Case Number: KC066987    Hearing Date: September 02, 2014    Dept: O

Diaz v. Select Portfolio servicing Inc. (KC066987)

Plaintiff Diaz’s MOTION FOR PRELIMINARY INJUNCTION

Respondent: NO OPPOSITION

TENTATIVE RULING

Plaintiff Diaz’s motion for preliminary injunction is GRANTED. Bond, $10,000.

In deciding whether to issue a preliminary injunction, a trial court weighs two interrelated factors: the likelihood the moving party ultimately will prevail on the merits, and the relative interim harm to the parties from the issuance or nonissuance of the injunction. A trial court may not grant a preliminary injunction, regardless of the balance of interim harm, unless there is some possibility that the plaintiff would ultimately prevail on the merits of the claim. (Hunt v. Superior Court (1999) 21 Cal. 4th 984, 999-1000.) PROOF OF FACTS IS ORDINARILY MADE BY AFFIDAVITS OR DECLARATIONS. (CCP 2009.)

A mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent may not record a notice of default pursuant to Section 2924 until all of the following: (1) The mortgage servicer has satisfied the requirements of paragraph (1) of subdivision (b). (2) Either 30 days after initial contact is made as required by paragraph (2) of subdivision (b) or 30 days after satisfying the due diligence requirements as described in subdivision (f). (3) The mortgage servicer complies with subdivision (c) of Section 2923.6, if the borrower has provided a complete application as defined in subdivision (h) of Section 2923.6. (CC 2923.55(a).) A mortgage servicer shall contact the borrower in person or by telephone in order to assess the borrower’s financial situation and explore options for the borrower to avoid foreclosure. (CC 2923.5(a)(2).)

Plaintiff moves for a preliminary injunction to enjoin Defendant from foreclosing on her home. Plaintiff attests that Plaintiff received a Notice of Default, but neither Defendants SPS nor BDFTW, nor any of their authorized agents contacted Plaintiff in order to assess her financial situation and explore options to avoid foreclosure, per CC 2923.55(a)(2). (Diaz Decl., Par. 8.)

Defendants failed to submit any evidence in opposition. Accordingly, the court finds Plaintiff has demonstrated likely success on the merits. As property is unique, Plaintiffs will suffer irreparable harm if an injunction is not granted.

Motion is GRANTED. Bond $10,000.