Chan v.Val-Chris Investments, Inc

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 SUZANNE NAGY CHAN, et al., Case No. 3:24-cv-02764-JSC 8 Plaintiffs, ORDER RE: MOTION FOR 9 v. PRELIMINARY INJUNCTION 10 VAL-CHRIS INVESTMENTS, INC., Re: Dkt. No. 9 Defendant. [12] 13 Suzanne Nagy Chan and David Chan allege Val-Chris Investments, Inc. (“Val-Chris”) 14 violated its agreement with Plaintiffs by obtaining a non-judicial foreclosure of their home, 15 resulting in its sale at auction on April 26, 2024. (Dkt. No. 1.)1 Plaintiffs move for a preliminary 16 injunction to enjoin Val-Chris from recording the trustee’s deed upon sale of Plaintiffs’ property. 17 (Dkt. No. 9-1.) Having carefully considered the briefing, and with the benefit of oral argument on 18 June 11, 2024, the Court DENIES Plaintiffs’ motion for a preliminary injunction. David Chan has 19 not established standing to seek a preliminary injunction. Susanne Nagy Chan has failed to 20 demonstrate either the likelihood of success on the merits of any of her claims or that she is likely 21 to suffer irreparable harm in the absence of a preliminary injunction. 22 BACKGROUND 23 I. COMPLAINT ALLEGATIONS 24 Suzanne Nagy Chan and David Chan live in a residence located at 5 Woodcrest Cr., 25 Hillsborough, CA 94010. (Dkt. No. 1 ¶ 12.) “On or around December 30, 1999, Plaintiffs 26 purchased the Property and obtained a first position mortgage against the property and [27] 1 concurrently executed a Deed of Trust as security for the note.” (d. § 13.) “On or around January 2 18, 2023,” Suzanne Nagy Chan “entered into a rate and term refinance loan for $500,000.00 with 3 || Defendant VAL-CHRIS” and “concurrently executed a Deed of Trust as security for the note.” 4 || 414.) The Deed of Trust, dated January 9, 2023, is between Suzanne Nagy Chan “a married 5 || woman as her sole and separated property” and Val-Chris. (Dkt. No. 9-2 at 5.) “On or around 6 || January 26, 2023, the loan was assigned to the Felton Family Trust. Defendant VAL-CHRIS is 7 || the servicer of the loan.” (/d. J 15.) 8 “On or around November 8, 2023, a Notice of Default was recorded on the Property.” (d. 9 || § 16.) The Notice of Default indicates the property “is in foreclosure” because Suzanne Nagy 10 || Chan is “$21,090.00” behind on payments. (Dkt. No. 9-2 at 12.) The Notice of Trustee’s Sale is 11 dated February 15, 2024, and indicates the house was scheduled to sell at public auction on March 12 13, 2024. (Ud. at 16-18.) 13 The Chans “contacted Defendant VAL-CHRIS to see if the parties could come to a Loan v 14 || Forbearance Agreement.” (Ud. 49.) On April 17, 2024, Maria Romo sent the “Forbearance and 15 Settlement Agreement” to David Chan. (Dkt. No. 19-1 at 15.) The email stated “[p]lease sign in 16 || front of a notary public and return the originals by 4/19/2023 [sic]. After this date, these 17 documents may become null and void.” (/d.) The Forbearance Agreement provides: 7 18 AGREEMENT: In consideration of the conditions set forth below, Lender shall Instruct its Trustee not to proceed 19 with the Scheduled Publication / Trustee's Sale on the property upon receipt of this document signed, dated and returned with item “A, B, ©, D & E shown below until this loan [s reinstated in full. ALL 0 PAYMENTS MUST BE PAID IN THE FORM OF A CASHIER’S CHECK OR WIRE. THERE IS A $500.00 FORBEARANCE AGREEMENT CHARGE FOR THIS SERVICE. PLEASE NOTE, THAT THIS AGREEMENT DOES NOT RELEASE YOU FROM THE FORECLOSURE AND IF NOT COMPLIED WITH 21 AS STATED BELOW, PUBLICATION! AUCTION FOR SALE OF YOUR PROPERTY WILL PROCEED WITHOUT FURTHER NOTICE. [22] 3 Total amount of Delinquency: $49,692.30 as of April 1, 2024 Statement Attached 9A A. Borrower is to submit proof of current status of property taxes and fire insurance; B. Borrower is to submit the amount of $9,000.00 in form of a cashier's check or money order 5 fo be applied against the October 1, 2023 payment and partial foreclosure costs of $3,375.00; %6 c. Payments for the months of May 1, 2024 through April 1, 2025 will be increased to 39,000.00 and the May 1, 2025 monthly payment to $5,787.30: D. Beginning with the June 1, 2025 payment, your payments will revert back to $5,625.00; 27 E, All other terms and conditions shall remain the same. [28] 1 (Id. at 4.) 