Min v. Selene Finance, LP

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 CHO UNG MIN, Case No. 23-cv-06335-WHO 8 Plaintiff, ORDER GRANTING EX PARTE 9 v. APPLICATION FOR TEMPORARY RESTRAINING ORDER 10 SELENE FINANCE, LP, et al., Re: Dkt. No. 5 Defendants. [12] 13 Plaintiff’s application for a Temporary Restraining Order (“TRO”) was filed in this court 14 on December 14, 2023. See Dkt. No. 5 (the “Ex Parte App.”). The plaintiff, through counsel, 15 informed defendants Selene Finance, LP and Rushmore Loan Management, LLC on December 13, 16 2023, of his intention to file the Ex Parte App. See Dkt. No. 5-2 (declaration of Jessica Galetta, 17 stating that she, as plaintiff’s counsel, emailed defendants and/or their agents to notify them of the 18 plaintiff’s intent to seek ex parte relief). 19 I issued an order noticing a hearing for December 20, 2023, at 2:00 p.m., and ordering 20 defendants to respond to plaintiff’s contentions by 2:00 p.m. on December 19, 2023. See Dkt. No. 21 8 (the “Order”). The plaintiff was instructed to—and did—send copies of the Order to both 22 defendants. See Dkt. No. 9 (Certificate of Service). Neither defendant responded to the plaintiff’s 23 contentions. I held a hearing on December 20, 2023, at 2:00 p.m. Plaintiff’s counsel appeared; 24 counsel for defendants did not. 25 Federal Rule of Civil Procedure 65 governs TROs. The standard for issuing a TRO is the 26 same as that for issuing a preliminary injunction, which requires the plaintiff to establish: (1) 27 likelihood of success on the merits; (2) likelihood of irreparable harm in the absence of 1 the public interest. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). 2 “Injunctive relief [is] an extraordinary remedy that may only be awarded upon a clear showing 3 that the plaintiff is entitled to such relief.” Id. at 22 . The Ninth Circuit has held that “‘serious 4 questions going to the merits and a hardship balance that tips sharply toward the plaintiff can 5 support issuance of an injunction, assuming the other two elements of the Winter test are also 6 met.” See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011). 7 California law is clear that the foreclosure sale of a person’s home is irreparable harm. See 8 Park Village Apt. Tenants Ass’n, 636 F.3d 1150, 1159 (9th Cir. 2011); Wheat v. Thomas, 208 Cal. 9 306 (1930); Cal Civ. Code § 3387; see also Park Village Apt. Tenants Ass’n v. Mortimer Howard 10 Trust, 636 F.3d 1150, 1159 (9th Cir. 2011) (“the loss of an interest in real property constitutes an 11 irreparable injury.”). The plaintiff here is scheduled to lose his home to foreclosure on December 12 27, 2023. This clearly constitutes a high likelihood of irreparable harm. 13 The plaintiff has also shown numerous, serious questions as to the merits of his claims. He 14 raises several possible violations of California statutes and possible breach of contract claims. See 15 Dkt. No. 5-1, 7-13. These questions include, among other things: (1) whether the defendants 16 failed to issue him a single point of contact with his loan servicer when he sought a foreclosure 17 prevention alternative, in violation of Cal. Civ. Code § 2923.7 ; (2) whether defendant Rushmore 18 Loan Management, LLC failed to properly advise him about his options at the end of COVID-19 19 related loan forbearance, in violation of Cal. Civ. Code § 3273.11 ; (3) whether the defendants 20 breached the implied covenant of good faith and fair dealing; (4) whether the plaintiff 21 detrimentally relied on the defendants’ representations about his loan status such that he is entitled 22 to promissory estoppel; (5) whether defendant Selene Finance failed to follow the foreclosure 23 alternative that defendant Rushmore laid out, in violation of Cal. Civ. Code § 2924.11 (g); and (6) 24 whether both defendants violated the unlawful prong of the Unfair Competition Law, Cal. Bus. & 25 Prof. Code § 17200 by violating the above-mentioned laws. See Dkt. No. 5-1, 7-13. 26 These serious questions, plus the irreparable harm he faces through foreclosure, tip the 27 balance toward the plaintiff. See Alliance for the Wild Rockies, 632 F.3d 1127, 1132 . As this 1 tips in the plaintiff’s favor, and the public interest is served by temporarily enjoining a potentially 2 wrongful foreclosure. See Winter, 555 U.S. 7, 20 . 3 Accordingly, based on the Application, Points and Authorities, supporting declarations and 4 moving papers, and plaintiff’s counsel’s statements at the hearing on December 20, 2023, and 5 good cause having been shown, the Court finds as follows: 6 TEMPORARY RESTRAINING ORDER 7 Pending hearing on the below Order to Show Cause and further order of the Court, 8 defendants Selene Finance, LP and Rushmore Loan Management, LLC, their employees, agents 9 and/or any other person or entity interacting with them or on their behalf, are restrained and 10 enjoined from conducting a Trustee’s Sale for the property located at 7229 Shannon Park Court, 11 South San Francisco, CA 94080. 12 ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION 13 To Defendants Selene Finance, LP and Rushmore Loan Management, LLC and Their 14 Counsel of Record: 15 You are ordered to appear on February 28, 2024, at 2:00 p.m. via Zoom videoconference 16 to show cause why a preliminary injunction should not be issued enjoining the conducting of a 17 Trustee’s Sale for the property located at 7229 Shannon Park Court, South San Francisco, CA 18 94080. 19 This Order to Show Cause and supporting papers, including the Minute Order from today’s 20 hearing, shall be served on Defendants no later than December 22, 2023, at 5:00 p.m. by email, or 21 by physical service. Proof of such service shall be filed and delivered to the Court by no later than 22 December 29, 2023. 23 Plaintiff may file a revised motion for a preliminary injunction by January 24, 2024; 24 defendants shall oppose by February 7, 2024; and plaintiff may reply by February 14, 2024. In the 25 event defendants wish to dissolve or modify the Temporary Restraining Order earlier than 26 February 28, 2024, they may ask Courtroom Deputy Jean Davis to be added to the Case 27 Management Conference calendar (which occur on Tuesdays at 2:00 p.m.) at any time between 1 OTHER MATTERS 2 This case is referred to early mediation through the Court’s ADR Program. 3 IT IS SO ORDERED. 4 Dated: December 20, 2023 \ 6 . liam H. Orrick 7 United States District Judge [13] © [16] = 17 Z 18