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IOAN
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Jul-24-2012 9:45 am
Case Number: CGC-12-522638
Filing Date: Jul-24-2012 9:43
Filed by:
Juke Box: 001 Image: 03696984
MEMORANDUM OF POINTS AND AUTHORITIES
RODOLFO VELASQUEZ VS. BANK OF AMERICA NATIONAL ASSOCIATION et al
001003696984
Instructions:
Please place this sheet on top of the document to be scanned.LAW OFFICES OF RUSSELL DAVIS
Russell Davis (SB 177959)
29 Lakewood Avenue
San Francisco, CA 94109 CLER _.
Tel.: (415) 409-5627 ey OF THE Court
Fax: (415) 520-2666 5
SEPUTY eR —
Attorneys for Plaintiff
THE SUPERIOR COURT OF SAN FRANCISCO COUNTY
UNLIMITED JURISDICTION
GC~la>
RODOLFO VELASQUEZ, ) ACTION NO.: c
) F336 3g
Plaintiff, J
) Points and Authorities in Support of
vs. ) Motion for Preliminary Injunction
)
BANK OF AMERICA NATIONAL ) Date: 61 30//3—
ASSOCIATION, AMERICA’S ) Time: 9:30 am
WHOLESALE LENDER, ) Dept.: 301
COUNTRYWIDE HOME LOANS INC., _ )
DOES 1-100 )
Defendants. )
)
STATEMENT OF FACTS
1. Atall times relevant herein, plaintiff RODOLFO VELASQUEZ was a resident of San Francisco
County and the only owner of his prior principal residence at 58 Lobos Street, San Francisco, CA,
94112 since at least 1986. Since he was 9 months old he has suffered with polio. His property is
described as: Beginning at a point on the Northerly line of Lobos Street, distant thereon 366 feet 8
inches Easterly from the easterly line of Plymouth Avenue; running thence Easterly and along said
line of Lobos Street 33 feet 4 inches; thence at a right angle Northerly 125 feet; thence at a right
angle Westerly 33 feet 4 inches; thence at a right angle Southerly 125 feet to the point of beginning.
Being a part of Lot no. 5 in Block “Q” Railroad Homestead Association. APN Lot 9, Block 7094.
2. Defendant BANK OF AMERICA (hereinafter BofA) is a corporation licensed to do business in
California. On information and belief, COUNTRYWIDE HOME LOANS INC. (hereinafter
COUNTRYWIDE) was a subsidiary of CountryWide Financial, Inc., and was a mortgage loanDn nF WwW N
originator and lender whose business was purchased by BofA in 2008. On information and belief,
AMERICA’S WHOLESALE LENDER (hereinafter LENDER) is a trade name for
COUNTRYWIDE HOME LOANS INC.
3. The plaintiff's residence was refinanced in 1999 with LENDER. The loan was a fixed rate, 30
year fully amortized loan. The interest rate was 6.625%, and the payments were $960.47. A copy
lof the note and deed of trust are attached as exhibit 1 to this complaint.
4. Both the note and deed of trust establish that LENDER was the beneficiary.
5. Defendant BofA is the successor in interest to COUNTRYWIDE HOME LOANS INC., and
currently services the subject loan and on information and belief owns the subject loan.
6. Sometime towards the end of 2009 BofA began to increase the amount of payments due on the
note. BoA claimed to need extra funds for an escrow; however, the original loan did not have an
escrow account. 7. Throughout the history of the loan, the plaintiff had always paid his full property
taxes in April, rather than paying in two installments (in December and again in April). However,
BofA paid them in December of 2009, and thereafter used this as an excuse to establish an escrow
account and to demand more money per month from the plaintiff. As he had always done previously,
the plaintiff attempted to pay his taxes in April; however, that check was returned by the City of San
Francisco as the taxes had already been unnecessarily paid by BofA.
8. Sometime in 2011, BofA finally informed the plaintiff that they had paid his 2009 property taxes.
Thereafter, the plaintiff called and wrote to BofA, vainly trying to pay BofA for the taxes. However,
his check was returned by BofA.
9. The plaintiff has always paid his property taxes and insurance in full. He tried multiple times to
inform customer service at the bank that their demand for more money was incorrect. He never
received a meaningful response from the bank.
10. BofA has also claimed that mortgage payments were not made for September, October and
INovember of 2010; however, the plaintiff has cancelled checks showing payment was in fact made.
Beginning in December of 2010, BofA has been returning the plaintiff's mortgage payment checks.
11. The plaintiff has continued to pay his property taxes in April and is current on such taxes.
He has tried to make timely payments, but BofA returns his checks.
