Tedder v. Deutsche Bank Nat'l Trust Co. As Tr. Of The
| Decision Date | 17 February 2011 |
| Docket Number | CIVIL NO. 11-00083 LEK-KSC |
| Parties | CHERIE DIANE TEDDER, Plaintiff, v. DEUTSCHE BANK NATIONAL TRUST COMPANY as TRUSTEE of the RESIDENTIAL ASSET SECURITIZATION TRUST 2007-A8, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-H, UNDER THE POOLING AND SERVICING AGREEMENT DATED JUNE 1, 2007; and ONE WEST BANK, FSB dba INDYMAC MORTGAGE SERVICES,, Defendants. |
| Court | U.S. District Court — District of Hawaii |
On February 2, 2011, Plaintiff Cherie Diane Tedder ("Plaintiff") filed a Complaint for Damages and Injunctive Relief ("Complaint") [Dkt. no. 1] and Ex Parte Motion for Temporary Restraining Order and Motion for Preliminary Injunction ("Motion"). [Dkt. no. 4.] The certificates of service appended to the Complaint and Motion indicate that both pleadings were sent to all parties via United States Mail. The Court held a status conference on the Motion on February 3, 2011. Appearing for Plaintiff was John Harris Paer, Esq. Charles Prather, Esq., made a special appearance for Defendants Deutsche Bank National Trust Company, as Trustee, and OneWest Bank FSB dba IndyMac Mortgage Services (collectively "Defendants"). At the status conference, Mr. Prather represented that the auction of Plaintiff's home scheduled for February 9, 2011 had been continued for approximately one month to sometime in March 2011. The Court scheduled a hearing on Plaintiff's Motion for February 22, 2011 at 1:30, and set the following briefing schedule: Defendants' memorandum in opposition was due February 8, 2011 and Plaintiff's reply was due February 11, 2011.
On February 8, 2011, Defendants filed a Declaration of Charles R. Prather ("Declaration"). [Dkt. no. 6.] The Declaration states that Mr. Prather, along with others in his office, made multiple attempts to contact the Defendants "to secure retention or encourage the Defendants to seek other counsel." [Declaration at 1 8.] According to Mr. Prather, "[d]espite multiple attempts, I was unable to obtain any response regarding possible representation of the Defendants in this action as of the date set by this Court for Defendants to file their Opposition to Plaintiff's Motion." [Id. at 1 9.] Defendants have not filed anything further. As of the date of this Order, Plaintiff has not filed a response to the Declaration.
Under the circumstances, the Court finds this matter suitable for disposition without a hearing pursuant to Rule LR7.2(d) of the Local Rules of Practice of the United States District Court for the District of Hawai'i ("Local Rules"). The hearing on the Motion is therefore VACATED. After careful consideration of the Motion, supporting and opposing documents, and the relevant legal authority, Plaintiff's Motion is hereby GRANTED for the reasons set forth below.
The standard for issuing a temporary restraining order is identical to the standard for issuing a preliminary injunction. Brown Jordan Int'l, Inc. v. Mind's Eye Interiors, Inc., 236 F. Supp. 2d 1152, 1154 (D. Hawai'i 2002). In Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365, 374 (2008), the Supreme Court explained that "[a] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." So long as all four parts of the Winter test are applied, "a preliminary injunction [may] issue where the likelihood of success is such that 'serious questions going to the merits were raised and the balance of hardships tips sharply in [plaintiff's] favor.'" Alliance for Wild Rockies v. Cottrell, 622 F.3d 1045, 1049 (9th Cir. 2010) (quoting Clear Channel Outdoor, Inc. v. City of Los Angeles, 340 F.3d 810, 813 (9th Cir. 2003)).
The allegations in Plaintiff's Complaint and Motion satisfy this test. Plaintiff alleges, inter alia, that Defendants violated the Federal Truth in Lending Act, 15 U.S.C. § 1601 et seq. ("TILA"), and breached a Forbearance Agreement. The Forbearance Agreement drafted by Defendant IndyMac Mortgage Services, a division of OneWest Bank FSB ("Defendant IndyMac"), dated December 14, 2010 and signed by Plaintiff on December 20, 2010, states that Defendant IndyMac "will suspend collections foreclosure upon receipt of the signed agreement and first payment." [Complaint, Exh. G.] Plaintiff claims that she has made all payments required by the Forbearance Agreement. Plaintiff received notice in mid-December 2010 that her home would be sold pursuant to a non-judicial foreclosure sale, set for February 9, 2011. [Complaint 11 26-27.]
On January 6 and 26, 2011, Plaintiff's counsel spoke with Derek Wong, Esq., counsel for Defendants in the foreclosure matter, 1 who informed Plaintiff's counsel that the auction had not been canceled, and that Mr. Wong could not cancel the auction without instruction to do so from his client. [Complaint 11 30, 35.] According to Plaintiff, she called Defendant IndyMac "many times in an effort to obtain written confirmation that the auction has been canceled, and to have IndyMac cancel the auctionand instruct its Hawaii attorneys to that effect." [Complaint 1 36.] In response, "IndyMac has told her that there would be no auction and that the forbearance agreement is all she needs for that purpose, but it has not instructed its attorneys to cancel the auction, and thereafter has not returned her calls." [Complaint 1 37.] Mr. Wong, however, "has stated that the sale cannot be postponed unless and until he gets written instruction to that effect from IndyMac." [Complaint 1 38.] At present, the auction of Plaintiff's home is set for sometime in March 2011.
The Court finds that the likelihood of success is such that...
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