Singh BofA Opp to PI

7/30/2019 Singh BofA Opp to PI

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BRYAN CAVE, LLP

C. Scott Greene, California Bar No. 277445

Thomas S. Lee, California Bar No. 275706Michael J. Peng, California Bar No. 260852560 Mission Street, 25th FloorSan Francisco, CA 94105Telephone: (415) 675-3400Facsimile: (415) 675-3434E-mail: [email protected]

[email protected]

[email protected]

Attorneys for DefendantsBANK OF AMERICA, N.A., and RECONTRUST COMPANY, N.A.

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

KEVIN SINGH,

Plaintiff,

v.

BANK OF AMERICA, N.A.; RECONTRUSTCOMPANY, N.A.

Defendants.

Case No. 2:13-cv-00729-MCE-AC

DEFENDANTS OPPOSITION TO

PLAINTIFFS MOTION FOR

PRELIMINARY INJUNCTION

[REQUEST FOR TELEPHONICAPPEARANCE]

Chief Judge Morrison C. England, Jr.

Date: April 29, 2013Time: 10:00 a.m.Courtroom: 7

Action Filed: April 15, 2013Trial Date: Not Assigned

Case 2:13-cv-00729-MCE-AC Document 16 Filed 04/25/13 Page 1 of 16


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MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTIONPlaintiff Kevin Singh (Plaintiff) seeks a preliminary injunction to prevent the foreclosure

sale of real property located at 2544 Pheasant Hollow Drive, West Sacramento, California.

Plaintiffs Motion for Preliminary Injunction should be denied. Significantly, this Court does not

have jurisdiction because there is no complete diversity amongst the parties. Further, Plaintiff has

an adequate remedy at law. For these reasons, Plaintiff should not be granted injunctive relief. If

injunctive relief is granted, the Court should order Plaintiff to post a bond.

II. THERE IS NO DIVERSITY JURISDICATIONPlaintiffs Complaint alleges that [j]urisdiction is proper because this case involves an

amount at issue greater than seventy-five thousand dollars, and there exists complete diversity asbetween the parties to his suit. (Compl. 1.)

Under 28 U.S.C. 1332(a), diversity jurisdiction exists where the amount in controversy

exceeds $75,000 and no defendant party shares citizenship in the same state as the plaintiff. Exxon

Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553 (2005) (citing Strawbridge v. Curtiss, 3

Cranch 267, 2 L.Ed. 435 (1806)). For the purposes of diversity jurisdiction, national banking

associations are "deemed citizens of the States in which they are respectively located." 28 U.S.C.

1348. A national banking association is "located" in "the State in which its main office, as set

forth in its articles of association, is located." Wachovia Bank v. Schmidt, 546 U.S. 303, 307

(2006) (construing 28 U.S.C. 1348).

Here, ReconTrusts Amended Articles of Association identify the main office as being

located in Simi Valley, California. See Bedalla v. Bank of America, N.A.,No. 12-cv-02307-

RMW (N.D Cal. 2012) ("ReconTrust is a national banking association with its designated main

office in Simi Valley, California.") (Attached hereto as Exhibit A is a true and correct copy of

ReconTrusts Amended Articles of Association.) Therefore, ReconTrust is a citizen of

California for purposes of diversity jurisdiction and there is not complete diversity as Plaintiff



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III. INJUNCTIVE RELIEF SHOULD BE DENIED BECAUSE PLAINTIFF HAD ANADEQUATE REMEDY AT LAW

Plaintiffs request for an injunction should also be denied because an adequate remedy at

law existed and was available to Plaintiff prior to filing this Motion. California Civil Code section

2924 et. seq. provides a comprehensive framework for the regulation of a non-judicial

foreclosure sale pursuant to a power of sale contained in a deed of trust. Moeller v. Lien , 25 Cal.

App. 4th 807, 822 (1994). InMoeller, the Court held that injunctive relief would be inconsistent

with the comprehensive and exhaustive statutory scheme regulating non-judicial foreclosures Id.

at 821.

Under this framework, Plaintiff had the statutory right to reinstate his loan following

receipt of the Notice of Default: [A]t any time prior to entry of the decree of foreclosure,

[borrower] may pay to the beneficiary or the mortgagee or their successors in interest,

respectively, the entire amount due, at the time payment is tendered . . . . Cal. Civ. Code

2924c(1). Where a borrower pays the amount due, the loan is reinstated and the foreclosure is

rescinded. Cal. Civ. Code 2924c(2).

Plaintiff had an adequate remedy at law: reinstatement. His request for an injunction

against foreclosure should be denied.

IV. IF AN INJUNCTION IS GRANTED, PLAINTIFF MUST POST A BONDIf the Court is inclined to grant the Preliminary Injunction, Plaintiff must post an injunction

bond in an amount that the court considers proper to pay the costs and damages sustained by anyparty found to have been wrongfully enjoined or restrained. FRCP 65 (c). A courts failure to

require a bond upon issuing injunctive relief is reversible error. Hoechst Diafoil Co. v. Nan Ya

Plastics, Corp., 174 F3d 411, 421(4th Cir. 1999).

Here, if the Court is inclined to permit injunctive relief, the order should require Plaintiff to

make monthly bond payments in the amount of $2,700 to cover his monthly payments due on his

loan.



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V. CONCLUSIONFor the reasons and authorities set forth above, Plaintiffs request for a preliminary

injunction should be denied. If the Court grants a preliminary injunction, Plaintiff should be

ordered to make monthly payments.

Dated: April 25, 2013 BRYAN CAVE LLP

By: /s/Michael J. PengMichael J. Peng

Attorneys for DefendantsBANK OF AMERICA, N.A., andRECONTRUST COMPANY, N.A.



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EXHIBIT A



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Singh BofA Opp to PI

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