-SKO Sandoval v. Morrison Financial Services, LLC et al, No. 1:2011cv00043 - Document 7 (E.D. Cal. 2011)
Court Description: ORDER DENYING Request For Temporary Restraining Order and Order to Show Cause Re Preliminary Injunction 2 , signed by Judge Oliver W. Wanger on 1/12/2011. (Gaumnitz, R)
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-SKO Sandoval v. Morrison Financial Services, LLC et al Doc. 7 1 2 3 4 5 UNITED STATES DISTRI CT CO URT 6 FOR THE EASTERN DISTRICT OF C ALIFORNIA 7 8 9 ANTONIO SANDOVAL, Plaintiff, 10 13 MORRISON FINANCIAL S ERVICES LLC, et al., Defendants . 14 15 16 17 ORDER DE NYING REQUEST FOR TEMPORAR Y RESTRAINING ORDER AN D ORDE R TO SHOW CAUSE RE PRELI MINARY INJUNCTI ON (DO C. 2) v. 11 12 1:11-cv- 00043 OWW SKO This act ion concerns real property located at 986 0 Douglas Avenue, in D elhi, California 95315. Plai ntiff, 18 Antonio Sandoval, wh o appears pro se, filed a Com plain t 19 on Janua ry 11, 2011, alleging that non-judicial 20 foreclos ure proceedi ngs have concluded in state c ourt, 21 resultin g in the ser vice of a notice of trustee’s sale on 22 23 24 25 Plaintif f on or arou nd May 14, 2010. See Doc. 1 at 1, 3. It is al leged that “ the notice of trustee’s sale was not filed in good faith” because “the property has [] already 26 [been] a part of a s ubstitution of trustee and fu ll 27 reconvey ance and not ice of cease and desist...” 28 at 1. Doc. 1 1 Dockets.Justia.com 1 2 3 4 5 6 7 The Comp laint appear s to contain only two substan tive causes o f action. F irst, Plaintiff a lleges a violatio n of 18 U. S.C. § 513(a ), which makes it a crime to counterf eit securiti es. Second, Plaintiff allege s that Defendan ts, Morrison Financial Services LLC, U.S. Bank Home Mor tgage, and N ational Default Servicing 8 Corporat ion, violated “Regulation Z of the Truth in 9 Lending Act, pursuan t to Title 5 U.S.C. section 1 635(a) 10 and Titl e 12 C.F.R. 226.23(d)(i).” 11 12 13 14 15 16 Doc. 1. Plaintif f has also f iled an “application for temporar y restrainin g order and order to show cau se re prelimin ary injunction,” in an attempt to b lock t he foreclos ure process. Doc. 2, filed Jan. 11, 2011 . Plaintif f’s applicat ion for injunctive relief rel ies 17 entirely on a legal theory not set forth in his 18 Complain t, namely th at Defendants failed to compl y with 19 the proc edural pre-requisites for pur suing non-judicial 20 21 22 23 24 25 foreclos ure set fort h in California Civil Code § 2923.5. Among ot her things, Plaintiff argues that Defenda nts “never e stablished p roof that it was entitled to perform the non- judicial for eclosure.” Doc. 2 at 6. To obtai n temporary or permanent injunctive relie f, a 26 plaintif f must demon strate likelihood of success on the 27 merits o f his substa ntive claims. 28 2 See Winter v. NRDC, 1 555 U.S. 7 (2008). 2 appears to advance o nly two causes of actio n: (1) Titl e 3 4 5 6 7 As noted above, Plaintiff’s C omplaint 18 U.S.C . § 513(a), and (2) Regulation Z. Plaint iff has no chanc e of success in this civil case on his cl aim that Defendan ts violated 18 U.S.C. § 513(a), which mak es it a crime to counterfeit securities. Plaintiff sugge sts that 8 the “neg otiable inst rument” in questi on, pr esumably a 9 document related to his mortgage loan, qualifies as a 10 counterf eited securi ty. 11 not have standing to bring criminal charges again st 12 13 14 15 16 However, a civil litigan t does Defendan ts under any provision of Title 18. See Linda R.S. v. Richard D., 410 U .S. 614, 619 (1973 ) (“[A] private citizen lack s a judicially cognizable int erest in the pros ecution or n onprosecution of another.”). A court 17 has an i ndependent d uty to ensure that a plaintif f has 18 standing to bring each an d every claim asse rted. 19 Bernhard t v. County of Los Angeles, 2 79 F.3d 862, 868 20 21 22 23 24 (9th Cir . 