2 In their motion for a preliminary injunction, Plaintiffs attached a copy of the Forbearance 3 Agreement that was unsigned and not notarized. (Dkt. No. 9-2 at 20-22.) In reply, Plaintiffs 4 attach a declaration from Suzanne Nagy Chan who explains she “signed the Agreement on April 5 19, 2024” and returned it to Val-Chris. (Dkt. No. 19-1 ¶ 4.) Val-Chris then informed Suzanne 6 Nagy Chan the agreement needed “to be notarized,” and then on “April 22, 2024, Maria Romo 7 from Val-Chris’s Servicing Department resent the Agreement” so the Chans “could get it signed 8 and notarized.” (Id. ¶ 4 and at 14 (email from Maria Romo on April 22 with text “Hello,” then 9 “Please See”).) “On April 26, 2024” Suzanne Nagy Chan “signed the Agreement” and had it 10 notarized. (Id. ¶ 5 and 17.) The Chans then sent the notarized document back to Val-Chris on 11 April 26, 2024 at 11:52:46 AM Pacific Time. (Id. at 19.) 12 “[B]efore” Suzanne Nagy Chan could meet the terms of the Forbearance Agreement (e.g., 13 “submit[ting] proof of current status of property taxes and fire insurance” and “submit[ting] the 14 amount of $9,000.00 in form of a cashier’s check or money order” (Dkt. No. 19-1 at 4)), “the 15 Property was sold at foreclosure on April 26, 2024.” (Dkt. No. 9-2 ¶ 13.) The Trustee’s Deed 16 Upon Sale has not yet been recorded, but “can be recorded as soon as June 17, 2024.” (Dkt. No. 17 19-1 ¶ 9.) 18 LEGAL STANDARD 19 “A plaintiff seeking a preliminary injunction must establish:” (1) “he is likely to succeed 20 on the merits,” (2) “he is likely to suffer irreparable harm in the absence of preliminary relief,” (3) 21 “the balance of equities tips in his favor,” and (4) “an injunction is in the public interest.” Winter 22 v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The Ninth Circuit “use[s] a ‘sliding scale’ 23 approach according to which ‘a stronger showing of one element may offset a weaker showing of 24 another.’” Aargon Agency, Inc. v. O’Laughlin, 70 F.4th 1224, 1231 (9th Cir. 2023) (quoting All. 25 for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011)). However, the likelihood of 26 success on the merits “is a threshold inquiry and is the most important factor.” Baird v. Bonta, 81 27 F.4th 1036 , 1040 (9th Cir. 2023) (quoting Env’t Prot. Info. Ctr. v. Carlson, 968 F.3d 985, 989 (9th 1 likelihood of success on the merits.” Id. (quoting Disney Enters., Inc. v. VidAngel, Inc., 869 F.3d 2 848, 856 (9th Cir. 2017)). 3 When evaluating a preliminary injunction motion, the court may consider otherwise 4 inadmissible evidence. See Flynt Distrib. Co. v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984) 5 (“The urgency of obtaining a preliminary injunction necessitates a prompt determination and 6 makes it difficult to obtain affidavits from persons who would be competent to testify at trial. The 7 trial court may give even inadmissible evidence some weight, when to do so serves the purpose of 8 preventing irreparable harm before trial.”); Republic of the Philippines v. Marcos, 862 F.2d 1355 , 9 1363 (9th Cir. 1988) (“It was within the discretion of the district court to accept this hearsay for 10 purposes of deciding whether to issue the preliminary injunction.”). 11 DISCUSSION 12 II. DAVID CHAN 13 Standing “involves two distinct inquiries”—(1) constitutional standing, which asks 14 “whether a plaintiff has suffered sufficient injury to satisfy the ‘case or controversy’ requirement 15 of Article III” of the Constitution; and (2) statutory standing, which asks “whether a statute has 16 conferred ‘standing’ on that plaintiff.” Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 17 2004). “The party invoking federal jurisdiction bears the burden of establishing” the elements of 18 standing. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). 19 Defendant asserts David Chan lacks standing to sue Val-Chris because he “is not the 20 borrower on the Loan nor is he an owner of the property.” (Dkt. No. 15 at 12.) Plaintiffs’ 21 complaint alleges “Plaintiffs SUZANNE NAGY CHAN and DAVID CHAN (‘Plaintiffs’) at all 22 relevant times, owned the Property located at 5 Woodcrest Ct., Hillsborough, CA 94010 (‘The 23 Property’).” (Dkt. No. 1 ¶ 12.) They further allege “Plaintiffs purchased the Property” in 1999. 24 So, Plaintiffs allege David Chan is an owner of the property. 25 However, Plaintiffs’ allegations are contradicted by the Deed of Trust Plaintiffs attached to 26 their Preliminary Injunction Motion. The Deed of Trust provides the Trustor of the property is 27 “SUZANNE NAGY CHAN AKA SUZANNE D. NAGY A MARRIED WOMAN AS HER 1 Suzanne D. Nagy-Chan alone, and does not make any reference to David Chan. (Id. at 9.) 2 Similarly, the forbearance agreement only mentions Suzanne Nagy Chan and makes no reference 3 to David Chan. (Id. at 20-27.) 4 Plaintiffs, in their reply, assert David Chan has standing because he is a “necessary party to 5 this action” as he “was authorized by Suzanne Nagy Chan to discuss and negotiate with Val-Chris 6 all matters concerning the Loan” and Mr. Chan “exclusively handled all the email and telephonic 7 communications with Val-Chris concerning the loan on Suzanne Nagy Chan’s behalf, including 8 the forbearance proposal.” (Dkt. No. 19 at 2.) Federal Rules of Civil Procedure 19 governs the 9 required joinder of parties. However, standing is not dictated by the rules for the joinder of parties 10 under the Federal Rules of Civil Procedure, but rather is a constitutional and statutory 11 requirement. 12 Plaintiffs have failed to meet their burden of establishing Mr. Chan’s standing to bring this 13 case. “Injury in fact is a constitutional [standing] requirement.” Spokeo, Inc. v. Robins, 578 U.S. 14 330, 339, (2016), as revised (May 24, 2016). In this case, Plaintiffs have provided no evidence 15 Mr. Chan has any monetary interest in the home or that he was a party to any relevant agreements. 16 Therefore, Plaintiffs have failed to explain how Mr. Chan has suffered, or will suffer, injury in the 17 absence of the preliminary injunction. Moreover, Plaintiffs have failed to provide any explanation 18 for how Mr. Chan possesses statutory standing for the relevant statutes. So, Mr. Chan does not 19 have standing to bring this case and is DISMISSED as a Plaintiff. 20 III. SUZANNE NAGY CHAN 21 A. Likelihood of Success on the Merits 22 1. Fair Debt Collections Practices Act 23 The Fair Debt Collections Practices Act (“FDCPA”) prohibits any “debt collector” from 24 using “any false, deceptive, or misleading representation or means in connection with the 25 collection of any debt.” 15 U.S.C. § 1692e. Therefore, a debt collector violates the FDCPA if it 26 makes a “false representation of . . . the character, amount, or legal status of any debt.” 15 U.S.C. 27 § 1692e(2). A “debt collector” is defined as “any person who uses any instrumentality of 1 any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due 2 or asserted to be owed or due another,” but does not include “any person collecting or attempting 3 to collect any debt owed or due or asserted to be owed or due another to the extent such activity . . 4 . concerns a debt which was originated by such person” or “concerns a debt which was not in 5 default at the time it was obtained by such person.” 