Schneider v. Bank of America N.A et al
Filing
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ORDER signed by Judge Lawrence K. Karlton on 11/17/11 ORDERING that 9 Plaintiff's request for a TRO to enjoin the Defendant's foreclosure of Plaintiff's property located at 16291 Stone Jug Rd., Sutter Creek, CA 95688, is GRANTED. Th is order is issued as of 5:00 p.m. on November 17, 2011 and will expire fourteen (14) days after its issuance. Pursuant to Eastern District of California Local Rule 302(c)(21), this case is REFERRED to Magistrate Judge Dale A. Drozd for all further pretrial proceedings. (Benson, A.)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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CHRISTOPHER D. SCHNEIDER,
NO. CIV. S-11-2953 LKK/DAD PS
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Plaintiff,
v.
O R D E R
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BANK OF AMERICA N.A., BANK
OF AMERICA MORTGAGE, BANK
OF AMERICA HOME LOANS
SERVICING LP, BALBOA
INSURANCE CO., HOME RETENTION
GROUP, QUALITY LOAN SERVICE
CORP., CLIFF COLER, DOES 1-40,
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Defendants.
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/
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Plaintiff Christopher Schneider, pro se, files this motion for
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a temporary restraining order to prevent Defendants from “taking
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possession of, selling, or showing Plaintiff’s home located at
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16291 Stone Jug Rd., Sutter Creek, CA 95688.”
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9, at 2 (Nov. 14, 2011).
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Service Corp. has set the date for the sale of Plaintiff’s property
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for Friday, November 18, 2011. Id. For the reasons stated herein,
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the court GRANTS Plaintiff’s motion for a temporary restraining
Pl’s Mot., ECF No.
Defendant and trustee Quality Loan
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order.
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I.
FACTS
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On November 7, 2011, Plaintiff Christopher Schneider filed a
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complaint against, inter alia, Defendants Bank of America, N.A.;
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Bank of America Mortgage; Bank of America Home Loan Servicing,
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L.P.; Balboa Insurance Co.; Home Retention Group; and Quality Loan
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Service Corp.
Pl’s Mot., ECF No. 1.
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Plaintiff alleges, inter alia, the following facts. In 2001,
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Plaintiff bought the property in dispute in this case, with
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financing obtained from Bank of America, N.A., in the amount “of
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or around $132,000 at 8% interest fixed for a term of 30 years,
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this equated to a monthly payment of $968.57 per month.”
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5.
Id. at
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Initially, the loan paperwork required that Plaintiff make two
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monthly payments: (1) $968.57 per month for the principal and
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interest; and (2) $57.20 per month for mortgage insurance, as
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required by law, and paid into an escrow account set up by the
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lender.
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a new appraisal on his property was done in or around November of
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2004.”
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dropped the mortgage insurance required and closed Plaintiff’s
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escrow account, thereby lowering Plaintiff’s monthly payments “from
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$1025.77 to $968.57 for [principal and interest] only, and per the
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Deed of Trust the monthly payment on the note was to be $968.57
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until 02/01/31.”
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Id. at 5-6.
Id. at 6.
Plaintiff made these monthly payments “until
After reappraisal, Bank of America, N.A.,
Id.
In or around May 2010, Plaintiff received a notice from
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Defendants that Bank of America Home Loan Servicing, L.P., had not
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received a copy of Plaintiff’s homeowner’s insurance policy.
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Plaintiff argues that, because Defendants, for “the prior 8-9
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years,” had not asked for copies of the policies, they had not
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attempted to enforce any of the contract provisions that specified
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how Plaintiff was to maintain such insurance, and they had not sent
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him prior notices that they had concerns with the way he insured
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his property, Defendant’s silence constitutes a waiver.
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“December 2010, after 6 months continuous effort,” Plaintiff
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received a binding insurance policy, with coverage effective until
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December 2011.
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Defendants Bank of America, N.A. and Bank of America Home Loan
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Servicing, L.P., at that time.
Id. at 7.
Id.
Id.
In
Plaintiff sent a copy of this policy to
Id.
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Because Plaintiff was uninsured from May to December of 2010,
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Defendants placed a lender placed policy (“LPP”) on his property
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during that time, which was allegedly cancelled by Defendants in
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December 2010, but for which Plaintiff was billed “until March
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2011.” Id. Plaintiff requested details of the LPP that Defendants
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purchased for his property on his behalf to ensure that Plaintiff
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was not being held to a different standard in insurance provision
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than Defendants, and “offered a full tender of the amounts ow[]ed
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on this LPP,” but Defendants “did not respond,” and instead,
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“created an improper and involuntary escrow account and demanded
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an increase in [Plaintiff’s] payment to compensate for their
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actions.”
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Id. at 7-8.
As a result of the parties’ dispute over these insurance
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funds, and therefore a resulting dispute over Plaintiff’s total
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payments required per month (including the amount of his principal
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and interest), Defendants, “in or around October 2010,” began to
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refuse payments that the Plaintiff tendered in the amount of
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$968.57 per month, and instead, “demanded Plaintiff’s monthly
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payment to immediately become $1179.70.”
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Pl’s Mot., ECF No. 9, at 4.
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account under Civil Code § 1500 in the name of the original
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creditor (Bank of America, N.A.) in order to preserve his rights
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in this dispute,” and has “deposited his monthly payments of
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$968.57 into that account” since that time. See Pl’s Mot., ECF No.
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1, at 8.
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monthly notices of such deposits; (2) he made that account and all
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the amounts in it unconditionally the property of Defendants; and
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(3) that he made full, proper, and timely tender of payments with
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the specific intent of performance in full each month.
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ECF No. 9, at 4.