-2-12. BofA recorded a Notice of Default and a Notice of Trustee’s Sale against the plaintiff's property
with a sale date of June 15, 2012; however, the sale date was vacated and a new date has not yet been
established. A new Notice of Default was recorded on April 27, 2012. See exhibit 1, attached
herein.
Argument
I. The court must analyze the likelihood that the plaintiff will prevail at trial and the
harm that plaintiff will suffer if the injunction is denied.
Courts should evaluate two interrelated factors when deciding whether or not to issue a
preliminary injunction. The first is the likelihood that the plaintiff will prevail on the merits at trial.
The second is the interim harm that the plaintiff is likely to sustain if the injunction were denied as
compared to the harm that the defendant is likely to suffer if the preliminary injunction were issued.
In Continental Baking [Co. v. Katz (1968) 68 Cal.2d 512, 67 Cal.Rptr. 761, 439 P.2d 889] [the] court
explained the theory behind this two-pronged test: '" [By] balancing the respective equities of the
parties, [the court] concludes that, pending a trial on the merits, the defendant should or that he should
not be restrained from exercising the right claimed by him." ' [Citation.]" Loder v. City of Glendale,
265 Cal.Rptr. 66, 68, 216 Cal.App.3d 777 (Cal. App. 2 Dist., 1989)
To qualify for preliminary injunctive relief plaintiffs must show irreparable injury, either
existing or threatened.’ ". (City of Torrance v. [21 6 Cal.App.3d 783] Transitional Living Centers for
Los Angeles, Inc. (1982) 30 Cal.3d 516, 526, 179 Cal.Rptr. 907, 638 P.2d 1304.) Id.
The general purpose of such an injunction is the preservation of the status quo until a final
determination of the merits of the action. [Citations]. Thus, the court examines all of the material
before it in order to consider ‘whether a greater injury will result to the defendant from granting the
injunction than to the plaintiff from refusing it; . . .' [Citations.]" (Continental Baking Co. v. Katz
(1968) 68 Cal.2d 512, 528.). Ross Dress for Less, Inc. v. Casden Park La Brea Retail LLC, B196810
(Cal. App. 1/24/2008) (Cal. App., 2008)
II. The plaintiff will suffer extreme prejudice if the sale of his home is not enjoined.
The plaintiff is a single person that purchased his home in 1986 for approximately $65,000.00.
The current loans recorded against the property total approximately $202,000.00. The properties
-3-value is between $355,000 and $385,000.00. See Declaration of Thomas Myers, para. 3-4, exhibit
2. Thanks to Prop. 13, the plaintiff's property tax assessment is only $101,000.00. Davis declaration,
para. 3, exhibit 2. Current property values in San Francisco for comparable properties are much
higher. The plaintiff is disabled and on a low fixed income. The current payments of $960.47 are
within his means. Davis declaration, para. 4, exhibit 3. In other words, this property is irreplaceable
and the plaintiff will suffer extreme harm if it is sold.
II. Defendant BofA has recorded a Notice of Default. Unless the sale of the subject
property is enjoined, BofA may sell the subject property prior to final adjudication of this
matier and the plaintiff will be irreparably harmed. BofA is not prejudiced by the granting of this
As stated in the Notice of Default, BofA can initiate foreclosure within 90 days from the
recording of that notice. Davis declaration, para.2, exhibit 1. A preliminary injunction will not
prejudice BofA, as there is adequate equity to protect its interest in the property and plaintiff has
always stood ready, willing and able to make his proper payments.
Plaintiff has maintained the property, is current on taxes and insurance, and is ready, willing
land able to bring his loan current immediately provided that BofA charges the proper amount of
money. Pursuant to the Notice of Default BofA can foreclose approximately 90 days after it was
recorded on April 27, 2012. This means that a foreclosure could happen prior to resolution of the
issues in the instant complaint. Before losing his house plaintiff must be allowed to develop his case.
The status quo must be maintained, otherwise there will be irreparable harm to the plaintiff if his
house is sold. More than being merely unique, this property is affordable. If the property is
foreclosed, the plaintiff will have lost his equity due to mistaken loan practices by BofA and he will
not be able to purchase another home. Further, there is absolutely no prejudice to BofA. Their loan
is oversecured by the house that is being maintained while this matter is adjudicated. Wherefore the
plaintiff submits that the balance of equities tips heavily in his favor and the court should grant this
motion for a preliminary injunction.
Vii
////oem IN DW
Conclusion
For the foregoing reasons, plaintiff respectfully requests the court to enjoin any trustee’s sale
lof the subject property until this instant matter concludes.