15 U.S.C. § 1692a(6). Accordingly, while 6 “third party debt collection agents generally qualify as ‘debt collectors’ under the relevant 7 statutory language, [] those who seek only to collect for themselves loans they originated generally 8 do not.” Henson v. Santander Consumer USA Inc., 582 U.S. 79, 81 (2017). 9 Suzanne Nagy Chan alleges Val-Chris violated the FDCPA because it “fail[ed] to honor 10 the terms of the Agreement” and sold the property through foreclosure “before [she] could comply 11 with the terms.” (Dkt. No. 9-1 at 5.) Specifically, Ms. Nagy Chan alleges violations of 15 U.S.C. 12 § 1692e, which provides requirements for “debt collectors.” 13 Ms. Nagy Chan’s FDCPA claim fails because Val-Chris is not a debt collector under the 14 FDCPA. Ms. Nagy Chan alleges she “entered into a rate and term refinance loan for $500,000.00 15 with Defendant VAL-CHRIS.” (Dkt. No. 1 ¶ 14.) The loan was then “assigned to the Felton 16 Family Trust,” in January of 2023, though Val-Chris remained the “servicer of the loan.” (Id. ¶ 17 15.) Ms. Nagy Chan alleges a Notice of Default was recorded on the property in November of 18 2023. Because Val-Chris “assumed servicing responsibilities. . . prior to any default,” Val-Chris 19 is not a debt collector under the FDCPA. Jara v. Aurora Loan Servs., LLC, 633 F. App’x 651 (9th 20 Cir. 2016); see also Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir. 1985) (“The 21 legislative history of section 1692a(6) indicates conclusively that a debt collector does not include 22 the consumer’s creditors, a mortgage servicing company, or an assignee of a debt, as long as the 23 debt was not in default at the time it was assigned.” (citing S. Rep. No. 95–382, 95th Cong., 1st 24 Sess. 3-4, reprinted in 1977 U.S. Code Cong. & Ad. News 1695, 1698 (“Finally, the committee 25 does not intend the definition to cover . . . the collection of debts, such as mortgages and student 26 loans, by persons who originated such loans; mortgage service companies and others who service 27 outstanding debts for others, so long as the debts were not in default when taken for servicing.”))); 1 exempt from the definition of a ‘debt collector’ under § 1692a(6)(F)(iii) because it obtained the 2 right to collect De Dios’s rent before the debt was contractually overdue and before it triggered 3 applicable contractual conditions or state law governing default.”); Lyons v. Bank of Am., NA, No. 4 11-01232 CW, 2011 WL 3607608 , at *12 (N.D. Cal. Aug. 15, 2011) (holding a mortgage 5 servicing company is not a debt collector when the “loan was not in default when it was acquired 6 by” the mortgage servicing company”). 7 Moreover, Plaintiff’s FDCPA claim also fails because “actions taken to facilitate a non8 judicial foreclosure, such as sending the notice of default and notice of sale, are not attempts to 9 collect ‘debt’ as that term is defined by the FDCPA.” Vien-Phuong Thi Ho v. ReconTrust Co., 10 NA, 858 F.3d 568, 572 (9th Cir. 2017). The FDCPA defines debt as “any obligation . . . of a 11 consumer to pay money.” 15 U.S.C. § 1692a(5). Because “[t]he object of a non-judicial 12 foreclosure is to retake and resell the security, not to collect money from the borrower,” the 13 actions surrounding that foreclosure sale do not fall under the FDCPA. Vien-Phuong Thi Ho, 858 14 F.3d at 571; see also Dowers v. Nationstar Mortg., LLC, 852 F.3d 964, 970 (9th Cir. 2017) 15 (“[W]hile the FDCPA regulates security interest enforcement activity, it does so only through 16 Section 1692f(6). As for the remaining FDCPA provisions, ‘debt collection’ refers only to the 17 collection of a money debt.”). 