiff Kevin SINGH

United States District Court Eastern District of California

Kevin SINGH, Plaintiff, vs. Bank of America, N.A.,Recontrust Company, N.A.,

Case No. 2:13-CV-00729-MCE-AC Application for Preliminary Injunction Date: April 29, 2013 Time: 10:00 a.m. Ctrm: 7

Defendants.

1.

Prefatory Statement Plaintiff Kevin Singh, through his counsel, hereby

applies for a preliminary injunction to prevent the sale of his home during the pendency of this action. The basis for this application is that defendant is engaging in wrongful foreclosure proceedings in violation of the California Homeowners Bill of Rights. Specifically, Mr. Singh is the victim of “dual

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tracking” in which a lender engages in loan modification negotiations while at the same time moving toward a non-judicial foreclosure sale. Previously the Court granted a temporary restraining order to prevent the sale of the home, which had been scheduled for April 22, 2013. Bolanos Declaration, concurrently filed. In light of the above, immediate judicial intervention is required in order to preserve the status quo pending Mr. Singh’s case being decided on its merits. 2. Legal Standard In determining whether the grant a preliminary injunction, the court balances the respective equities of the parties and concludes that pending trial on the merits, the defendant should or should not be restrained from exercising the right claimed by him. Continetal Banking v. Katz, 68 Cal. 2d 512, 528. The general purpose of such an injunction is preservation of the status quo until a final determination of the merits of the action. Id., citing Stewart v. Superior Thus, the court Court, (1893) 100 Cal. 543, 545. Now, the See home sale has been rescheduled for May 20, 2013.

examines all of the material before it in order to consider whether a greater injury will result to the defendant from granting the inunction than to the plaintiff from refusing it. Id.

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In making that determination the court will consider the probability of the plaintiff’s ultimately prevailing in the case and will deny the preliminary injunction unless there is a reasonable probability that plaintiff will be successful in the assertion of his rights. Id. “In the last analysis, the trial Id., court must determine which party is the more likely to be injured by the exercise of its discretion. Cal. App. 2d 235, 242. Here, the court looks to the law at issue: California’s Homeowners’ Bill of Rights. That law provides that “It is the intent of the Legislature that the mortgage servicer offer the borrower a loan modification or workout plan if such a plan is consistent with its authority.” § 2923.6(b). California Civil Code If a borrower submits financials toward a citing Family Record Plan, Inc. v. Mitchell (1959) 172

loan modification effort, then the servicer/beneficiary/bank shall not conduct a trustee’s sale while the application is pending and the servicer must make a written determination that the borrower is ineligible. Civil Code § 2923.6(c). Also under this new law, the mortgage servicer must establish a single point of contact and provide one or more direct means of communication with the single point of contact. Civil Code § 2923.7(a). That contact shall be responsible for communicating the process for foreclosure prevention alternatives and

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coordinating receipt of all documents associated with same. Id. at (b)(1). Further, that point of contact Id., shall have access to all current information and timely provide same to adequately inform the borrower. (b)(2) and (3). Finally, the lender/servicer is required to inform the borrower in writing that the modification proposal has been rejected or is no longer being considered before it may proceed with foreclosure. §2923.6(b). The principles of equity apply to foreclosure sales. Equity does not allow one to take advantage of his own wrong nor will it assist in perpetration of fraud on another or the public. Bowman v Bowman, 125 Cal. App. 602 (1932). his own fault or wrong. A party cannot take advantage of Archibald Estate v. Matteson, Civil Code

5 Cal. App. 441 (1907) Courts may set aside a foreclosure sale when there has been fraud, when the sale has been improperly, unfairly, or unlawfully conducted, or when there has been such a mistake that it would be inequitable to let stand. Bank of America Nat. Tmst & Savings Ass'n v. Reidy, 15 Cal 2d 243, 248 (1940); Whitman v. Transtate Titie Co. , 165 Cal.App.3d 312, 322-323 (1985).

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3.