2002). As Plaintiff does not have stan ding to bring a claim under Title 18, this claim must be dismisse d. Nor is P laintiff lik ely to succeed on his Regulat ion 25 Z claim. The basis for P laintiff’s Regulat ion Z claim is 26 unclear. He alleges that Defendants failed to di sclose 27 “that th e original l oan was created by check book entry, 28 3 1 which ma y be sold in the open market (as a promis sory 2 note) fo r 80-9 0 cents on the dollar w ith no considerat ion 3 4 5 6 7 to Plain tiff;” that “the loan was pre-paid and the Plaintif f would be c onverted into joint tenants f or 30 years;” and that “al l monthly payments of Federal Reserve Notes, t ender for de bt,” which Plaintiff alleges is 8 problema tic be cause “Federal Reserve Notes are 9 valueles s.” 10 11 12 13 14 15 16 17 Doc. 1 at 8. There ar e two types of remedies available under T ILA and Regu lation Z: st atutory damages and rescissio n. U.S.C. § § 1635(f), 1 640(a). not seek damages. Plaintiff’s Complain t does E ven if it did, a claim for st atuto ry damages does not sup port interference with the foreclos ure proceedi ngs. In addit ion to damag es, rescission is available u nder 18 TILA and Regulation Z in some circumstances. 19 1635; 12 C.F.R. § 22 6.23. 20 21 22 23 24 15 15 U.S.C. § The consumer’s r ight t o rescissi on is absolu te only for a period of three days after th e loan is co nsummated, 15 U.S.C. § 1635(a ); 12 C.F.R. § 226.23(a)(3 ), unless the lender fails to provide “materia l disclosure s” at the closing, in which c ase the 25 period i s extended to thr ee years, 15 U.S.C . § 16 35(f) ; 26 12 C.F.R . § 226.23(a )(3). 27 disclose , “Pla intiff must allege (subject t o Rule 11) an 28 Regardless of any fail ure to 4 1 ability to tender in order to state a claim for 2 rescissi on under TIL A and Regulation Z.” 3 4 5 6 7 Garcia v. Wachovia Mortgage Co rp., 676 F.Supp.2d 895, 904-05 (C.D.Cal .2009); see also Gonzalez v. HomeQ Servic ing, 2010 WL 289303, at * 3 (E.D. Cal. Jan. 15, 2010); Yamamoto v. Bank of N.Y., 329 F.3d 1167, 1171 (9th Cir. 2003) 8 (“[R]esc ission shoul d be conditioned on repayment of the 9 amounts advanced by the lender.”) (emphasis omitt ed). 10 “The equ itable goal of rescission under TILA is t o 11 restore the parties to the status quo ante.” 12 13 14 15 16 Am. Mortgage Network, In c. v. Shelton, 486 F.3d 815, 820 ( 4th Cir. 200 7) (internal quotation omitted). The Comp laint does n ot allege that Plaintiff has tendered or has the ability to tender the princip al 17 balance of the loan. 18 allegati ons, any TIL A/Regulation Z claim for resc ission 19 is subje ct to dismis sal. 20 This is required. Absent s uch Plaintiff is not likely to succeed on the merit s of his Regulation Z claim. 21 22 23 24 CONCLUSION Plaintif f’s request for a temporary restraining o rder 25 (“TRO”) is DENIED WI THOUT PREJUDICE because Plain tiff is 26 not like ly to succee d on the merits of either cla im 27 articula ted in his Complaint. 28 5 His Title 18 claim is 1 DISMISSE D for lack o f standing; his Regulation Z claim is 2 subject to dismissal for failure to allege that h e has 3 4 5 6 7 8 9 10 the abil ity to tende r the principal balance of the loa n. It is un necessary to set a hearing on his motion for a TRO. SO ORDER ED January 12, 2011 /s/ Oliver W . Wang er Oliver W. Wang er United States Distri ct Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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