18 Ms. Nagy Chan, in her reply, asserts “the emails in which Defendant is sending the 19 Agreement to Plaintiffs directly contradicts that assertion” (Dkt. No. 19 at 4), because the end of 20 that email states, “This is an attempt to collect a debt and any information collected may be used 21 to do so.” (Dkt. No. 19-1 at 15.) However, while Val-Chris’s employee may have indicated she 22 was attempting to collect a debt, that does not mean Val-Chris was admitting it was a debt 23 collector or collecting on a debt for purposes of the FDCPA. The binding Ninth Circuit precedent 24 discussed above holds that it was not. 25 So, Plaintiff has not demonstrated a likelihood of success on the merits of their FDCPA 26 claim. 27 2. Breach of Contract 1 of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, 2 and (4) the resulting damages to the plaintiff.” Oasis W. Realty, LLC v. Goldman, 51 Cal. 4th 811 , 3 821 (2011). Val-Chris asserts Ms. Nagy Chan has failed to demonstrate she entered into an 4 enforceable contract because the Forbearance Agreement “was never signed by” Ms. Nagy Chan 5 and “there are no allegations that [Ms. Nagy Chan] ever returned the document to Val-Chris or 6 complied with the requirements of the Forbearance Proposal.” (Dkt. No. 15 at 14.) 7 At oral argument, Val-Chris asserted no agreement was entered into because Ms. Nagy 8 Chan failed to return a signed and notarized copy of the agreement by the April 19 deadline 9 provided by Ms. Romo in her email sending the first copy of the Forbearance Agreement, and 10 therefore did not meet the offer’s required terms for acceptance. But, after that April 19 deadline, 11 Ms. Romo sent a second copy of the Forbearance Agreement to the Chans on April 22—this time 12 without any deadline attached. Because “any new offer communicated prior to a valid acceptance 13 of a previous offer, extinguishes and replaces the prior one,” the April 22 communication from 14 Ms. Romo constitutes a second offer. Distefano v. Hall, 263 Cal. App. 2d 380, 385 (Ct. App. 15 1968). Ms. Nagy Chan then accepted the April 22 offer by returning a signed and notarized copy 16 of the agreement on April 26. So, there was a contract formed between the two parties. 17 While Ms. Nagy Chan has provided evidence of a contract, she fails to demonstrate she 18 performed under the agreement or offer any excuse for her nonperformance. Under the 19 Forbearance Agreement’s explicit terms, Val-Chris would stop the scheduled foreclosure sale 20 “upon receipt of” the Forbearance Agreement “signed, dated and returned with item ‘A, B, C, D, 21 & E [sic] shown below.” (Dkt. No. 9-2 at 20.) Specifically, to prevent the foreclosure from 22 proceeding, Suzanne Nagy Chan was required to: (1) “submit proof of current status of property 23 taxes and fire insurance;” and (2) “submit the amount of $9,000.00 in form of a cashier’s check or 24 money order.” (Id.) The Forbearance Agreement provides if Suzanne Nagy Chan did not comply 25 with those terms, then “PUBLICATION/AUCTION FOR SALE OF YOUR PROPERTY WILL 26 PROCEED WITHOUT FURTHER NOTICE.” (Id.) Suzanne Nagy Chan’s declaration indicates 27 she “entered into a Forbearance Agreement” with Val-Chris but does not state she met the 1 April 26, 2024 “before [she] could meet the terms of the agreement.” (Id.) So, she has failed to 2 demonstrate a likelihood of success on the merits of her breach of contract claim. See Odinma v. 3 Aurora Loan Servs., No. C09-4674 EDL, 2010 WL 1199886 , at *4 (N.D. Cal. Mar. 23, 2010) 4 (dismissing breach of contract claim as to a forbearance agreement because “a reading of the 5 forbearance agreement reveals that the lender retained the ability to foreclose if the agreement was 6 not satisfied” and the plaintiffs failed to make the agreement’s required payments). 