See id. at 8; see also
Plaintiff then “opened a dispute
Plaintiff alleges that (1) he sent Defendants timely
Pl’s Mot.,
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Plaintiff alleges that, even though Defendants had 7 months
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to object to Plaintiff’s account, they “made no such efforts,” and
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now “seek the drastic measure of foreclosure on Plaintiff’s home
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when he is not even late on his payments.”
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Id. at 5.
Now before the court is Plaintiff’s motion for a temporary
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restraining
order,
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Defendants
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Plaintiff’s home located at 16291 Stone Jug Rd., Sutter Creek, CA
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95688.”
from
filed
“taking
Id. at 2.
on
November
possession
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of,
2011,
to
prevent
selling,
or
showing
Defendant and trustee Quality Loan Service
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Corp. has set the date for the sale of Plaintiff’s property for
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Friday, November 18, 2011.
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TRO, Plaintiff has submitted a declaration setting forth his
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attempts to notify Defendants of his TRO motion.
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No. 7 (Nov. 10, 2011).
Id.
In support of his motion for a
Pl’s Decl., ECF
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II. STANDARD OF REVIEW FOR FED. R. CIV. P. 65 MOTION FOR
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A TEMPORARY RESTRAINING ORDER
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Fed.
R.
preliminary
Civ.
P.
65
injunctions
provides
or
authority
temporary
to
issue
restraining
either
orders.
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Ordinarily, a plaintiff seeking a preliminary injunction must
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demonstrate that it is “[1] likely to succeed on the merits, [2]
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that he is likely to suffer irreparable harm in the absence of
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preliminary relief, [3] that the balance of equities tips in his
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favor, and [4] that an injunction is in the public interest.”
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Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th
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Cir. 2009) (quoting Winter v. Natural Res. Def. Council, 129 S. Ct.
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365, 374 (2008)).
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order are largely the same.
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Brush & Co., 240 F.3d 832, 839 (9th Cir. 2001); see also Wright and
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Miller, 11A Fed. Prac. & Proc. Civ. § 2951 (2d ed.).
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emergency measure, intended to preserve the status quo pending a
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fuller hearing on the injunctive relief requested.
Am.
The requirements for a temporary restraining
Stuhlbarg Int’l Sales Co. v. John D.
A TRO is an
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Courts apply a more stringent standard where an adverse party
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has not received notice of a motion for a TRO. Specifically, courts
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may only “issue a temporary restraining order without written or
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oral notice to the adverse party or its attorney if: [¶] (A)
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specific facts in an affidavit or a verified complaint clearly show
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that immediate and irreparable injury, loss, or damage will result
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to the movant before the adverse party can be heard in opposition;
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and [¶] (B) the movant’s attorney certifies in writing any efforts
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made to give notice and the reasons why it should not be required.”
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Fed. R. Civ. P. 65(b)(1).
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II. Analysis
Plaintiff
seeks
a
temporary
restraining
order
enjoining
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Defendants’ foreclosure of his home loan. Because the foreclosure
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sale is scheduled for Friday, November 18, 2011, Plaintiff’s loss
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will result before the Defendants can be heard in opposition.
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Plaintiff, proceeding pro se, has submitted a declaration setting
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forth his efforts to notify the Defendants of Plaintiff’s plans to
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file a TRO in this case.
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response to his efforts to notify the Defendants of his plan to
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file motion for a TRO in this case, due to the serious risk of loss
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faced
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Defendant,
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Defendants’ receipt of notice is not required in this instance.
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Thus, these facts satisfy the requirements of Federal Rule of Civil
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Procedure 65(b)(1).
by
Plaintiff,
the
court
and
Although Plaintiff did not receive a
Plaintiff’s
determines
efforts
that
to
notify
confirmation
of
the
the
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The balance of equities tip sharply in support of Plaintiff
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because he will lose his home on November 18, 2011 if a temporary
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restraining order does not issue.
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suffer no serious hardship as their security in the home will
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remain. Similarly, Plaintiff faces irreparable harm of foreclosure
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In contrast, defendants will
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of his home.
See, e.g., Sundance Land Corp. v. Community First
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Federal Sav. & Loan Ass’n., 840 F.2d 653 (9th Cir. 1988) (loss of
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real property, because it is unique, is an irreparable injury).
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Furthermore, the court determines that it is in the public interest
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to require lenders to comply with existing California statutes
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enacted to protect homeowners from unnecessary foreclosures.
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Because each of these elements tip in Plaintiff’s favor, Plaintiff
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must only establish a serious question as to his likelihood of
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success for the court to issue a TRO.
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Here, Plaintiff has submitted evidence indicating that, per
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the terms of his initial loan agreement, he has made regular
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payments of $968.57 directly to Defendants, or to an account opened
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in Defendant Creditor’s name.
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he has made attempts to pay the initial amount that caused the
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dispute between the parties–-that is, the insurance costs which the
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Defendants have charged Plaintiff for insurance costs incurred
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between May and December 2010–-but that the Defendants have failed
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to respond to these inquiries and offers regarding these insurance
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payments.
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serious possibility that Plaintiff could succeed on the merits of
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his complaint.
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Plaintiff has also indicated that
The court determines that these facts establish a
Accordingly, the court ORDERS as follows:
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[1]
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Defendant’s foreclosure of Plaintiff’s property located
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at 16291 Stone Jug Rd., Sutter Creek, CA 95688, is
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GRANTED.
Plaintiff’s
request
for
a
TRO
to
enjoin
the
This order is issued as of 5:00 p.m. on
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November 17, 2011 and will expire fourteen (14) days
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after its issuance.
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[2] Pursuant to Eastern District of California Local
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Rule 302(c)(21), this case is REFERRED to Magistrate
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Judge
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proceedings.
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IT IS SO ORDERED.
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DATED:
Dale
A.
Drozd
November 17, 2011.
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for
all
further
pretrial
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