Opinion
NO. CIV. S-10-177 MCE/DAD PS.
January 22, 2010
ORDER
This case concerns the pending foreclosure of plaintiff's home and plaintiff's eviction from this home. Plaintiff has filed an ex parte motion for a temporary restraining order ("TRO"). Because plaintiff is unable to obtain injunctive relief for the violations of federal law described in the motion, plaintiff's motion is denied.
I. STANDARD
Fed.R.Civ.P. 65 provides authority to issue either preliminary injunctions or temporary restraining orders. Ordinarily, a plaintiff seeking a preliminary injunction must demonstrate that it is "[1] likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest." Am. Trucking Ass'ns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter v. Natural Res. Def. Council, 129 S. Ct. 365, 374 (2008)). The requirements for a temporary restraining order are largely the same. Stuhlbarg Int'l Sales Co. v. John D. Brush Co., 240 F.3d 832, 839 (9th Cir. 2001); see also Wright and Miller, 11A Fed. Prac. Proc. Civ. § 2951 (2d ed.).
Courts apply a more stringent standard where an adverse party has not received notice of a motion for a TRO. Specifically, courts may only "issue a temporary restraining order without written or oral notice to the adverse party or its attorney if: [¶] (A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and [¶] (B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required." Fed.R.Civ.P. 65(b)(1).
II. ANALYSIS
Plaintiff seeks a restraining order enjoining defendant's foreclosure of his home loan. The balance of hardships tips sharply in support of plaintiff because he will lose his home if an injunction does not issue. In contrast, defendants will suffer no serious hardship as their security in the home will remain. Similarly, plaintiff faces the irreparable harm of foreclosure of his home. Because both of these elements tip sharply in plaintiff's favor, plaintiff must only establish a serious question as to his likelihood of success for the court to issue a TRO.
Plaintiff contends that he is entitled to such an order because (1) he is entitled to relief under the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. §§ 2601, et seq.; and (2) he is entitled to relief in the form of rescission under the Truth in Lending Act, 15 U.S.C. §§ 1601, et seq. Because plaintiff is not entitled to injunctive relief under either of these statutes, he has not established any significant likelihood of success on the merits. Thus, his motion for a TRO is denied.
A. RESPA
Plaintiff's RESPA claim is based upon his lender's failure to provide plaintiff with a "Good Faith Estimate" as required by RESPA. 24 C.F.R. § 3500.7. "A loan originator that violates the requirements of this section shall be deemed to have violated section 5 of RESPA." Id. Section 5 of RESPA only affords the following types of relief for individual plaintiffs:
(A) any actual damages to the borrower as a result of the failure; and
(B) any additional damages, as the court may allow, in the case of a pattern or practice of noncompliance with the requirements of this section, in an amount not to exceed $1,000.
12 U.S.C. § 2605(f)(1). While plaintiff may be entitled to relief based on defendants failure to provide a good faith estimate, such failure cannot be remedied through injunctive relief, including enjoining foreclosure of plaintiff's home. Moreover, plaintiff's claim under RESPA is not affected by foreclosure of his home. Specifically, plaintiff still has a cause of action under RESPA for failure to provide a good faith estimate at loan origination after his home is foreclosed upon. Thus, plaintiff's RESPA claim does not entitle plaintiff for a TRO enjoining the foreclosure of his home because he is not likely to succeed on the merits of this claim insofar as he seeks injunctive relief.
B. TILA Rescission
Plaintiff also argues that foreclosure of his home should be enjoined because he is entitled to rescission under TILA. While a rescission claim may warrant the granting of a TRO, plaintiff's own admissions bar him from rescission under TILA. Specifically, Regulation Z, which implements TILA, states that, "The right to rescind does not apply to . . . a residential mortgage transaction." 12 C.F.R. § 226.15(f). Regulation Z defines a residential mortgage transaction as, "a transaction in which a mortgage, deed of trust, purchase money security interest arising under an installment sales contract, or equivalent consensual security interest is created or retained in the consumer's principal dwelling to finance the acquisition or initial construction of that dwelling." 12 C.F.R. § 226.2(a)(24). Plaintiff admits that his TILA claim arises out of the original loan to acquire his home. Thus, plaintiff's TILA claim does not entitle plaintiff for a TRO enjoining the foreclosure of his home because he is not likely to succeed on the merits of this claim.
III. CONCLUSION
For the foregoing reasons, plaintiff's motion for a temporary restraining order, Doc. No. 2, is DENIED.IT IS SO ORDERED.