7 Ms. Nagy Chan argues “[a]t all times, Plaintiff was, and continue to be, ready, willing, and 8 able to perform all conditions required in accordance with the terms of the agreement,” and 9 “Plaintiff signaled this intention by executing the Agreement.” (Dkt. No. 19 at 6.) Suzanne Nagy 10 Chan had been in default since November 2023. She received notice her home was going to be 11 sold at foreclosure scheduled for March 2024. According to the terms of the proposed 12 Forbearance Agreement, Val-Chris would “instruct its Trustee not to proceed with the Scheduled 13 Publication/Trustee’s Sale on the property upon receipt of this document signed, dated, and 14 returned” with the payment of $9,000 and other required documents. (Dkt. No. 19-1 at 4.) The 15 Agreement further provided “THIS AGREEMENT DOES NOT RELEASE YOU FROM THE 16 FORECLOSURE AND IF NOT COMPLIED WITH AS STATED BELOW, 17 PUBLICATION/AUCTION FOR SALE OF YOUR PROPERTY WILL PROCEED WITHOUT 18 FURTHER NOTICE.” (Id.) Accordingly, under the Agreement’s unambiguous terms, Val-Chris 19 was required to instruct its Trustee to delay the scheduled sale only once it received $9,000 from 20 Ms. Chan, among other things. As Ms. Chan has provided no evidence she paid that $9,000, the 21 Agreement did not require Val-Chris to delay the foreclosure. Ms. Chan fails to explain why she 22 was excused from performing her contractual requirements, and therefore is unlikely to succeed on 23 her breach of contract claim. 24 3. Breach of Implied Covenant 25 Under California law, “[i]mplied in every contract is a covenant of good faith and fair 26 dealing.” Cordoba Corp. v. City of Indus., 87 Cal. App. 5th 145 , 156 (2023). “The covenant is 27 read into contracts and functions as a supplement to the express contractual covenants, to prevent a 1 covenants) frustrates the other party’s rights to the benefits of the contract.” Thrifty Payless, Inc. 2 v. The Americana at Brand, LLC, 218 Cal. App. 4th 1230, 1244 (2013) (cleaned up). “The 3 covenant also requires each party to do everything the contract presupposes the party will do to 4 accomplish the agreement’s purposes.” Id. 5 However, “an implied covenant of good faith and fair dealing cannot contradict the express 6 terms of a contract.” Alameda Health Sys. v. Alameda Cnty. Employees’ Ret. Assn., 100 Cal. App. 7 5th 1159, 1190–91 (2024) (quoting Storek & Storek, Inc. v. Citicorp Real Estate, Inc. 100 Cal. 8 App. 4th 44, 55 (2002)). Here, according to the Agreement’s express terms, Val-Chris was only 9 required to delay the trustee’s sale after it received the signed contract and a $9,000 payment. 10 Because Ms. Chan has provided no evidence she made such a payment before the sale of her 11 home, she is not entitled to the contract’s protections according to the contract’s express terms. 12 Accordingly, Ms. Chan has not demonstrated a likelihood of success on the merits of her implied 13 covenant of good faith and fair dealing claim. 14 4. Violation of Unfair Business Practices 15 Ms. Nagy Chan alleges Val-Chris’s “violations of Federal Law and Common law 16 constitute unfair business practices,” under California Business and Professions Code § 17200, et 17 seq.. (Dkt. No. 1 ¶ 45.) California’s Unfair Competition Law (“UCL”) proscribes “unfair 18 competition,” which it defines as “any unlawful, unfair or fraudulent business act or practice and 19 unfair, deceptive, untrue or misleading advertising.” Cal. Bus. & Prof. Code § 17200 . “Because” 20 the statute “is written in the disjunctive, it establishes three varieties of unfair competition—acts or 21 practices which are unlawful, or unfair, or fraudulent.” Cel-Tech Commc’ns, Inc. v. Los Angeles 22 Cellular Tel. Co., 20 Cal. 4th 163, 180 , (1999) (cleaned up). 23 Ms. Nagy Chan appears to rely on the “unlawful” prong of the UCL, as her allegations 24 focus on Defendant’s “violations of Federal Law and Common Law.” (Dkt. Nos. 1 ¶ 45; 9-1 at 7.) 