Legal Analysis As stated in the concurrently-filed declaration of

Mr. Singh, as well as the Verified Complaint herein, Mr. Singh has been residing at his home with his wife and three children since 2005. of 2008. He initially defaulted on his loan during the fallout from the Great Recession Subsequently, Mr. Singh sought bankruptcy That bankruptcy was protection under Chapter 7.

discharged on December 14, 2012. A. Plaintiff is Likely to Prevail On The Merits Regardless, during approximately the past year, Mr. Singh and Bank of America have been actively involved in loan modification negotiations. These essentially took the form of requests for information by Bank of America, timely responses by Mr. Singh providing the requested information, then a period of inaction, then follow-up communications from Mr. Singh, then any one of a litany of excuses from the bank for why the papers were not “processed” or the information needed to be resubmitted. anew. Most importantly, Mr. Singh was never provided with anything in writing from Bank of America that it had ceased considering him for a modification, or that it had rejected or denied the modification. This runs categorically afoul of the Homeowners Bill of Rights, codified at California Civil Code §2923.6(b). Then the cycle would begin

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Under these facts, and as set forth in the California law quoted above, the bank’s actions are clearly violative of the Homeowners’ Bill of Rights. This is because they constitute “dual tracking” by utilizing the deceptive shell game tactic of providing a borrower with multiple points of contact and proceeding with foreclosure without first informing the borrower that modification efforts have proven fruitless. Thus, under the clear meaning of California law and the facts presented, plaintiff has demonstrated a clear probability of prevailing on the merits. B. The Balance of Equities Tips Sharply Toward In this matter the relative hardship to Ms. McVey - losing his family home - represents irreparable injury, decreasing Ms. McVey’s requirement of showing a probability of success on the merits. The loss of one's property due to foreclosure unquestionably constitutes an irreparable injury. Demarest v Quick Loan Fund, Inc. 2009 WL 940377 (CD. Cal 2009); Wrobel v. S.L. Pope & Associates, 2007 WL 2345036 at 1 (S.D. Cal 2007) ("Losing one's home through foreclosure is an irreparable injury."), Bland v Carone Family Trust, 2007 WL 951344, at 2 (S.D. Cal.2007). Numerous courts have found this injury enough by itself to mandate preliminary injunctive relief See, e.g.

Plaintiff

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Nichols v. Deutsche Bank Nat. Trust Co., 2007 WL 4181111, at 2 (S.D. Cal.2007); United Church of Med. Ctr. v. Med Ctr. Comm. 'n, 689 F 2d 693, 701 (7"" Cir. 1982); Johnson v. U.S. Dept. of Agriculture, supra, at 789. Here, the balance of equities tips heavily in favor of Mr. Singh. This is due in no small part to the fat that the Great Recession also threatened to claim a number of banks, including Bank of America. However, our federal government provided Bank of America with $45 billion dollars to prevent it from sliding into insolvency. Since thirty-three cents of every dollar Kevin Singh earned went to our federal government in the form of tax, it stands to reason that in a very real sense, Mr. Singh paid to save Bank of America when our economy experienced turbulence. Moreover, if plaintiff fails to receive an injunction and his home is sold, it will be an unmitigated disaster for himself and his family. be rendered homeless. Also, Mr. Singh runs his Mr. Singh, his wife, and their three young children would painting business through the garage of his home. Thus, if he is ejected it would spell the end of the business and the only means by which Mr. Singh can support himself and his family. concurrently filed. C. No Bond Should Be Required See Singh Declaration,