Dated: July 14, 2012
Russéll a Attorney for plaintiff
Rodolfo Velasquez
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IOAN SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Jul-24-2012 9:45 am Case Number: CGC-12-522638 Filing Date: Jul-24-2012 9:43 Filed by: Juke Box: 001 Image: 03696984 MEMORANDUM OF POINTS AND AUTHORITIES RODOLFO VELASQUEZ VS. BANK OF AMERICA NATIONAL ASSOCIATION et al 001003696984 Instructions: Please place this sheet on top of the document to be scanned.LAW OFFICES OF RUSSELL DAVIS Russell Davis (SB 177959) 29 Lakewood Avenue San Francisco, CA 94109 CLER _. Tel.: (415) 409-5627 ey OF THE Court Fax: (415) 520-2666 5 SEPUTY eR — Attorneys for Plaintiff THE SUPERIOR COURT OF SAN FRANCISCO COUNTY UNLIMITED JURISDICTION GC~la> RODOLFO VELASQUEZ, ) ACTION NO.: c ) F336 3g Plaintiff, J ) Points and Authorities in Support of vs. ) Motion for Preliminary Injunction ) BANK OF AMERICA NATIONAL ) Date: 61 30//3— ASSOCIATION, AMERICA’S ) Time: 9:30 am WHOLESALE LENDER, ) Dept.: 301 COUNTRYWIDE HOME LOANS INC., _ ) DOES 1-100 ) Defendants. ) ) STATEMENT OF FACTS 1. Atall times relevant herein, plaintiff RODOLFO VELASQUEZ was a resident of San Francisco County and the only owner of his prior principal residence at 58 Lobos Street, San Francisco, CA, 94112 since at least 1986. Since he was 9 months old he has suffered with polio. His property is described as: Beginning at a point on the Northerly line of Lobos Street, distant thereon 366 feet 8 inches Easterly from the easterly line of Plymouth Avenue; running thence Easterly and along said line of Lobos Street 33 feet 4 inches; thence at a right angle Northerly 125 feet; thence at a right angle Westerly 33 feet 4 inches; thence at a right angle Southerly 125 feet to the point of beginning. Being a part of Lot no. 5 in Block “Q” Railroad Homestead Association. APN Lot 9, Block 7094. 2. Defendant BANK OF AMERICA (hereinafter BofA) is a corporation licensed to do business in California. On information and belief, COUNTRYWIDE HOME LOANS INC. (hereinafter COUNTRYWIDE) was a subsidiary of CountryWide Financial, Inc., and was a mortgage loanDn nF WwW N originator and lender whose business was purchased by BofA in 2008. On information and belief, AMERICA’S WHOLESALE LENDER (hereinafter LENDER) is a trade name for COUNTRYWIDE HOME LOANS INC. 3. The plaintiff's residence was refinanced in 1999 with LENDER. The loan was a fixed rate, 30 year fully amortized loan. The interest rate was 6.625%, and the payments were $960.47. A copy lof the note and deed of trust are attached as exhibit 1 to this complaint. 4. Both the note and deed of trust establish that LENDER was the beneficiary. 5. Defendant BofA is the successor in interest to COUNTRYWIDE HOME LOANS INC., and currently services the subject loan and on information and belief owns the subject loan. 6. Sometime towards the end of 2009 BofA began to increase the amount of payments due on the note. BoA claimed to need extra funds for an escrow; however, the original loan did not have an escrow account. 7. Throughout the history of the loan, the plaintiff had always paid his full property taxes in April, rather than paying in two installments (in December and again in April). However, BofA paid them in December of 2009, and thereafter used this as an excuse to establish an escrow account and to demand more money per month from the plaintiff. As he had always done previously, the plaintiff attempted to pay his taxes in April; however, that check was returned by the City of San Francisco as the taxes had already been unnecessarily paid by BofA. 8. Sometime in 2011, BofA finally informed the plaintiff that they had paid his 2009 property taxes. Thereafter, the plaintiff called and wrote to BofA, vainly trying to pay BofA for the taxes. However, his check was returned by BofA. 9. The plaintiff has always paid his property taxes and insurance in full. He tried multiple times to inform customer service at the bank that their demand for more money was incorrect. He never received a meaningful response from the bank. 10. BofA has also claimed that mortgage payments were not made for September, October and INovember of 2010; however, the plaintiff has cancelled checks showing payment was in fact made. Beginning in December of 2010, BofA has been returning the plaintiff's mortgage payment checks. 