1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 FROBIE ERNEST, Case No. 4:24-cv-02109-JD

8 Plaintiff, ORDER RE TRO v. 9

10 SELECT PORTFOLIO SERVICING, INC, Defendant. 11

12 Plaintiff Frobie Ernest alleges that defendant Select Portfolio Servicing, Inc. (SPS) 13 mishandled a forbearance request for a residential mortgage on Ernest’s home. On April 8, 2024, 14 he filed a complaint and an application for a temporary restraining order to stop a trustee’s sale 15 scheduled for April 10, 2024. Dkt. No. 1 (complaint); Dkt. No. 7 (TRO application). The parties’ 16 familiarity with the record is assumed, and a TRO is denied. 17 The reasons for the denial are straightforward. Although Ernest styled the application as 18 “ex parte,” he filed a declaration describing efforts to give notice to SPS. See Dkt. No. 7-2 ¶¶ 2, 3. 19 Consequently, the Court will evaluate the application as a noticed motion under the standards for a 20 preliminary injunction, which is a more generous approach than afforded by a true ex parte 21 application. See Fang v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 16-cv-6071-JD, 2016

, at *1 (N.D. Cal. Nov. 10, 2016), aff’d, 694 Fed. App’x. 561 (9th Cir. 2017). 23 The Court has written extensively on the governing standards, and incorporates those 24 discussions here. See Your Town Online, Inc., v. All Tribal Networks, LLC, Case No. 21-cv- 25 044412-JD,

, at *1 (N.D. Cal. July 9, 2021). In pertinent part, an injunction is 26 “an extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555

, 24 (2008). “A plaintiff seeking a preliminary injunction must establish that he is likely to 1 relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” 2 All. for the Wild Rockies v. Cottrell,

(9th Cir. 2011) (quoting Winter, 555 3 U.S. at 20). Alternatively, a preliminary injunction may issue where “serious questions going to 4 the merits were raised and the balance of hardships tips sharply in plaintiff's favor,” if the plaintiff 5 “also shows that there is a likelihood of irreparable injury and that the injunction is in the public 6 interest.” Id. at 1135. This reflects our circuit's “sliding scale” approach, in which “the elements 7 of the preliminary injunction test are balanced, so that a stronger showing of one element may 8 offset a weaker showing of another.” Id. at 1131; see also Arc of California v. Douglas,

(9th Cir. 2014). 10 Ernest has not demonstrated irreparable harm or a good reason for an injunction based on 11 the merits. With respect to irreparable harm, the complaint makes it abundantly clear that Ernest 12 has known for many months that SPS considered him to be in default on his loan payments, and 13 that his retention of ownership of the property was in question. Among other facts, the complaint 14 states that Ernest’s loan forbearance claims originated during the COVID-19 pandemic, Dkt. No. 1 15 ¶¶ 18-23, and that a notice of default was recorded on July 11, 2023, id. ¶ 27. A notice of a 16 trustee’s sale was recorded on February 29, 2024. Id. ¶ 30. In effect, he has known for nine 17 months that he was considered to be in default on the mortgage, and has known for over one 18 month about the trustee’s sale. 19 Even so, Ernest waited until April 8, 2024, at 5:52 p.m., to file the TRO application for a 20 trustee sale scheduled less than 48 hours later, on April 10, 2024, at 1:00 p.m. Why he waited 21 until the last minute is not explained. The application is utterly silent on why the delay might be 22 excusable. This seriously undercuts the demonstration of imminent harm required for the 23 extraordinary relief of an injunction. See Lingareddy v. Rubicon Mortg. Fund, LLC, No. 23-cv- 24 06467-JD,

, at *2 (N.D. Cal. Dec. 22, 2023); Anonomatic Inc. v. Skyflow Inc., 25 No. 22-cv-01469-JD,

, at *2 (N.D. Cal. Jan. 10, 2023); Lydo Enterprises, Inc. v. 26 City of Las Vegas,

(9th Cir. 1984). 27 Ernest’s showing on the ostensible merits is equally uncompelling. In the main, Ernest’s 1 Dkt. No. 1 958, 59, 72, 79, 85. The problem is that the complaint falls far short of providing 2 || facts that “state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ.

(b); see also McLellan v. Fitbit, Inc., No. 16-cv-00036-JD,

(N.D. Cal. June 4 5, 2018). For example, Ernest says SPS provided incorrect information about the forbearance 5 program, see Dkt. No. | §] 21, but the complaint presents only Ernest’s own understanding of the 6 || program’s terms, and not any facts about what SPS may have said, and when. This lack of 7 necessary detail runs throughout the complaint. 8 The suggestion that Ernest could not get forbearance information from SPS in violation of 9 || Section 2923.7 of the California Civil Code is at odds with the facts in the complaint. The 10 || complaint states that he obtained from SPS two separate reinstatement quotes to avoid foreclosure, 11 and that he “requested a more affordable payment option” from SPS, which was denied. Id. 29, 12 || 31. With respect to the claim that SPS violated Section 2924 of the California Civil Code by 5 13 refusing an offer of payment of the delinquent mortgage, the complaint alleges, again in contrary 14 || fashion, that Ernest was not able to make mortgage payments or pay amounts quoted in SPS’s 15 || reinstatement quotes. Id. 29, 31. 16 Overall, Ernest is a day late and a dollar short on a good reason for the issuance of a TRO. 17 || A TRO is denied. IT IS SO ORDERED. 19 || Dated: April 10, 2024 20 21 JAMES JPONATO 22 United Jtates District Judge 23 24 25 26 27 28