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Courts have broad discretion in determining the amount of a bond. See Connecticut Gen. Life Ins Co. v. New Images of Beverly Hills, 321 F.3d 878, 882 (9th Cir.2003). The Court may dispense with the filing of a bond when it concludes there is no realistic likelihood of harm to the Defendant from enjoining his or her conduct." Jorgensen v. Cassidy, 320 F.3d 906, 919 (9th Cir. 2003). Here, there is no realistic harm to Defendants from a restraint of the foreclosure proceedings and trustee’s sale. If the Defendants' position that the loans were valid correct, then the loans are adequately by the very property in question; additional security if neither appropriate nor warranted. Phleger v. Countrywide Home Loans, Inc., 2007 WL 4105672 at 6 (N.D. Cal. 2007). A bond is neither necessary nor required in this case. If a bond is necessary, Mr. Singh prays that the bond be set at one dollar ($1.00). D. Notice With respect to notice, as detailed in the accompanying declaration of Aldon L. Bolanos, Esq., exhaustive efforts were made to put the bank on notice of these proceedings. This included hand-delivering They also include the documents to the local branch manager, several blocks from the federal courthouse. providing the documents to opposing counsel at the Bryan Cave law firm, which telephoned plaintiff’s

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counsel and stated it represented Bank of America in these proceedings. Finally, the documents were faxed to the “Home Loan Team” at Bank of America’s Houston office, using a fax number provided again in the bank’s own correspondence to Mr. Singh. Thus, it is clear that all reasonable and diligent efforts were made to ensure that the bank was on notice of this proceeding. 4. Conclusion Mr. Singh has shown irreparable harm and a likelihood of prevailing on the merits, given what appears to be a clear violation of California law. Additionally, he has made exhaustive efforts to inform the defendant of this hearing. For this reason, it is respectfully submitted that he has met his burden and satisfied the requirements for a Temporary Restraining Order as set forth in the applicable case law and this court’s own local rules. Respectfully Submitted, Law Offices of Aldon L. Bolanos Dated: April 24, 2013 By: /s/ Aldon L. Bolanos, Esq. Attorney for Plaintiff

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Case 2:13-cv-00729-MCE-AC Document 11 Filed 04/24/13 Page 1 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On April 16, 2013, Kevin Singh (“Plaintiff”) filed an “Application for Temporary Restraining Order” (“TRO”) seeking a Court order preventing Bank of America (“Defendant”) from selling Plaintiff’s home on April 22, 2013. (ECF No. 5.) Prior to the TRO hearing, the Court ordered Plaintiff’s counsel to notify all other parties of the hearing and file proof of notice. (ECF No. 7.) Plaintiff’s counsel complied and filed a Notice of Hearing, but Defendants failed to appear at the April 17, 2013, hearing. (ECF No. 8.) In open court and on the record, the Court granted Plaintiff’s request for a TRO, which will remain in effect until the date of the hearing for a Preliminary Injunction which is set for April 29, 2013 at 10:00 AM. The Court granted Plaintiff’s Request for the TRO for the reasons described below. /// 1 v. BANK OF AMERICA, N.A., RECONTRUST COMPANY, Defendant. KEVIN SINGH, Plaintiff, MEMORANDUM AND ORDER No. 2:13-cv-00729-MCE-AC UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Case 2:13-cv-00729-MCE-AC Document 11 Filed 04/24/13 Page 2 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The purpose of a temporary restraining order is to preserve the status quo pending the complete briefing and thorough consideration contemplated by full proceedings pursuant to a preliminary injunction. See Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 438-39 (1974) (temporary restraining orders “should be restricted to serving their underlying purpose of preserving the status quo and preventing irreparable harm just so long as is necessary to hold a hearing, and no longer”); see also Reno Air Racing Ass’n., Inc. v. McCord, 452 F.3d 1126, 1131 (9th Cir. 2006); Dunn v. Cate, No. CIV 08-873-NVW, 2010 WL 1558562, at *1 (E.D. Cal. April 19, 2010). Issuance of a temporary restraining order, as a form of preliminary injunctive relief, is an extraordinary remedy, and Plaintiffs have the burden of proving the propriety of such a remedy. See Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). In general, the showing required for a temporary restraining order and a preliminary injunction are the same. Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001). The party requesting preliminary injunctive relief must show that “he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Resources Defense Council, 555 U.S. 7, 20 (2008); Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting Winter). The propriety of a TRO hinges on a significant threat of irreparable injury that must be imminent in nature. Caribbean Marine Serv. Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988). /// /// /// /// 2 STANDARD

