Oct 31, 2014

TENTATIVE RULINGS

LAW & MOTION CALENDAR

Wednesday, October 29, 2014, 3:00 p.m.

Courtroom 16 – Judge Elliot Lee Daum

3035 Cleveland Avenue, Suite 200, Santa Rosa

 

 

CourtCall is available for all Law & Motion appearances, EXCEPT parties in small claims cases and motions for claims of exemption which are mandatory appearances.   Please contact CourtCall directly at (888) 882-6878.

 

The following tentative rulings will become the ruling of the Court unless a party desires to be heard.  If you desire to appear and present oral argument as to any motion, YOU MUST notify the Court by telephone at (707) 521-6547, and all other opposing parties of your intent to appear by 4:00 p.m. today, Tuesday, October 28, 2014.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement

1. SCV-252763; Majesky v. City of Santa Rosa

Plaintiff’s Motion for Judgment Notwithstanding the Verdict is denied.

 

 

2. SCV-256003; Howshar v. Bank of America

Plaintiff has not met its burden of showing all elements necessary to support issuance of a preliminary injunction.

 

Plaintiffs seek an OSC re Preliminary Injunction, to enjoin Defendants from the foreclosure and sale of the real property located at 3642 Bellagio Court, Santa Rosa, CA.

 

The application is made on the grounds that Defendants have no right to foreclose on the Deed of Trust because the Deed of Trust is void or voidable due to Defendants’ fraud.  Plaintiffs allege that each Defendant participated in predatory lending practices by engaging in continuous fraud, including “bait and switch” tactics, and civil conspiracy against Plaintiffs. Plaintiffs allege that the Defendants had one common goal of increasing payments from Plaintiffs to increase each of their respective profits or (b) recovering the Plaintiffs’ residence in a foreclosure.

 

Plaintiffs aver that Defendants are also prohibited from foreclosing on the Deed of Trust because Plaintiffs have a Loan Modification Agreement with the Lender.  The California Homeowners’ Bill of Rights (“HBOR”) prohibits the practice of “dual-tracking.” i.e., pursing foreclosure on a homeowner while they are in a loan modification.  Therefore, Plaintiffs are protected from foreclosure by the statutory protections provided under the HBOR.

 

Plaintiffs allege that they will suffer irreparable damage unless the Court grants this Application because Plaintiffs will lose their home.

 

Plaintiffs’ evidence of fraud and negligent misrepresentation has been effectively refuted by Green Tree’s record of attempting to procure a completed loan modification application from Plaintiffs.  (See Declaration of Jim Grantham and Exhibits attached thereto.)  Thus, Plaintiffs have not met their burden of showing a likelihood of prevailing on the merits of this case at trial.

 

Accordingly, the Application for a Preliminary Injunction is denied.

 

 

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