Sheena Pascascio v. New Century Mortgage Corporation et al
Filing
26
MINUTES (IN CHAMBERS) ORDER Denying Plaintiff's Ex Parte Request for a Temporary Restraining Order by Judge Philip S. Gutierrez denying 23 Ex Parte Application for TRO: Based on the foregoing, the Court DENIES Plaintiff's ex parte application for a temporary restraining order. (see document for further details) (bm)
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 12-839 PSG (FMOx)
Title
Sheena Pascascio v. New Century Mortgage Corp., et al.
Present:
Date
May 16, 2012
The Honorable Philip S. Gutierrez, United States District Judge
Wendy K. Hernandez
Deputy Clerk
Not Present
Court Reporter
Attorneys Present for Plaintiff(s):
Attorneys Present for Defendant(s):
Not Present
Proceedings:
n/a
Tape No.
Not Present
(In Chambers) Order Denying Plaintiff’s Ex Parte Request for a
Temporary Restraining Order
Before the Court is pro se Plaintiff Sheena Pascascio’s ex parte application for a
temporary restraining order. The Court finds the matter appropriate for decision without oral
argument. See Fed. R. Civ. P. 78; L.R. 7-15. Having considered the papers submitted in support
of the application, the Court DENIES the application.
I.
Background
On January 31, 2012, Plaintiff Sheena Pascascio (“Plaintiff”) brought an action for fraud
and quiet title against Defendants New Century Mortgage Company (“New Century”), Western
Progressive LLC (“Western Progressive”), Christina Carter, Nathan Sands, Deutsche Bank
National Trust Company (“Deutsche”), and Mortgage Electronic Registration Systems Inc.
(“MERS”) (collectively, “Defendants”), arising from the purportedly wrongful foreclosure of her
home. See Dkt. # 1. Plaintiff claims she was fraudulently induced into executing the Note and
Deed of Trust, and that Defendants conducted an illegal trustee’s sale due to defects in the
foreclosure process. See Compl.
On October 16, 2006, Plaintiff refinanced the Property by obtaining a $461,250.00 loan
from New Century Mortgage Corporation secured by a Note and a Deed of Trust against the
Property. See Compl., Ex. A. Plaintiff subsequently became delinquent on her payments and
Western Progressive, in its capacity as Trustee, recorded a notice of default and election to sell
under deed of trust on January 4, 2011. See id., Ex. D. The notice of default indicates that
Plaintiff stopped making payments on May 1, 2010 and was in arrears in the amount of
CV 11-874 (04/11)
CIVIL MINUTES - GENERAL
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 12-839 PSG (FMOx)
Date
Title
May 16, 2012
Sheena Pascascio v. New Century Mortgage Corp., et al.
$39,414.95 as of January 2, 2011. See id., Ex. D. When Plaintiff did not cure her arrearage, a
notice of trustee’s sale was recorded on April 13, 2011. See RJN, Ex. 4. Plaintiff then filed a
voluntary petition for bankruptcy in the Central District on May 5, 2011, which was terminated
on August 30, 2011. See RJN, Ex. 1. A trustee’s deed upon sale was recorded on October 13,
2011, evidencing that the property had been sold to Deutsche on September 28, 2011. See
Compl., Ex. E.
Over four months later, Plaintiff filed this case. See Dkt. # 1. Plaintiff did not prosecute
the action beyond filing an improper First Amended Complaint (“FAC”) on April 10, 2012, in
lieu of opposing Defendants’ motion to dismiss. See Dkt. # 11, 14. Like the original Complaint,
the FAC states claims for quiet title, fraud, and wrongful foreclosure. See Dkt. # 14. Defendants
filed a second motion to dismiss the FAC on May 4, 2012. See Dkt. # 17. Plaintiff now seeks
ex parte relief for a temporary restraining order. See Dkt. # 23.
II.
Legal Standard
The law on ex parte applications is well-settled in this circuit. In order to justify ex parte
relief, the moving party must establish (1) that its cause will be irreparably prejudiced if the
underlying motion is heard according to regular noticed motion procedures, and (2) that it is
without fault in creating the crisis that requires ex parte relief, or that the crisis occurred as a
result of excusable neglect. See Mission Power Eng’g Co. v. Continental Cas. Co., 883 F. Supp.
488, 492 (C.D. Cal. 1995).
III.
Discussion
Plaintiff’s ex parte application fails because she has not shown she is without fault in
creating the crisis, if any, that requires ex parte relief. Plaintiff knew of Defendants’ election to
sell the property over a year ago when she received the notice of trustee’s sale on April 13, 2011.