Case 2:13-cv-00729-MCE-AC Document 11 Filed 04/24/13 Page 3 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff owns real property and improvements thereon located in West Sacramento, California, which is located within the Eastern District of California (hereinafter referred to as “the property” unless specified otherwise). The property was purchased by Plaintiff with a loan obtained through Defendant and evidenced by a promissory note. (ECF No. 5-2.) The promissory note is secured by a deed of trust which is recorded against the property. Plaintiff defaulted on the loan in 2008. (Id.) In 2012, Plaintiff and Defendant began negotiating a modification of the loan that would allow plaintiff to remain current on his obligation. (Id.) During the negotiations, Plaintiff provided Defendant detailed information about Plaintiff’s financial situation in exchange for the possibility of a lower monthly payment and interest rate. As stated in open court at the TRO hearing, Defendant has not made a written determination as to whether Plaintiff qualifies for a loan modification. (Id.) Instead, Defendant has repeatedly failed to respond to Plaintiffs inquiries about the status of the loan modification with “passing the buck by bank representatives, who transferred his calls repeatedly to different people in different departments within the bank.” (ECF No. 1.) Even though Plaintiff and Defendant were negotiating a loan modification, Defendant went ahead with the foreclosure process. /// 3 ANALYSIS Alternatively, under the so-called sliding scale approach, as long as the Plaintiffs demonstrate the requisite likelihood of irreparable harm and show that an injunction is in the public interest, a preliminary injunction may issue so long as serious questions going to the merits of the case are raised and the balance of hardships tips sharply in Plaintiffs’ favor. Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-36 (9th Cir. 2011) (concluding that the “serious questions” version of the sliding scale test for preliminary injunctions remains viable after Winter).

Case 2:13-cv-00729-MCE-AC Document 11 Filed 04/24/13 Page 4 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant and other lenders’ practice of negotiating with homeowners in default on their loans for a loan modification while simultaneously advancing the foreclose process is commonly referred to as “dual tracking.” Dual tracking has been heavily criticized by both state and federal legislators. In July 2012, California passed legislation referred to as “The California Homeowner Bill of Rights” which prohibits dual tracking. As of January 1, 2013, “The California Homeowner Bill of Rights went into effect and it offers homeowners greater protection during the foreclosure process. Cal. Civ. Code § 2923.6(b) (2013). Section 2923.6(b) states “it is the intent of the legislature that the mortgage servicer offer the borrower a loan modification or work out a plan if such a modification or plan is consistent with its contractual or other authority.” The statute further provides that “if a borrower submits a complete application for a first lien loan modification . . . the mortgage servicer . . . shall not record a notice of default or notice of sale, or conduct a trustee’s sale, while the complete first lien loan modification application is pending.” Cal. Civ. Code § 2923.6(c) (2013). At the hearing, the Court inquired of Plaintiff’s counsel whether Defendant ever responded to Plaintiff’s complete application for a first lien loan modification. Plaintiff submitted a Declaration which stated in part, “I never received written notice or confirmation or anything whatsoever to state or indicate that I did not qualify for a loan modification.” (ECF No. 10.) Because Defendant has failed to respond to Plaintiff’s application for a first lien loan modification after January 1, 2013, section 2923.6 applies to this case and prevents Defendant from conducting a trustee’s sale while Plaintiff’s application for a first lien loan modification is pending. Accordingly, Plaintiff has adequately shown he is likely to succeed on the merits in light of California’s new Homeowners’ Bill of Rights. Plaintiff has also met the remaining factors of the TRO standard. Plaintiff has demonstrated that Plaintiff will suffer “irreparable harm” if he loses his home because “[he] and [his] family will have nowhere to go and nowhere to stay. . . [his] children will need to leave their schools.” (ECF No. 5-2.) 4

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___________________________________________ MORRISON C. ENGLAND, JR., CHIEF JUDGE UNITED STATES DISTRICT COURT

Further, the balance of equities tips in Plaintiffs’ favor as a TRO merely delays Defendant’s right to foreclose. Finally, an injunction is in the public’s interest as it enforces a recently enacted law designed to protect the public.