25 “By proscribing ‘any unlawful’ business act or practice the UCL ‘borrows’ rules set out in other 26 laws and makes violations of those rules independently actionable.” Zhang v. Superior Ct., 57 27 Cal. 4th 364, 370 (2013) (cleaned up) (quoting Cel-Tech, 20 Cal. 4th at 180 ). “[V]irtually any law 1 ‘unlawful’ [prong] violation.” Candelore v. Tinder, Inc., 19 Cal. App. 5th 1138, 1155 (2018) 2 (quoting Paulus v. Bob Lynch Ford, Inc. 139 Cal. App. 4th 659, 681 (2006)). Because Ms. Chan 3 has not pled any underlying law violations, their UCL claim also is unlikely to succeed. 4 B. Irreparable Harm 5 Ms. Nagy Chan asserts she has “established that irreparable injury is . . . imminent” in the 6 absence of a preliminary injunction because the “loss of an interest in real property constitutes an 7 irreparable injury.” (Dkt. No. 9-1 at 4 (quoting Park Vill. Apartment Tenants Ass’n v. Mortimer 8 Howard Tr., 636 F.3d 1150, 1159 (9th Cir. 2011)). But, unfortunately, Ms. Nagy Chan has 9 already lost her interest in the property as she admits it was sold at auction on April 26, 2024. 10 (Dkt. No. 9-1 at 3.) And she has failed to demonstrate how her proposed preliminary injunction— 11 delaying recordation of the deed of trust reflecting the sale— will allow her to recover the property 12 and therefore prevent any future additional irreparable harm. “A properly conducted nonjudicial 13 foreclosure sale constitutes a final adjudication of the rights of the borrower and lender.” Nguyen 14 v. Calhoun, 105 Cal. App. 4th 428, 440 (2003) (quoting Moeller v. Lien, 25 Cal. App. 4th 822 , 15 830 (1994)). “As a general rule, a trustee’s sale is complete upon acceptance of the final bid.” Id. 16 “Absent defects in the foreclosure procedure itself, delivery of the trustee’s deed following a 17 foreclosure sale is ‘merely a ministerial act.’” Matson v. S.B.S. Tr. Deed Network, 46 Cal. App. 18 5th 33, 40 (2020) (quoting Nguyen v. Calhoun, 105 Cal. App. 4th 428, 441 (2003)). 19 None of Ms. Nagy Chan’s causes of actions allow for the recission of the sale of the 20 property; indeed, Ms. Nagy Chan admitted at oral argument the new owner of the property is not a 21 party to this lawsuit. Ms. Nagy Chan’s reply refers to monetary damages as the appropriate 22 remedy for each cause of action rather than indicating any of her causes of action can result in the 23 return of the property. Accordingly, Ms. Nagy Chan has failed to demonstrate the likelihood of 24 imminent irreparable injury in the absence of a preliminary injunction. 25 Ms. Nagy Chan surmises “pursuant to Civil Code 2924(m) and Civil Code 1058.5, title 26 does not transfer until a Trustee’s Deed Upon Sale can be recorded,” so she is “within the statutory 27 period to challenge the foreclosure sale and effect a rescission.” (Dkt. Nos. 9-1 at 1-2.) California 1 covers the “finality of sale” of a property. However, Ms. Nagy Chan fails to make any argument 2 as to why under § 2924m the sale of her home is not final or explain how a final sale could be 3 rescinded based on any of her causes of action. Finally, California Civil Code § 1058.5(b) 4 || provides for the impact of a recission of a trustee’s deed but does not indicate a trustee’s deed can 5 || be invalidated based on any of Ms. Nagy Chan’s pled causes of action. So, Ms. Chan has failed to 6 || demonstrate the likelihood of imminent, irreparable harm in the absence of a preliminary 7 ‘|| injunction. 8 CONCLUSION 9 Because Mr. Chan lacks standing to bring this claim, and because Ms. Nagy Chan has 10 || failed to demonstrate either any likelihood of success on the merits or the likelihood of irreparable 11 harm, the Court need not address the remaining preliminary injunction factors and DENIES 12 || Plaintiffs’ motion for a preliminary injunction. 13 This Order resolves Dkt. No. 9. IT IS SO ORDERED. 3 15 Dated: June 11, 2024 [16] & ' ACQUELINE SCOTT CORLE Z 18 Unit#d States District Judge