11. The plaintiff has continued to pay his property taxes in April and is current on such taxes. He has tried to make timely payments, but BofA returns his checks. -2-12. BofA recorded a Notice of Default and a Notice of Trustee’s Sale against the plaintiff's property with a sale date of June 15, 2012; however, the sale date was vacated and a new date has not yet been established. A new Notice of Default was recorded on April 27, 2012. See exhibit 1, attached herein. Argument I. The court must analyze the likelihood that the plaintiff will prevail at trial and the harm that plaintiff will suffer if the injunction is denied. Courts should evaluate two interrelated factors when deciding whether or not to issue a preliminary injunction. The first is the likelihood that the plaintiff will prevail on the merits at trial. The second is the interim harm that the plaintiff is likely to sustain if the injunction were denied as compared to the harm that the defendant is likely to suffer if the preliminary injunction were issued. In Continental Baking [Co. v. Katz (1968) 68 Cal.2d 512, 67 Cal.Rptr. 761, 439 P.2d 889] [the] court explained the theory behind this two-pronged test: '" [By] balancing the respective equities of the parties, [the court] concludes that, pending a trial on the merits, the defendant should or that he should not be restrained from exercising the right claimed by him." ' [Citation.]" Loder v. City of Glendale, 265 Cal.Rptr. 66, 68, 216 Cal.App.3d 777 (Cal. App. 2 Dist., 1989) To qualify for preliminary injunctive relief plaintiffs must show irreparable injury, either existing or threatened.’ ". (City of Torrance v. [21 6 Cal.App.3d 783] Transitional Living Centers for Los Angeles, Inc. (1982) 30 Cal.3d 516, 526, 179 Cal.Rptr. 907, 638 P.2d 1304.) Id. The general purpose of such an injunction is the preservation of the status quo until a final determination of the merits of the action. [Citations]. Thus, the court examines all of the material before it in order to consider ‘whether a greater injury will result to the defendant from granting the injunction than to the plaintiff from refusing it; . . .' [Citations.]" (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528.). Ross Dress for Less, Inc. v. Casden Park La Brea Retail LLC, B196810 (Cal. App. 1/24/2008) (Cal. App., 2008) II. The plaintiff will suffer extreme prejudice if the sale of his home is not enjoined. The plaintiff is a single person that purchased his home in 1986 for approximately $65,000.00. The current loans recorded against the property total approximately $202,000.00. The properties -3-value is between $355,000 and $385,000.00. See Declaration of Thomas Myers, para. 3-4, exhibit 2. Thanks to Prop. 13, the plaintiff's property tax assessment is only $101,000.00. Davis declaration, para. 3, exhibit 2. Current property values in San Francisco for comparable properties are much higher. The plaintiff is disabled and on a low fixed income. The current payments of $960.47 are within his means. Davis declaration, para. 4, exhibit 3. In other words, this property is irreplaceable and the plaintiff will suffer extreme harm if it is sold. II. Defendant BofA has recorded a Notice of Default. Unless the sale of the subject property is enjoined, BofA may sell the subject property prior to final adjudication of this matier and the plaintiff will be irreparably harmed. BofA is not prejudiced by the granting of this As stated in the Notice of Default, BofA can initiate foreclosure within 90 days from the recording of that notice. Davis declaration, para.2, exhibit 1. A preliminary injunction will not prejudice BofA, as there is adequate equity to protect its interest in the property and plaintiff has always stood ready, willing and able to make his proper payments. Plaintiff has maintained the property, is current on taxes and insurance, and is ready, willing land able to bring his loan current immediately provided that BofA charges the proper amount of money. Pursuant to the Notice of Default BofA can foreclose approximately 90 days after it was recorded on April 27, 2012. This means that a foreclosure could happen prior to resolution of the issues in the instant complaint. Before losing his house plaintiff must be allowed to develop his case. The status quo must be maintained, otherwise there will be irreparable harm to the plaintiff if his house is sold. More than being merely unique, this property is affordable. If the property is foreclosed, the plaintiff will have lost his equity due to mistaken loan practices by BofA and he will not be able to purchase another home. Further, there is absolutely no prejudice to BofA. Their loan is oversecured by the house that is being maintained while this matter is adjudicated. Wherefore the plaintiff submits that the balance of equities tips heavily in his favor and the court should grant this motion for a preliminary injunction. Vii ////oem IN DW Conclusion For the foregoing reasons, plaintiff respectfully requests the court to enjoin any trustee’s sale lof the subject property until this instant matter concludes. Dated: July 14, 2012 Russéll a Attorney for plaintiff Rodolfo Velasquez