CONCLUSION

Accordingly, to preserve the status quo until the hearing on Plaintiff’s Motion for Preliminary Injunction can be had, the Court now orders Defendant to cancel the sale scheduled to take place on April 22, 2013. A hearing on Plaintiff’s Motion for Preliminary Injunction is hereby scheduled at 10:00 AM on Monday, April 29, 2013, in Courtroom 7 before Chief Judge Morrison C. England, Jr. Plaintiff’s Motion shall not be filed later than April 24, 2013 and Defendant’s Opposition shall be filed not later than April 25, 2013. Any reply shall be filed not later than April 26, 2013. IT IS SO ORDERED. DATE: April 24, 2013

Case 2:13-cv-00729-MCE-AC Document 1 Filed 04/15/13 Page 1 of 7 Aldon L. Bolanos, Esq., SBN. 233915 Law Offices of Aldon L. Bolanos, Esq. Sacramento, CA 95814 PH. 916.446.2800 FX. 916.446.2828
www.aldonlaw.com

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Attorneys for Plaintiff Kevin SINGH

United States District Court Eastern District of California

Kevin SINGH, Plaintiff, vs. Bank of America, N.A.,Recontrust Company, N.A.,

Case No.

Verified Complaint for Damages and Injunctive Relief Jury Trial Demanded

Defendants.

1.

Plaintiff Kevin SINGH (“Plaintiff or Mr. Singh”)

brings this complaint for damages due to “dual tracking” and other violations of the California Homeowners’ Bill of Rights by defendants Bank of America N.A., (“Bank of America”) and Recontrust Company, N.A. (“Recontrust”). Jurisdiction is proper because this case involves an amount at issue greater than seventy-five thousand dollars, and there exists complete diversity as between the parties to this suit.

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2.

Plaintiff Mr. Singh took out a loan from Bank of The loan is secured by a

America on October 24, 2005.

promissory note and deed of trust against his home at 2544 Pheasant Hollow Drive, West Sacramento, Count of Yolo, State of California, APN 045-751-006, within this judicial district. 3. 4. Plaintiff defaulted on this loan when his business Beginning on September 13, 2012, Bank of America By letter written on that date, the bank faltered after the Great Recession of 2008. initiated negotiations with Mr. Singh toward a loan modification. requested certain specific information and provided a deadline to provide that information. 5. Mr. Singh provided the requested information However, he never Instead, his repeated within the specified timeframe. next step in the negotiations.

received any confirmation from the bank regarding the inquiries were met with “passing the buck” by bank representatives, who transferred his calls repeatedly to different people in different “departments” within the bank. Ultimately, the response he would receive was that he needed to resubmit the requested information, as it had gotten stale by the passage of time. 6. Then again on December 7, 2012, a day that will live in infamy, Bank of America continued negotiations with Mr. Singh toward a modification of the home loan. Indeed, in a letter from bank representative Larry Hall

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written on that date, the bank states that “We are pleased to let you know that you meet the criteria required…for a new modification program recently announced as a result of the U.S. Department of Justice and State Attorneys General national settlement.” 7. The letter goes on to detail what information is Again, Mr. Singh provided all the needed from Mr. Singh and the deadline to receive the information. required information within the stated timeframes and again, no response or progress was made, and yet again his numerous entreaties and pleas for information were met with the functional equivalent of stonewalling and the classic “run around” until he was ultimately informed that the information provided, which was timesensitive, had again become stale, requiring him to resubmit same. 8. Mr. Singh participated in the charade of “resubmitting” the same information requested by the bank no fewer than seven times. 9. In response, all he received were excuses and statements that the information had been lost, misplaced, or was being handled by someone else in a different department who would ultimately respond once the “paperwork was ready.” 10. Of course the paperwork never would be “ready.” Instead, on March 29, 2013, defendant, through its third party agent and wholly-owned subsidiary Recontrust Company, N.A. (“Recontrust”), caused to be