The Court also notes that although the trustee’s sale took place on September 28, 2011, Plaintiff
waited four months before filing the present lawsuit. Moreover, in the three month span
between filing her original Complaint and this application for ex parte relief, Plaintiff’s action in
the case was limited to filing an improper First Amended Complaint in response to Defendants’
motion to dismiss. Plaintiff offers no explanation for her dilatory conduct and failure to pursue
her rights prior to this “emergency” application for a temporary restraining order.
Second, even if the court were to excuse the delay, Plaintiff does not allege an actual
emergency or meaningfully explain why her cause will be irreparably prejudiced if heard
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O
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 12-839 PSG (FMOx)
Date
Title
May 16, 2012
Sheena Pascascio v. New Century Mortgage Corp., et al.
according to regular noticed motion procedures. Indeed, the relief Plaintiff hopes to obtain via
an injunction or temporary restraining order is unclear. In her prayer, Plaintiff asks only that
Defendants be restrained “from further encroachment of the subject matter ‘Real Property,’” and
that the Court issue an order “requiring Defendants to show cause...why they should not be
enjoined as hereinafter set forth.” However, nothing further is set forth, and, as the Court has
already noted, the trustee’s sale took place over four months before Plaintiff filed suit.
Plaintiff does argue that she “is likely to suffer irreparable harm if the foreclosure sale is
allowed to stand, and subsequent Unlawful Detainer advances.” See Ex Parte App., 5:12-14.
But there is no allegation in the Complaint, the FAC, or Plaintiff’s supporting documentation
that an unlawful detainer has been filed. In any event, were the court to assume that an unlawful
detainer is pending and presents a likelihood of irreparable injury, the ex parte application would
still fail on the merits because Plaintiff has not shown a likelihood that she will succeed on her
quiet title and wrongful foreclosure claims. See Cal. Indep. Sys. Operator Corp. v. Reliant
Energy Serv., 181 F. Supp. 2d 1111, 1126 (E.D. Cal. 2001) (holding that the standard for issuing
a temporary restraining order requires that the moving party show “(1) a probability of success
on the merits, and (2) the possibility of irreparable injury should the restraining order not issue”).
The factual basis for Plaintiff’s application rests on her assertion that “it appears likely”
that defendants did not comply with California Civil Code Section 2923.5(a)(2)’s requirement
that a “mortgagee, beneficiary, or authorized agent shall contact the borrower in person or by
telephone in order to assess the borrower’s financial situation and explore options for the
borrower to avoid foreclosure” at least 30 days prior to filing a notice of default. See Ex Parte
App. 4:20-26. Plaintiff also contends that she “rescinded” the notice of default. See id., Ex. D.
With respect to section 2923.5, Plaintiff’s own authority, Mabry v. Sup. Ct., 185 Cal.
App. 4th 208, 214, 221, 110 Cal. Rptr. 3d 201 (2010), makes clear that the exclusive “remedy for
noncompliance is a simple postponement of the foreclosure sale, nothing more,” Plaintiff’s
“right of action is limited to obtaining a postponement of an impending foreclosure to permit the
lender to comply with section 2923.5,” and that “nothing in section 2923.5 [] even hints that
noncompliance with the statute would cause any cloud on title after an otherwise properly
conducted foreclosure sale.” Because the sale took place months ago and noncompliance does
not affect the validity of title after a sale has taken place, Plaintiff has no likelihood of
succeeding on the merits of her quiet title or wrongful foreclosure claims on this basis.
Likewise, the document attached to Plaintiff’s application purporting to “rescind” the
notice of default provides no basis for relief. As the defaulting Trustor, Plaintiff had no
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O
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 12-839 PSG (FMOx)
Date
Title
May 16, 2012
Sheena Pascascio v. New Century Mortgage Corp., et al.
authority to sua sponte rescind the notice of default recorded against her by the Trustee on
January 4, 2011. See Ex Parte Application, Ex. D. Finally, under California law, a party
seeking to set aside a foreclosure or trustee’s sale must make a “valid and viable tender of
payment of the indebtedness owning.” Castle v. Mortgage Electronic Registration Systems, Inc.,
2011 WL 3626560, at *11 (C.D. Cal. Aug. 16, 2011) (citing, inter alia, Karlsen v. Am. Sav. &
Loan Ass’n, 15 Cal. App. 3d 112, 117-18, 92 Cal. Rptr. 851 (1971)). Plaintiff nowhere alleges
an ability to tender the amount owed on her loan.
In sum, Plaintiff fails to demonstrate both that an emergency not of her own making
justifies ex parte relief and that her probable success on the merits warrants issuance of a
temporary restraining order. See Cal. Indep. Sys., 181 F. Supp. 2d at 1126.
IV.
Conclusion
Based on the foregoing, the Court DENIES Plaintiff’s ex parte application for a
temporary restraining order.
IT IS SO ORDERED.
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