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delivered by certified mail a Notice of Trustee’s Sale. The Notice of Trustee’s Sale states the home will be sold at auction on April 22, 2013. 11. The real property, like all real property, is unique and special to plaintiff such that money damages and legal remedies will be insufficient to compensate him for the loss of his home. 12. Mr. Singh is informed and believes and based thereon alleges that the bank and its wholly-owned subsidiary Recontrust have been at all times engaged in a shell game. The game essentially involved stringing Mr. Singh along with promises of refinance/modification, and requests for information, all the while moving intently and purposefully toward a foreclosure on his family home. 13. Mr. Singh relied to his detriment on this shell game in the sense that he did not seek alternatives to refinancing with Bank of America, such as short sale, refinancing elsewhere, or the like. Regardless, as set forth below defendant Bank and its agent Recontrust had and have a duty under California law to negotiate in good faith and to not engage in the prohibited and deceitful practice of “dual tracking” the home loan modification process with foreclosure proceedings. ///

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First Cause of Action: Violations of the Homeowners’ Bill of Rights 14. The recently-enacted California law called the Homeowners Bill of Rights States: “It is the intent of the Legislature that the mortgage servicer offer the borrower a loan modification or workout plan if such a plan is consistent with its authority.” Civil Code § 2923.6(b). California If a borrower submits

financials toward a loan modification effort, then the servicer/beneficiary/bank shall not conduct a trustee’s sale while the application is pending and the servicer must make a written determination that the borrower is ineligible. Civil Code § 2923.6(c). 15. Here, Mr. Singh has been actively engaged in loan modification negotiations with the bank while the bank and its third party wholly-owned subsidiary have been taking the necessary steps to conduct a trustee’s sale. This is in direct violation of the California Homeowners’ Bill of Rights. 16. Also under this new law, the mortgage servicer must establish a single point of contact and provide one or more direct means of communication with the single point of contact. Civil Code § 2923.7(a). That contact shall be responsible for communicating the process for foreclosure prevention alternatives and coordinating receipt of all documents associated with same. Id. at (b)(1). Further, that point of contact shall have access to all current information and timely

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provide same to adequately inform the borrower. (b)(2) and (3).

Id.,

17. Here, one of Mr. Singh’s primary problems is that he cannot obtain a straight answer from any of the bank’s myriad number of purported representatives. Instead he has been shuttled from one “department” within the monolithic corporate structure to the next, and invariably the path of communication leads to a wall of frustration. This is a primary wrong that the new California law was meant to right. Second Cause of Action: Declaratory Relief 18. Under California law, it is well-settled that real property is unique and that the legal remedy of money damages would be insufficient to compensate Mr. Singh if his home is taken from him. 2d 310. 19. Here, Mr. Singh is in danger of being deprived of his home by foreclosure sale on April 22, 2013. Therefore, immediate action is required to prevent this harm. He respectfully requests an injunction preventing the sale of his home until such time as his case is heard and adjudicated on its merits. Stockton vs. Newman (1957) 148 CA 2d 558, and Daniels vs. Williams, 125 CA

///

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PRAYER FOR RELIEF WHEREFORE, Plaintiff prays judgment against defendant as follows: 1. 2. 3. For General damages according to proof; For Special damages according to proof; For declaratory relief that Plaintiff is

entitled to title in the property free from any security interest; 4. 5. 6. 7. 8. For an equitable accounting of the alleged For prejudgment interest as allowed by law; For attorney’s fees; For costs of suit; For such other and further relief as the court indebtedness;

may deem proper. Dated: April 11, 2013
Law Offices of Aldon L. Bolanos, Esq.

/s/ Aldon L. Bolanos, Esq. Aldon L. Bolanos, Esq. Attorney for Plaintiff Kevin Singh Verification I, Kevin Singh, am the plaintiff in this action. I have read and reviewed this complaint for damages and injunctive relief and know it to be true of my own personal knowledge. I have provided my attorney with an original of my signature which he has in his possession. I declare same on penalty of perjury under the laws of the United States. /s/ Kevin Singh

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Case 2:13-cv-00729-MCE-AC Document 22 Filed 05/02/13 Page 1 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. BANK OF AMERICA, N.A., RECONTRUST COMPANY, Defendant. On April 15, 2013, Kevin Singh (“Plaintiff”) filed this action against Bank of America (“BoA”) and ReconTrust. Plaintiff’s Complaint alleges BoA engaged in loan modification discussions with Plaintiff while ReconTrust simultaneously advanced the foreclosure process in contravention of California’s Homeowners Bill of Rights. On April 17, 2013, the Court granted Plaintiff’s Application for Temporary Restraining Order (“TRO”) preventing Defendant from selling Plaintiff’s home on April 22, 2013. (ECF Nos. 9, 11). On April 29, 2013, the Court held a preliminary injunction hearing. At issue was whether Defendant should be enjoined from foreclosing on Plaintiff’s home throughout the litigation. At the hearing, the Court orally GRANTED Plaintiff’s Application for a Preliminary Injunction for the reasons described below. (ECF No. 14.) /// /// 1 KEVIN SINGH, Plaintiff, MEMORANDUM AND ORDER No. 2:13-cv-00729-MCE-AC UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Case 2:13-cv-00729-MCE-AC Document 22 Filed 05/02/13 Page 2 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A preliminary injunction is an extraordinary remedy, and Plaintiffs have the burden of proving the propriety of such a remedy by clear and convincing evidence. See Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers, 415 U.S. 423, 442 (1974). The party requesting preliminary injunctive relief must show that “he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Resources Defense Council, 555 U.S. 7, 20 (2008); Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting Winter). /// 2 ANALYSIS ReconTrust is a subsidiary of BoA. ReconTrust provides mortgage default services to BoA. Plaintiff owns real property and improvements thereon located in West Sacramento, California, which is located within the Eastern District of California (hereinafter referred to as “the property” unless specified otherwise). The property was purchased by Plaintiff with a loan obtained through BoA and evidenced by a promissory note. (ECF No. 5-2.) The promissory note is secured by a deed of trust which is recorded against the property. Plaintiff defaulted on the loan in 2008. (Id.) In 2012, Plaintiff and BoA began negotiating a modification of the loan that would allow plaintiff to remain current on his obligation. (Id.) During the negotiations, Plaintiff provided BoA detailed information about Plaintiff’s financial situation in exchange for the possibility of a lower monthly payment and interest rate. BoA has not made a written determination as to whether Plaintiff qualifies for a loan modification. (ECF No. 10.) Even though Plaintiff and BoA were negotiating a loan modification, ReconTrust went ahead with the foreclosure process. BACKGROUND

Case 2:13-cv-00729-MCE-AC Document 22 Filed 05/02/13 Page 3 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff’s Complaint alleges that the Court has diversity jurisdiction. In Defendant’s Opposition, Defendant argues the Court does not have jurisdiction to hear this suit because the parties are not completely diverse. (ECF No. 16.) Under 28 U.S.C. § 1332(a), diversity jurisdiction exists where the amount in controversy exceeds $75,000 and no defendant party shares citizenship in the same state as Plaintiff. Exxon Mobil Corp. v. Allapattah Servs., Inc. 545 U.S. 546, 553 (2005) (citing Strawbridge v. Curtiss, 3 Cranch 267, 2 L. Ed. 435 (1806)). Article III courts are courts of limited jurisdiction, and are presumptively without jurisdiction over civil actions. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The burden of establishing the contrary rests upon the party asserting jurisdiction. Id. In BoA’s Opposition and at the hearing, BoA’s counsel asserted that ReconTrust is a citizen of California which destroys the complete diversity citizenship requirement under 28 U.S.C., section 1332(a). At the hearing, the Court expressed concern over BoA’s lack of admissible proof that ReconTrust’s “main office” is located in California. Regardless, Plaintiff agreed to dismiss Defendant ReconTrust within two days of the hearing to prevent the Court from dismissing the entire case for lack of subject matter jurisdiction. On April 30, 2013, Plaintiff filed a Notice of Voluntary Dismissal. (ECF No. 21.) Now, Bank of America, a citizen of North Carolina, is the remaining Defendant and it is diverse from Plaintiff, a citizen of California. Thus, the Court has diversity jurisdiction to hear this case. BoA and other lenders’ practice of negotiating with homeowners in default on their loans for a loan modification while simultaneously advancing the foreclose process is commonly referred to as “dual tracking.” Dual tracking has been heavily criticized by both state and federal legislators. In July 2012, California passed legislation referred to as “The California Homeowner Bill of Rights” which prohibits dual tracking. As of January 1, 2013, “The California Homeowner Bill of Rights went into effect and it offers homeowners greater protection during the foreclosure process. Cal. Civ. Code § 2923.6(b) (2013). /// 3

Case 2:13-cv-00729-MCE-AC Document 22 Filed 05/02/13 Page 4 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Section 2923.6(b) states “it is the intent of the legislature that the mortgage servicer offer the borrower a loan modification or work out a plan if such a modification or plan is consistent with its contractual or other authority.” The statute further provides that “if a borrower submits a complete application for a first lien loan modification . . . the mortgage servicer . . . shall not record a notice of default or notice of sale, or conduct a trustee’s sale, while the complete first lien loan modification application is pending.” Cal. Civ. Code § 2923.6(c) (2013). At the preliminary injunction hearing, Plaintiff maintained that BoA never responded to Plaintiff’s complete application for a first lien loan modification. BoA does not dispute Plaintiff’s assertion. Neither Plaintiff nor BoA provided the Court with any new evidence at the preliminary injunction hearing. Because BoA has failed to respond to Plaintiff’s application for a first lien loan modification after January 1, 2013, section 2923.6 applies to this case and prevents BoA from conducting a trustee’s sale while Plaintiff’s application for a first lien loan modification is pending. Accordingly, Plaintiff has adequately shown he is likely to succeed on the merits in light of California’s new Homeowners’ Bill of Rights. Plaintiff has also met the remaining factors of the preliminary injunction standard. Plaintiff has demonstrated that Plaintiff will suffer “irreparable harm” if he loses his home because “[he] and [his] family will have nowhere to go and nowhere to stay. . . [his] children will need to leave their schools.” (ECF No. 5-2.) Further, the balance of equities tips in Plaintiffs’ favor as a TRO merely delays Defendant’s right to foreclose. Finally, an injunction is in the public’s interest as it enforces a recently enacted law designed to protect the public. BoA asked the Court to order Plaintiff to make $2,700 monthly bond payments if the Court granted Plaintiff’s Application for a Preliminary Injunction. (ECF No. 16.) Federal Rule of Civil Procedure 65(c) states “the court may issue a preliminary injunction order…only if the movant gives security in an amount that the court considers proper to pay costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” (Emphasis added.) 4

Case 2:13-cv-00729-MCE-AC Document 22 Filed 05/02/13 Page 5 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Accordingly, the Court GRANTS Plaintiff’s Application for a Preliminary Injunction and orders Plaintiff to pay $1,000 bond by Monday, May 6, 2013. (ECF No. 14.) Pursuant to Plaintiff’s filing, ReconTrust is dismissed and no longer a Defendant in this case. (ECF No. 21.) IT IS SO ORDERED. DATE: May 1, 2013
___________________________________________ MORRISON C. ENGLAND, JR., CHIEF JUDGE UNITED STATES DISTRICT COURT

In light of Rule 65, the Court orders Plaintiff to post a $1,000 bond within seven days of the date of the preliminary injunction hearing.

CONCLUSION

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